MINE SAFETY AND HEALTH ADMINISTRATION + + + + + DIESEL PARTICULATE MATTER EXPOSURE OF UNDERGROUND METAL AND NONMETAL MINERS PUBLIC HEARING + + + + + WEDNESDAY JANUARY 11, 2006 + + + + + Rooms F&E Clarion Hotel 9103 East 39th Street Kansas City, Missouri The above-entitled matter came on for public hearing, pursuant to notice, at 9:00 a.m. PANEL MEMBERS: EDWARD SEXAUER JIM PETRIE DORIS CASH GEORGE SASEEN BILL POMROY DEBORAH GREEN WILLIAM BAUGHMAN I N D E X SPEAKER PAGE John Griesemer 19 Michael Root 31 Pete Kaser 49 Dave Ortlieb 57 Joseph Rael 62 Veto Villapando 63 John Griesemer 90 P-R-O-C-E-E-D-I-N-G-S MR. SEXAUER: Good morning. My name is Edward Sexauer. I am Chief of the Regulatory Division of the Office of Standards, Regulations and Variances for the Mine Safety and Health Administration, and I will be the moderator for today's hearing. On behalf of David Dye, Acting Assistant Secretary for Mine Safety and Health, I want to welcome all of you here today. Let me start by asking that in memory of the 12 miners, who perished last week in the tragedy of the Sago Mine, and an additional miner who's perished this week in, I believe, a ground fall near eastern Kentucky, let's begin the hearing with just a moment of silence, please. (Pause.) MR. SEXAUER: Thank you. The purpose of this hearing is to obtain public input on MSHA's proposed rule published in the Federal Register on September 7, 2005, addressing Diesel Particular Matter Exposures of Underground Metal and Nonmetal Miners. Joining me on the hearing panel today are Jim Petrie to my right  Jim is the district manager of MSHA's Northeastern District for Metal and Nonmetal and Chair of the Diesel Particular Matter Rulemaking Committee. On Jim's right is Doris Cash with Metal and Nonmetal Health Division and William Baughman with the Office of Standards, Regulations and Variances. On my left is Deborah Green with the Office of the Solicitor for Mine Safety and Health. To Deborah's immediate left is George Sateen with MSHA's Technical Support Directorate and Bill Pomeroy from MSHA's Metal and Nonmetal North Central District. Also from the Office of Standards, Regulations and Variances Carl Lundgren, an economist with our staff, is here. Let me reemphasize our purpose for being here today is to obtain your views on the September 7 proposed rule. This hearing is being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is the practice of this Agency, formal rules of evidence will not apply. Therefore, cross-examination of the hearing panel will not be allowed. But the hearing panel may explain and clarify provisions of the proposed rule in response to questions. Members of the public will not be permitted to cross-examine speakers. Also, as moderator of this public hearing, I reserve the right to limit the amount of time each speaker is given, as well as questions of the hearing panel. From the sign-up sheet I don't think that's going to be an issue today. Those of you who have notified MSHA in advance of your intent to speak will be allowed to make your presentations first. I will call speakers in the order that requests were made. Following these presentations, others who request an opportunity to speak will be allowed to do so. We invite all interested parties to present their views at this hearing. And if you wish to speak, please be sure to sing in at the registration table or when we're finished. Just let me know during the break. We will remain in session today until everyone who desires to speak has an opportunity to do so. Also, if you are not signing up to speak today, we would like you to sign the general sign-in sheet so that we have an accurate records of today's attendance. That sign-up sheet is just outside the entrance to the room. We will accept written comments and data at this hearing from any interested party, including those who are not speaking. You can give written comments on this hearing today, or you can send them to MSHA's Office of Standards electronically, by fax, by regular mail or hand delivery using the address information listed in the Federal Register publications. That address is included in the copy of the proposed rule we have just outside the entrance to this room. This is the third of four hearings. The first hearing was held in Arlington, Virginia, on January 5; the second hearing was held in Salt Lake City this past Monday. This is the third hearing. The final hearing will be in Louisville, Kentucky, on Friday, January 13. The post-hearing comment period will end on January 27, 2006. A transcript of this hearing will be made part of the record, and it will be posted on our website at www.msha.gov. Before I begin, I would like to give you some background on the proposed rule that we are addressing today. On January 19, 2001 we published a final rule addressing health hazards to underground metal and nonmetal miners from exposure to diesel particulate matter. I'll be referring to that as DPM. The rule established new health standards for these miners by required, among other things, use of engineering and work practice controls to reduce DPM to prescribed limits. It set an interim and final DPM concentration limit for underground metal and nonmetal mining environment with staggered effective dates for implementation of the concentration limits. The interim concentration limit 400 total carbon micrograms/cubic meter was to become effective on July 20, 2002. The final concentration limit of 160 total carbon micrograms/cubic meter was scheduled to become effective January 20, 2006. On January 29, 2001, several mining trade associations and individual mine operators challenged the final rule. The United Steelworkers of America intervened int the case, which is now pending in the United States Court of Appeals for the District of Columbia Circuit. The parties agreed to resolve their differences through settlement negotiations with us, and we delayed the effective date of certain provisions of the standard. On July 5, 2001, as a result of Phase 1 settlement negotiations, we published two notices in the Federal Register. One notice delayed the effective date of Section 57.5066(b) related to tagging requirements in the maintenance standard. The second notice proposed a rule to make limited revisions to Section 57.5066(b) and added a new paragraph to Section 57.5067(b), "Engines," regarding the definition of the term "introduced." We published the final rule on February 27, 2002. Phase 2 of the settlement agreement was finalized on July 15, 2002 as a written agreement. Under the agreement, the interim concentration limit of total carbon micrograms/cubic meter became effective on July 20, 2002. We afforded mine operators one year to develop and implement good faith compliance strategies to meet the interim concentration limit, and we agreed to provide compliance assistance during this one-year period. We also agreed to proposed rulemaking on several other disputed provisions of the 2001 final rule. The legal challenge to the rule was stayed pending completion of this additional rulemaking. On September 25, 2002, we published an Advance Notice of Proposed Rulemaking or ANPRM. We noted in the ANPRM that the scope of the rulemaking was limited to the terms of the Second Partial Settlement Agreement and proposed a series of questions to the mining community related to the 2001 final rule. We also stated our intent to proposed a rule to revise the surrogate for the interim and final concentration limits and to propose a DPM control scheme similar to that included in our longstanding hierarchy of controls used in our air quality standards for metal and nonmetal mines. In addition, we stated that we would consider technological and economic feasibility for the metal and nonmetal industry to comply with revised interim and final DPM limits. We determined at that time that some mine operators had begun to implement control technology on their underground diesel-powered equipment. Therefore, we requested relevant information on current experiences with availability of control technology, installation of control technology, effectiveness of control technology to reduce DPM levels and cost implications of compliance with the 2001 final rule. On July 20, 2003, we began full enforcement of the interim concentration limit of 400 total carbon micrograms/cubic meter. Our enforcement policy was also based on the terms of the second partial settlement agreement and included the use of elemental carbon  EC  as an analyte to ensure that a citation based on the 400 TC concentration limit is valid and not the result of interferences. The policy was discussed with the DPM litigants and stakeholders on July 17, 2003. In response to our publication of the ANPRM, some commenters recommended that the propose separate rulemaking for revising the interim and final concentration limits to give us an opportunity to gather further information to establish a final DPM limit, particularly regarding feasibility. In the subsequent notice of proposed rulemaking  NPRM  published August 14, 2003, we concurred with those commenters and notified the public in the NPRM that we would propose a separate rulemaking to amend the existing final concentration limit of 160 total carbon. We also requested comments on an appropriate final DPM limit and solicited additional information on feasibility. The proposed rule also addressed the interim concentration limit by proposing a comparable Permissible Exposure Limit  or PEL  of 308 micrograms/cubic meter based on the elemental carbon surrogate and included a number of other provisions. On June 6, 2005, we published the final rule revising the interim concentration limit. This rule changed the interim concentration limit of 400 micrograms/cubic meter by TC, to a comparable PEL of 308 micrograms/cubic meter based on EC. The rule requires our longstanding hierarchy of controls that is used by other exposure-based health standards at metal and nonmetal mines. But it retains the prohibition on rotation of miners for compliance. Furthermore, the rule, among other things, requires us to consider economic as well as technological feasibility in determining if operators qualify for an extension of time in which to meet the final DPM limit and deletes the requirement for a control plan. Currently the following provisions of the DPM standard are effective: 57.5060(a), establishing the interim PEL 308 micrograms of EC per cubic meter of air, which is comparable in effect to 400 micrograms of TC per cubic meter of air; 57.5060(d), addressing control requirements; 57.5060(e), prohibiting rotation of miners for compliance with the DPM standard; 57.5061, compliance determinations; 57.5065, fueling practices; 57.5066, maintenance standards; 57.5067, engineers; 57.5070, miner training; 57.5071, exposure monitoring, and 57.5075, diesel particulate records. On September 7, 2005 we proposed a rule to phase in the final DPM limit, because we're concerned that there may be feasibility issues for some mines to meet that limit by January 20, 2006. Accordingly we proposed a five-year phase-in period and noted our intent to initiate a separate rulemaking to convert the final DPM limit from a total carbon limit to an elemental carbon limit. We set hearing dates and a deadline for receiving comments on the September 7, 2005 proposed rule, with the expectation that we would complete the rulemaking to phase in the final DPM limit before January 20, 2006. However, after publication of the September 7, 2005 proposed rule, we received a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union  USW  for more time to comment on the proposed rule. The USW explained that Hurricane Katrina had placed demands on their resources that prevented them from participating effectively in the rulemaking under the current schedule for hearings and comments. We recognized the USW's need to devote resources to respond to the aftermath of Hurricane Katrina and the impact that would have on their participation under the established timetable. We also received a request from the National Stone, Sand and Gravel Association  NSSGA  for additional time to comment on the proposed rule and for an additional public hearing in Arlington, Virginia. Accordingly, due to requests from the USW and the NSSGA, we published a notice on September 19, 2005 that changed the public hearing dates from September 2005 to January 2006 and extended the public comment period from October 14, 2005 to the current January 27, 2006. In addition on September 19, 2005 we published a notice in the Federal Register temporarily delaying the applicability date for 57.5060(b) published in the Federal Register on January 19, 2001 from January 20, 2006 to May 20, 2006 to provide sufficient time to complete the September 7, 2005 proposed to amend the 2001 DPM rule. At this time Jim Petrie, the chairman of the Diesel Particulate Committee, will present an overview of the proposed rule. After Jim's presentation, I'll begin to call speakers. Jim. MR. PETRIE:  Thank you, Ed. This proposal is fairly narrow in scope. It would revise the effective date of the final diesel particulate matter limit and delete the existing provision that restricts newer mines from applying for extensions of time for meeting the final limit. Additionally we request public comments on a number of significant issues, including the appropriateness of including in a final rule a provision for medical evaluation of miners required to wear respirators and the transfer of miners who are unable to wear them, and the appropriate factor for converting the final limit from total carbon to elemental carbon, although as Ed said, MSHA will address this in separate rulemaking. Regarding revising the effective date of the final diesel particulate matter limit, the proposed rule would gradually phase in the 2001 DPM final concentration limit of 160 micrograms of total carbon per cubic meter of air of a period of five years, until the final limit of 160 micrograms is reached in January 2011. The current interim limit of 308 micrograms of elemental carbon will remain in effect until May 20, 2006. Thereafter, the first phase-in final limit would be the same as the current interim limit of 308 micrograms of elemental carbon. That would be effective until January 20, 2007. The final limit would be reduced each year through January 20, 2011 as follows: On January 2007, it would be reduced to 350 micrograms of total carbon; January 2008, 300; January 2009, 250; January 2010, 200; and January 2011, 160 micrograms per meter cube of total carbon. The preamble to the proposed rule include extensive discussion on MSHA's 2001 assumptions regarding technological feasibility. Our current concerns then tend to these which question these assumptions, implementation issues with available control technology, and our proposed assessment of the availability of alternative control technologies. MSHA requested that commenters address these and issues related to the scope of the proposed rule. Regarding limitations on the extension of time for meeting the final limit, the proposal would delete 57.5060(c)(3)(i). The 2001 rule restricted MSHA from granting extensions to a mine operator if diesel-powered equipment was not used in the mine prior to October 29, 1998. This was because diesel-powered equipment, prior to the date of the notice of the proposed rulemaking, could experience compliance difficulties relating to such factors as the basic mine design, use of older equipment with higher DPM emissions, and other factors. Also we believe that mines opening after October 29, 1998 would be using equipment with cleaner engines that would have less difficulty meeting the final concentration limit. Presently MSHA believes that this restriction is unnecessary, since applications for extensions are voluntary and the test for granting an extension is similar to that of enforcing existing 57.5060(d) for the hierarchy of controls. The preamble discussion clarifies that we will begin to consider granting extensions due to technological or economic constraints for the initial final PEL of 308 micrograms of elemental carbon in January 2006. And this has now been extended to May 20, 2006. MSHA requested comments on the effects of deleting the requirement, the number of miners affected if the provision were eliminated, and whether the elimination would result in a reduction of health protection for miners. Regarding comments requested on a medical evaluation and transfer, specific comments are requested on whether the final rule should provide for a medical evaluation of miners who must wear respirators and transfer of those miners who are deemed medically unable to wear them. In the preamble to the proposed rule, MSHA included a specific example of regulatory language that could be included in a final rule and requested extensive comments regarding the following issues: whether the final rule should contain provision for medical evaluation and transfer of miners; whether the mine operators should be required to notify the district manager of the health professional's evaluation and that the miner will be transferred; whether MSHA should include in the rule a specific time frame for transferring the miner; whether the mine operator should have to maintain a record of the medical evaluation and if so, for how long should the record be maintained; whether the provision include protection of medical confidentiality; costs to the mine operators for implementing such a requirement, and other relevant information and data. Regarding our request for comments on developing an appropriate conversion factor, MSHA will initiate separate rulemaking to determine what the correct total carbon to elemental carbon conversion will be for the phased-in final limits. In the interim, MSHA wants your comments on data for establishing an appropriate conversion factor and time period for phase-in of the final limit, technological implementation issues and the cost and benefits of the rule. Also we are interested in your views on any other scientific approaches for converting existing total carbon limit to an appropriate elemental carbon limit. If MSHA does not complete the rulemaking to convert the final limits before January 20, 2007, the Agency is considering using the current 1.3 conversion factor that we used to establish the interim diesel particular matter PEL of 308 elemental carbon to convert the phased-in final DPM total carbon limit to elemental carbon equivalents. Regarding economic feasibility, MSHA stated in the preamble to the proposed rule that the Agency intended to use the entire rulemaking record supporting the 2001 final rule and the new information gathered during the recent rulemaking to promulgate the new interim PEL. The data suggests that few mines would experience economic feasibility problems in meeting the interim limit. However, MSHA's interested in gathering more information on economic feasibility implications, especially in light of recent technological developments, leading the Agency to propose a phased-in approach to meeting the ultimate final limit of 160 micrograms. Ed. MR. SEXAUER:  Thank you, Jim. If I may, Jim, I think you used the term "milligram." And I think you probably meant microgram per cubic meter. MR. PETRIE:  Yes. I'm sorry. Micrograms per cubic meter. You're right. MR. SEXAUER:  Before I call the first speaker, let me just mention some logistics here. The microphones have been set down a little bit because of a potential for feedback. So with that adjustment, it's necessary to be fairly close to the microphone when you speak, so that we can pick it up for our transcript. So with that in mind, let me call the first speaker. When I call you to speak, please come to the speaker's table and begin your presentation by identifying yourself and your affiliation for the record. If you have a separate, prepared statement or any supporting documents for the record, please leave a copy with me. The first speaker I have is John Griesemer. MR. GRIESEMER:  Good morning. MR. SEXAUER:  Good morning. MR. GRIESEMER:  I really didn't want to be first. My name is John Griesemer. I'm vice president of Springfield Underground, here representing our company. Our company has been involved in underground mining for over 60 years. Our company is active in trade associations, and one of our employees, Mark Ecks, sits on the National Stone, Sand and Gravel diesel task force committee, but was unable to be here today. Springfield Underground appreciate the efforts of MSHA to consider the data that's been presented over the past few years as the rulemaking has evolved. It's a difficult issue for all of us to deal with. Our general concern is the lack of technology currently available to comply with the levels. Springfield Underground is committed to the health and safety of our miners. We currently employ about 15 people underground, and we also operate an open pit mine. The safety and health of our miners is our number one priority. We're very proud of our safety record in the past, and we want to do all we can to maintain the health and safety of our employees. So, please, all my comments today are with that in light. I want to say that any rule propagated by MSHA that we have been able to comply with we have not commented on. There have been a number of rules and proposed regulations in the last several years that we have remained silent on, because we knew how we would comply. The diesel particular matter regulation is one that we are not sure in the later phase-in period how we would comply with this regulation. Some of our concerns as a small operator currently are the sampling capabilities and repeatability. The location of the samples relative to the operator and the sampling methodology seem to be highly variable, at least in our mind. Shifting to elemental carbon, in our opinion, is a positive step. But it still has variability that has made it difficult to achieve repeatability in the testing. As I already stated, the current methods to achieve compliance are not economic feasible or present other hazards to employees, specifically some of the filtration technology that we've investigated. I would state that we have not tried those technologies as of yet. As I said, the current filtering technology is a capital cost and a long-term operating cost that's difficult to absorb in the operations. Implementation of a standard prior to new equipment technology being available is one of our concerns. We believe that the solution should start with equipment manufacturers and engine manufacturers, and in time through maintenance practice required by this rule will cause DPM levels to be reduced. We are a fairly unique and underground mine, in that we are shallow. The roof of our mine is approximately 60 feet below ground. Currently we have seven air shafts in our underground mine. The majority of our ventilation costs, which we believe is the most effective method for complying with DPM  the cost of those are covered by  as I said our unique situation, where we are developing the underground for commercial uses. So the ventilation cost is borne by our developed areas, and our mining operations benefit from that ventilation. As I said, it's a unique situation. As I stated earlier, are currently or not concerned  I believe the term is interim or the current level  is the later phase-in that we do not know how we will comply with. We have experimented with biodiesel fuels. That was one of your questions. We have tried that. Success  as I said, reliability and repeatability of the testing is one of our concerns. The other concern we have with biodiesel is availability. We are currently unable to get shipments of biodiesel, partly, I believe, because of demand for it, because it's a cost savings to a lot of people. In summary, I would say this rulemaking, although much better than the originally proposed, leaves small operators with a lot of uncertainty. We would suggest that you strongly consider the limits at the current levels and not force them down over the five-year phase-in period. Requirements to improve the emissions standards by manufacturers and the already-implemented engine maintenance requirements will over time do more to reduce DPM levels than an arbitrary level set without feasible means of compliance. I want to thank you for your time. I would entertain any questions, if the panel has any. MR. SEXAUER:  John, thank you. Jim. MR. PETRIE:  Your underground mine is limestone. Right? MR. GRIESEMER:  Yes, sir. MR. PETRIE:  It's the commodity you're mining. MR. GRIESEMER:  Yes, sir. Mainly for construction. Aggregate use is actually almost exclusively construction aggregate uses. MR. PETRIE:  Is it natural ventilation? MR. GRIESEMER:  No, sir. MR. PETRIE:  Or is it mechanical? MR. GRIESEMER:  Mechanical. MR. PETRIE:  Do you have any kind of a medical evaluation program for any of your miners that may be required to wear respirators? And if so, how often do you conduct a medical evaluation? MR. GRIESEMER:  We currently don't have any employees that are required to wear respirators. We do do medical evaluation for hearing. MR. PETRIE:  Okay. MR. SEXAUER:  Doris. MS. CASH:  You said you had tried biodiesel. Right? MR. GRIESEMER:  Yes, ma'am. MS. CASH:  There were some problems with getting a supply of it. MR. GRIESEMER:  Yes, ma'am. MS. CASH:  What grade do you know of biodiesel? Like a B-5, B-20. Was it a low amount of biodiesel or very high? MR. GRIESEMER:  We tried different percentage mixes. We were not to 100 percent when we were unable to receive it. I believe we were up to a 60/40. I'd have to check, and I can before you leave here today. I'll find out what grade it was that we were trying. MS. CASH:  Okay. We're you able to get any results? Do you know what type of reductions or any change in your exposure levels or in your emission levels  were you able get that? MR. GRIESEMER:  Not that we were able to document. MS. CASH:  Okay. Thank you. MR. SEXAUER:  Jim. MR. PETRIE:  Is your mine currently in compliance with the 308 milligram limit? MR. GRIESEMER:  Yes, sir, we are. MR. PETRIE:  Do you foresee any problem in meeting that limit in the future? MR. GRIESEMER:  No, we do not. MR. SEXAUER:  John, you indicated you'd have some additional information. We need to get that on the record. So if you do get it, if you would just bring it to our attention before we close today. MR. GRIESEMER:  Okay. MS. CASH:  Or for your information also, if there's additional information, you  or anybody else  wants to submit, they can still send it to use before the end of the comment period. So if there's information we ask for today or you think of something else you want to add to what you've already told us, you can still send that to us. MR. GRIESEMER:  Okay. I would make one other comment on the transferability of miners. When you're a small operator with 12 people, moving people around to comply is not necessarily feasible in our case. We don't have a large labor pool. To move people is a lot of times restricted from skills and union contracts. We have three union contracts covering 12 people, and transferring positions is sometimes impossible. MR. SEXAUER:  George. MR. SUSEEN:  John, can you tell us what size engines are in your equipment underground, horsepower size? MR. GRIESEMER:  Horsepower  ballpark around 250-300 horsepower. We're running mainly 35-ton trucks and a Caterpillar 988-F front-end loader. MR. SUSEEN:  Okay. Do you feel you've reduced your levels? Have you had changeover in engines to newer engines? Has that made a difference? Or have you not changed your fleet? MR. GRIESEMER:  We haven't changed our fleet. Actually I take that back. We replaced one older truck with a new cab truck with a newer engine. But it was new to us. It was not a new truck. MR. SUSEEN:  Could you provide us with what engine models your fleet is? MR. GRIESEMER:  I'll try. MR. SUSEEN:  And the year of the engines  the manufacturing date. MR. GRIESEMER:  Okay. I'll try. MR. SUSEEN:  And you said you haven't looked into any filter technologies. MR. GRIESEMER:  Just the data available from MSHA and the data available from NIOSH and from our trade associations. From what we've seen it's not a process that we want to try at this point, because we are in compliance today. But in looking in the long-term, as the levels are driven down, we may have to look at it. MR. SUSEEN:  All right. Thank you. MR. SEXAUER:  Bill. MR. POMEROY:  Yes. Just to follow up on the filters. You're in compliance now, so you really don't need to use filters. But you're kind of looking at them as a possible strategy for the future. What is it about filters that concerns you the most? MR. GRIESEMER:  Well, I think the NIOSH study is probably the one that concerned me the most  that talked about some of the concerns with  there was an issue of fire, as I recall. There was the problem of having to bake the filters nightly to bake off some of the carbon, as I recall. That was a concern for our operating people, exactly how that would transpire. The fact that some of the filters would not go up full shift, that we'd have to change them mid-shift. In our situation, that's  again with the small number of people, we're shutting down the entire operation to change out a filter. Mainly this is loading and hauling equipment that we're using. So we'd be shutting down the entire operation to change those filters. MR. POMEROY:  What's your typical work shift? Twenty hours? MR. GRIESEMER:  Eight to ten hours. We're a single-shift operation. MR. POMEROY:  One shift a day. MR. GRIESEMER:  Yes, sir. MR. POMEROY:  Do you do any work at all in the off-shift? Any maintenance work? MR. GRIESEMER:  No. MR. POMEROY:  Drilling or anything? MR. GRIESEMER:  No, sir. MR. POMEROY:  Okay. A fleet would be a drill, scalar production loader, clean-up loader, two or three haul trucks. MR. GRIESEMER:  Exactly. And a couple man lifts. MR. POMEROY:  What's the roof height? MR. GRIESEMER:  On a first pass we're 30 feet, and then we bench at 12 foot. So we're 42 finished foot. MR. POMEROY:  Okay. Do you know what your ventilation quantity is? MR. GRIESEMER:  We're over 400,000 cfm. MR. POMEROY:  And is that pretty much constant year round? MR. GRIESEMER:  Yes, it is. And as I said, the cost of that is borne by our developed areas. So that cost for us  we're a unique situation  doesn't get borne out in the mining side. MR. POMEROY:  All your equipment have cabs? MR. GRIESEMER:  Except for the man lifts. Yes, sir. MR. POMEROY:  Okay. What is the ventilation scheme? Do you intake through the shafts? MR. GRIESEMER:  The majority of our shafts are exhaust shafts. We do have one downcast shaft. Several of them are reversible. But we don't normally reverse them. MR. POMEROY:  You haul out in mine with the haulage trucks. MR. GRIESEMER:  Our primary crusher is underground. MR. POMEROY:  Okay. So you haul out on the belt. MR. GRIESEMER:  Yes, sir. MR. POMEROY:  Just a couple of follow-up questions on the biodiesel fuel. How long were you using the biodiesel? Was it sort of in separate episodes? Or was it sort of a period of a couple of years? MR. GRIESEMER:  Actually I believe we just started about six months ago. We started with some blends, because we had some maintenance concerns. We tried it once before  I want to say seven, eight years ago. It shut down several pieces of equipment when we got the concentrations too heavy. So we were a little leery about trying it this time, and we started with some small blends. Cold weather was a problem for our jobber, in that he couldn't pump the bio to us, so we were unable to get it. Then most recently they are totally out. So we haven't  the experimentation and increase in percentages we had to stop, because we couldn't get the availability. Now, I understand that in the State of Missouri, I think there's a couple plants coming on line. But don't know when those will be. MR. POMEROY:  How do you store your fuel? Is it on the surface or underground? MR. GRIESEMER:  It's underground. MR. POMEROY:  Does the distributor bring his on-highway truck right into the mine then to offload into your tanks? MR. GRIESEMER:  Yes. MR. POMEROY:  Do you know what your fuel usage is per month? MR. GRIESEMER:  About 8,000 gallons. That's surface and underground. MR. POMEROY:  Right. I think that's it. MR. SEXAUER:  Jim. MR. PETRIE:  One final question, John. Is there any particular occupations or equipment that you feel might have difficulty in complying with the phase-in limits? MR. GRIESEMER:  Personally I believe we've got a problem with the employees that are not in cabs. Our hand scalers and man baskets. The biggest risk is our explosive-loading employee, because he's in a man basket. Our info-loading rig runs to create air pressure to pneumatically load the info. So he's close to a running engine. If he's in a dead end header, I think we will have a problem. MR. PETRIE:  Okay. Thank you very much. MR. GRIESEMER:  Also those guys  they're not moving. They're in one location for long periods of time. The haul truck drivers are moving, and the other ones are not. MR. PETRIE:  Okay. Thank you. MR. SEXAUER:  Okay. Thank you very much, John. MR. GRIESEMER:  I've got some homework. I'll get busy. MR. SEXAUER:  Our next speaker is Michael Root. MR. ROOT:  Good morning. MR. SEXAUER:  Good morning. MR. ROOT:  My name is Michael Root. I'm here on behalf of Bruening Rock Products, Skyline Mine number one is Knoxsville, Iowa. If you don't mind, I'll use my little notes that I've scribbled here. On behalf of Bruening Rock Products, I'm testifying in opposition to the proposed diesel particular matter rule proposed by the Mine, Health and Safety Administration in the September 7, 2005 Federal Register. Our company is a member of the National Stone, Sand and Gravel Association, and we support the more detailed testimony and written comments that are being submitted to the administrative record by the Association. We are a small, family business with a single underground mining operation with 17 employees, eleven of which are underground on an average shift day. We are among the approximate eleven active mines in Iowa that are currently subject to the interim exposure limit for the diesel particular matter, which would be affected by the proposed rule. We've explored several different control technologies in order to keep our diesel particular matter exposure within the interim limit. In order to meet the proposed rule's mandatory limit, further control technology would not only be necessary, but in an operation of our size, would be cost-prohibitive and cause undue and unnecessary economic hardships. We currently use a very limited number of diesel machines in our operations. These consist of a one-year old 92-G Cat end-loader, a six-month old tier-three engine scaler, five International 9700 haul trucks, which are six months old to two years old, a six-year old cannon drill and a six-year old Getman powder wagon. We currently ventilate our operations through an air shaft, moving 180,000 cubic feet/minute into the underground area. At the same time we're currently exhausting 165,000 cubic feet/minute. Even with booster fans and low-emission engines running on low-sulfur fuel, we can barely stay under the interim level of 308 micrograms/cubic meter. On our last personal exposure, we ran from a low of 126 to a high of 289. Any future reduction of diesel particular matter based on total carbon would require our operation to make a large capital investment. Even after making this type of mandatory investment, we have no guarantee with the available technology that we could meet the proposed mandatory limits. The larger question is, has the manufacturing industry that provides the machinery for the mining industry had the necessary technology, resources and time to improve the controls required to make compliance attainable. Keep in mind these are the same industries expected to support the war effort since 2003 and help provide support for all of the disasters that have surrounded us since 2001. If this proposed rule takes effect as published in the September 7, 2005 Federal Register, it would without a doubt cause numerous problems, undue economic stress on small mining operations like ours. We've experimented with biodiesel, and we have found several problems. We work approximately 50 weeks a year, hauling from our underground to the surface, which exposes us to extreme temperature changes, which in our part of the State of Iowa is drastic. It gels more frequency, causes inefficient engine operation, higher maintenance costs and unproductive employee hours due to maintenance problems. We also checked into filter systems. The company that we checked in with  we worked through J.S. Red Path out of Canada to hook us up with a couple of organizations that provide these filters. In talking to these individuals, we found that they required specific engine specification, in that each filter that was to be designed was to be designed specifically for the engine-rated horsepower and total specifications in order for them to design a filter that would be capable of working with that engine. We also found that that filter was extremely expensive, and with the very different machines that we have, would require a separate filter for each engine, and no guarantee again as to the longevity of these filters and what kind of maintenance problems that we'd run into by utilizing this type of filtration system. In closing, I guess I would like to say, setting unobtainable limits and goals does nothing more than cause frustration, confrontation and conflict for both MSHA and the mining industry. This defeats both our purposes, which is to bring safe and healthy atmospheres for all miners. Thank you. MR. SEXAUER:  Jim. MR. PETRIE:  I just a few questions, Michael. Do you have a respiratory protection program to any of your miners who wear respirators routinely? And if so, do you do medical evaluation? MR. ROOT:  Not at this particular time. No. I will add to that that the individuals that were tested  I think out of the eleven or 12 miners that work underground, only two of them are non-smokers. The rest of them are all smokers. MR. PETRIE:  Does your mobile equipment used in your mine have environmental cabs on it? MR. ROOT:  Yes. The most efficient cab that we have right now is on the Caterpillar 972 end loader. It's a very ergonomic and a very positive air-pressured cab. That technology has just been developed within the last, I believe, year or year and half since the G model came up. MR. PETRIE:  If we would finalize the phased-in approach, are there particular occupations or equipment that you feel you would have more difficulty than others in complying with the lower limits? MR. ROOT:  Yes. I believe right now with the haul trucks that we use  a 9700 International haul truck is basically an overgrown road truck. It's a straight-forward dump truck that has especially heavy-duty suspensions and everything else. In our particular situation we found out that the Caterpillar haul trucks and the larger haul equipment did nothing more than cause abusive problems and maintenance problems in the roadways and work areas of the mine. So we went to the lighter vehicle. Those also have positive-pressure cabs, air conditions and filter systems that are inherent to like a road truck or everything else. So those were not consistent with problems. The problem is the operators on those pieces of equipment are all heavy smokers. With the total carbon versus the elemental carbon, you're getting a lot of influx from outside activities that probably are not really showing a true exposure limit to them. The drilling people and the face workers, where your explosives people and scalers and stuff are working, are probably going to be the larger exposure people. And to that end right now, several companies are coming out with new technology  as far as face drillers are coming out. I understand that there's some individuals that use to be with Cannon that now have started a new company called Fletcher. I believe some of the technology that these people are developing is going to in the future probably be extremely helpful to the industry as a whole for that type of equipment. There again you still have powder people and face workers that are going to be exposed, just simply because of the atmosphere that they're going to be in in the headings, where a lot of times, unless it's boosted with ventilation, your particle matter is going to settle. MR. PETRIE:  Do you have booster fans in those headings currently? MR. ROOT:  Correct. Our mine is 230 feet below ground. We went in in 1999. In 2003, I believe, we drilled a ten-foot diameter, 200-foot deep air shaft, which acts as also an escape way. That fan that sits on top of that forces air into the mine. The exhaust comes out the portal. We exhaust out the portal. It is totally reversible. We have five booster fans downstairs that we have available to us  three that are in use right now. Two more that are being built in our shop to be taken down into the underground area to increase the ventilation flow. We have laid out the mine very well, so that we don't seem to have a whole lot of dead space, with the exception of right at the working face during the working shift. There again I think that we can go ahead and increase the ventilation by introducing these additional fans to ventilate those work faces. MR. PETRIE:  Thank you. Just to add though, that if we would convert to total carbon limits to elemental carbon, the elemental carbon would not be affected by smoking in the cabs. MR. ROOT:  Exactly. Carbon is a natural forming element. By using total carbon we expose the miner to something that is basically not a true indicator of what the emissions through burnt diesel fuel are indicating. MR. PETRIE:  Thank you. Just a clarification. You mentioned some years of equipment  I think one-year and two-year. MR. ROOT:  Correct. MR. SEXAUER:  George. MR. SUSEEN:  Is that year production or new to your mine? Is that used equipment coming in, or is this new? MR. ROOT:  No, this is equipment  the Cannon drill and the Getman were two pieces of equipment that were purchased six years ago in 2000, when we actually started into production. Our mine started in about 1998-1999 with the dragging of the slope. We actually received from our contractor that took our slope down, our mine in about 2000. These machines were introduced at that time brand-new purchases, the Cannon drill and the Getman. The loader at that particular time was a loader that we had had that had worked on the surface operation. That loader has been replaced within the last year with a newer model, simply because of the size. We work 35 to 40-foot rooms with a 17 to 20-foot face. So our limestone bed right now is typically limited as far as heights and restrictions on the types and sizes of machines that we can actually use productively in the mine  i.e., instead of a 980 end loader, we went to a 972, which is a little smaller. Horsepower rating is just a little bit lower. It's more efficient. We were able to eliminate accidents and damages from a larger machine backing into rib or causing some kind of a situation that would be detrimental to employees as well as the equipment. MR. SUSEEN:  Would you be willing to supply us with your inventory of equipment and age of the engines that are currently in production underground. MR. ROOT:  I just did. Those are the pieces of equipment. We introduced the trucks over the last three years to six months. The last truck that we bought is six months old. We run C-12 to C-15 Caterpillar engines and three or four of the Internationals. I believe the fifth International has a Cummings engine that is rated exactly the same. I believe the Getman uses a Cummings engine, and I believe the Cannon uses a Cummings engine  that I'll question. But the rest of the equipment uses C-15, C-16 engines. MR. SUSEEN:  Okay. Thank you. MR. SEXAUER:  Bill. MR. POMEROY:  Just a couple questions. You mentioned that you'd talked to Red Path about diesel particulate filters, and they had indicated to you what type of information they needed about the engines and duty cycles in order to specify a filter. MR. ROOT:  I visited with Red Path on two different occasions: one for a safety chamber. At that time I asked them who they would recommend or what kind of individual companies out there that I could visit with. They recommended two or three different companies. I have their names back at the office. I didn't bring those with me. But I have the names of two or three at that time were Canadian companies, that were in the business of doing this. And I believe this was two years ago that I talked to those people. They were indicating that they needed this information and that the filters were specifically designed to the horsepower rating and the typical serial numbers and everything else of each engine. At that time these filters were running anywhere in the neighborhood from $2,500 to $5,000 per application. MR. POMEROY:  Do you recall what kind of information they needed from you, other than just horsepower? MR. ROOT:  It was pretty much the statistical rating of the machine. They also requested the serial number of the particular engine, so that they could either go to the manufacturer like Caterpillar  to their people  and find out  straight-forward facts such as the horsepower, the torque rating, the exhaust gas temperatures that came out of the stack, all of those different types if facts. It seemed that they were very, very thorough in what they were trying to design and build. It seemed like it was extremely expensive. Since then I've looked at a couple of different filters and found out that through these catalysts that start to use, they do burn the hydrocarbons and the carbons off. But the problem seems to be with the heat that they use and the increased temperatures that come about from these filters in burning off these filters. It seems to increase the amount of carbon monoxide that these engines produce. MR. POMEROY:  The information that they would require in order to specify a filter, would it be difficult for you to provide that information? Do you have that information available, should you decide to buy filters? MR. ROOT:  A few years ago in the State of Iowa they decided through the Air Quality Bureau, that each and every one of our crushing operations or plants needed to be permitted. Part of that permitting process was this same type of a thing. They wanted to know what the horsepowers ratings and what the emissions and everything else. It took me two and a half months to go through Caterpillar, Detroit and several other individual manufacturers to actually have them send me the specific standards of that engine, including exhaust gas temperatures and everything else. They do have that stuff available through their research. But they're a little slow in trying to get it back to you, because they feel that you probably really don't have a need to know. MR. POMEROY:  But you do have that information now. MR. ROOT:  Yes. Some of it. But it's hard to get your hand on sometimes. MR. POMEROY:  Have you done any exhaust gas temperature measurements yourself at the mine? MR. ROOT:  No. MR. POMEROY:  The main issues you had with the biodiesel were the cold weather temperature. MR. ROOT:  What it would do was  in the weather conditions in Iowa, one day it can be 40 degrees, and the next day it can be 25 degrees below zero. Sure, in the mine atmosphere and our diesel storage tanks are below ground. But there haul trucks, we don't have any crushing apparatus or everything else. Shoot, muck out, load it in the truck, haul it out  crushing operations on the surface of the ground. Coming up and down the slope of the mine, invariably the large temperature change that is being caused through the engine temperature from the surface back to the underground was causing gelling problems, was filling our water filters, clogged fuel lines. Just basically turned into a situation where we were spending more time pulling maintenance on the equipment than we were actually using the equipment. And we were using anywhere from 60/40, and at one time two years ago, tried 100 percent. We did have some failures as far as efficiency on the engine. We did note that that there was some deficient horsepower ratings and stuff like that, that were coming out of the engine and causing to actually burn inefficiently. Horsepower, fuel efficiency and economy went right down the drain. So we went back to a lower sulfur fuel. We find that the lower sulfur fuel has helped some. MR. POMEROY:  What percentage of the haul cycle is actually in the underground mine, as opposed as to either on the ramp or on the surface? MR. ROOT:  I would say probably it would run  20 to 30 percent of the time is spent from the unit entering the mine, loading and exiting the mine to the crushing operation. The rest of the time would be spent in travel up and back. The crusher is approximately, I would guess, a half a mile from the portal of the mine to the actual feeder of the crusher. MR. POMEROY:  Do you maintain a separate fuel storage for your surface equipment, versus the storage you have underground? MR. ROOT:  Yes. MR. POMEROY:  Would it be feasible for you to fuel the haulage trucks on the surface with number two ordinary diesel and the underground fleet with the biodiesel, since the trucks are only underground 20 to 30 percent of the time anyway? MR. ROOT:  I guess I had not considered that as a real possibility  food for thought. I can understand  I guess I just more or less never even thought of that particular idea. But there again your standard number two diesel, high-sulfur, off-road diesel fuel, which is provided for the surface operation, would probably increase the pollutants as the truck goes underground and comes out from underground. MR. POMEROY:  Do you use an off-road, number two diesel on the surface? MR. ROOT:  Yes. MR. POMEROY:  Okay. Do you know what the sulfur content is? MR. ROOT:  No. Not right off the top of my head I don't. MR. POMEROY:  Okay. That's all. MR. SEXAUER:  Jim. MR. PETRIE:  As a relatively small mine operator, what problems would you envision if you had to transfer a miner that was unable to wear a respirator, if the miner was required to wear a respirator? Are your employees generally cross-trained? For example, could the scaler operator drive your haul trucks if need be? If you could comment on that, I would appreciate it. MR. ROOT:  There is always that possibility. Yes. We try to cross-train our miners as much as possible. But in the areas that we work out of, the labor force that we have to draw on to employ miner is somewhat limited. As miners grow older and leave the mine, it becomes harder and harder every day to hire young miners and get them to work in an underground environment. It's difficult to make an individual do something that is probably a little unnatural to him, especially when it comes to the younger people. I would fear that they would probably be a little bit of a problem with a new miner being told, Look, you're going to be wear a respirator all the day that you're down here. They might balk at that. We do not right now have any medical or anything else in place to be able to transfer a miner from the underground location to the surface location or surface jobs that are at the mining location. MR. PETRIE:  Okay. Thank you. MR. SEXAUER:  George. MR. SUSEEN:  Just one follow-up. You mentioned a statement that you don't believe that some of the manufacturers of mining equipment have the technology to provide you with the equipment to meet any lower levels. Are you referring to the engines, the exhaust filtration cabs? Could you elaborate a little bit more on what you feel that is lacking from the manufacturers? MR. ROOT:  There are probably manufacturers out there that have some of the technology available. They just have not quite implemented it totally yet, because of their resources. And some manufacturers that probably have not developed the technology yet that they want to to proceed on. Being a small mining organization, it's necessary to shop around. You have to have every ability economically that you possibly can and availability for manufacturers of mining equipment, so that you can use the equipment, number one, that's best suited to your operation, and the most economical for you to either purchase, rent or utilize. By some manufacturers having technology that are requiring us to put in place and other manufacturing, you're limiting us economically to certain individual pieces of equipment and manufacturers that we would have to buy from in order to maintain compliance with the rule. Now I've checked with a few manufacturers. Specifically we inherently like to use American-made equipment. Our company seems to have had very good luck with maintenance, less breakdowns and everything else with Caterpillar equipment. Some of the Caterpillar engines and stuff like that are not quite up to speed technologically as would probably be necessary to be able to comply with this rule. Now, I'm not going to say that tomorrow or the next day that one of these manufacturers isn't going to have breakthrough and have the resources that they can apply that will drastically change exactly what's happening. I don't know. But there is no guarantee that that's going to happen. There's no guarantee that that's not going to happen. But I think there's still some manufacturing people out there that make equipment for the industry that are trying to develop the technologies necessary to make our job easier and keep us in compliance with what's going on with these particular matters. But it's just not there yet. Is it coming? Possibly. When is it coming? I can't answer that question. But the industry generally has a tendency that provides machinery not to be able to keep up with what we are doing and what we're going by rules that are mandated on top of us. It's like a catch-22 situation. Well, maybe tomorrow I can give it to you. But I can't guarantee it. So what are we to do? We get caught in the middle between the rock and the hard place, to put it straight-forward. It puts us in a very, very precarious position, especially when you're a small, family-owned business. Economics and capital outlays, especially underground mining  up-front capital outlays are extensive. I hope I answered your question, George. MR. SUSEEN:  Yes. Thank you. MR. SEXAUER:  I think that's all the questions we have, Michael. Thank you very much. MR. ROOT:  Thank you for your time and patience. MR. SEXAUER:  What we're going to do now is take a short, ten-minute break and then reconvene. Let me just mention to you that it's our intention to try to post this material, this testimony, on our MSHA webpage in approximately a week. So if you care to look at it, it should be posted around a week from today, more or less. MR. SEXAUER:  We have currently signed up two speakers. The second one will be two people together speaking. So we'll now take a break for ten minutes and reconvene. (Whereupon, a short recess was taken.) MR. SEXAUER:  Okay. We're back on the record. Our next speaker  I was negligent in doing this before, but I'm going to ask everyone to spell their names for the reporter as you come to the microphone. Our next speaker is Pete Kaser. MR. KASER:  Good morning, ladies and gentlemen. MR. SEXAUER:  Good morning. MR. KASER:  My name is Pete Kaser, K-A-S-E-R. I am the project engineer and sales manager for Bruening Rock Products at Knoxsville, Iowa. I work with Mike Root, so I'll try not to be repetitious. I'm an engineer. I've spent over 30 years in the limestone industry in Iowa. I've worked withe four different underground mines during that period of time. As Mike mentioned, we started the mine in 2000. I think the important points I want to emphasize of the fact that have professionally designed the mine. We used a national firm to come in and do the design work and do the development work of the mine. As Mike mentioned, we bought brand-new equipment, and we have fairly recent models and fairly new equipment in the mine. We have been very careful to do the surveying, to do the roof control in the mine we scale every day. We have a good variety of fuel systems, as Mike said, both with the soy biodiesel and now with the low-sulfur diesel. We in 2003 installed a ten-foot ventilation shaft, running 24 hours a day, seven days a week, mechanically adding 180,000 cfm of air all the time, continuously. The important point I'm trying to make is we have very good ventilation in this mine. It is a fairly new mine with fairly new equipment. We are pretty much state-of-the-art. As Mike mentioned, we're still struggling and very, very concerned with the proposed limitations. As Mike mentioned, when we've done the monitoring this last summer, a number of our people are coming out in the 200s, up to 289, micrograms/cubic meter, versus a 308 limit. So we have very, very little room for fluctuation there. We're concerned about the new total carbon. It scares us, since we're unsure about what the conversion factor or what other variables will influence the readings when we do testing. In addition to that, as Mike mentioned, all but two of our employees are smokers. Under the total carbon, obviously smoke can influence that as well as other interferences. So we're very concerned. We cannot require our employees to not smoke during that ten-hour or eleven-hour shift. So we're going to have some real problems with total carbon. That's just a real practical restraint and concern we have. I'm concerned about the proposed rule and whether or not it really is necessary. In our experience, the 308 so far it appears as though we can comply with this under elemental carbon requirements, as opposed to total carbons. We're concerned about any credible, scientific evidence or study that shows that we need to change to the total carbon or that we really need to reduce those limits from the 308 currently to a lower level. As I understand, there have been experiments with lab rats with diesel emissions at extremely high levels, and they found problems. But is 308 an adequate number? Could it be higher? Does it need to go down to 160? As I understand, there was very limited scientific evidence to show whether or not we really have a problem. I'm concerned about the ramifications of this. We think that by lowering the limits from 308 down to a lower level and switching over to the total carbon, that we may create some huge problems. Number one, if we cannot comply with these lower limits, our mines may be shut down. In the State of Iowa underground mines produce probably, I'm guessing, 20 to 25 percent of all the limestone in the State of Iowa. So these eleven or 12 active mines are larger handling the metropolitan areas, and there'd be huge disruption to construction for highway safety for other needs for limestone. It'd be a real difficulty trying to provide limestone through open-pit operations. I'm concerned about the technology and capital investment. As Mike said, we're a smaller, family business. When we take a look at new investments  as you're pretty well aware, capital investments are huge  if we look at a new underground mine trail, $325,000. So the capital expenditure  while we have fairly new equipment, we'd have to go something new yet. The dollars and cents involved are just huge. We're also concerned about maintenance upkeep of newer technology that is not proven and has very little history. We're concerned about the employees  again the question of, do we require employees to not smoke during a ten or eleven-hour shift. That's a real problem for all except for two of our underground miners. We're concerned about requiring them to wear respirators. As you're aware, attracting younger people to underground mining is a little bit of a difficult process, particularly in the last week with the tragedy out in West Virginia. People are not going to be particularly attracted to underground mining. A lot of people don't understand the difference between the difficulties and hazards of coal mining versus the relatively safe, underground limestone mining. We have a problem with the perception in underground mining in general. A couple of other concerns we have with citations, MSHA citations and public perception. We're very, very concerned how our insurance companies are going to respond. Are they going to consider underground limestone mining a high-risk? Are our premiums going to go up significantly? Are they going to cancel? Are they going to back out of underground mining and not write insurance for underground mines? This is a real concern, and it's more perception than fact. But when they have public access to citations  as we know, a lot of citations are relatively minor. Very few are S&S. The perception to people like this is going to be a real problem for us from an insurance standpoint. Another huge problem for us is going to be the public, and again particularly with the tragedy out in West Virginia. We've had inquiries from the press, because we are an underground mining company. We're very concerned that, when it comes to permitting, when it comes to zoning, when it comes to trying to stay in business, the community is not going to be very understanding or very logical. There's going to be a knee-jerk reaction. So we in the underground limestone mining industry, unless we have an understanding and logical and cooperative relationship with MSHA, it may be misinterpreted, whether or not there is a serious problem here. I'd like to again comment about the environmental benefits of underground limestone mining, because again if we unnecessarily penalize underground limestone mining, it's going to force us to try to comply with needs for the industry with open pits. There are a number of benefits of underground limestone mining from an environmental standpoint. It is the ultimate land use. We can continue surface operations, whether it's farming or residential or whatever, while we're doing underground limestone mining  in our case  230 feet below the surface. Secondly, it does not involve dirt stripping. A lot of the environmental people are very concerned and want to restrict the amount dirt-stripping operations. Certainly with our underground operations we can avoid that. Third, we're a better neighbor, because a lot of that drilling and shooting and noise and dust and smoke is below ground, as opposed to with our open-pit operations. Fourth, we have very, very large reserves below ground, where we're more limited with reserves and availability of land with our above-ground operations. I think the real focus of MSHA should be on our safety record. As examined the record of underground limestone mining operations, you find that they are very safe. You find that we've continued to improve our safety records, as has been the open-pit operations over a period of years. Our concern is we try to find out whether or not air quality and diesel emissions in underground mines are a serious problem, and most importantly, at what level. We've got several questions. We have a question of at what level it becomes a problem. Secondly, the conversion to the TC versus the current EC  we think we have a little bit more control on EC. But TC is really an unknown. It's a wild card that we don't have any kind of a handle on, whether or not we're going to be able to comply and at what levels. We have problems right now in trying to understand what controls and what technology can be developed. Again we're asking manufacturers, and right now there are more questions than there are answers. We think that probably ventilation is one of the most important answers to this. We're doing everything we can, as Mike commented, with fresh ventilation, with booster fans, et cetera. But we don't know again what are the limits that we can do with ventilation versus other controls. My concern is that whether or not these artificial restrictions are going to be creating a monster for our industry, which may not be necessary. Those are my comments. MR. SEXAUER:  Does anyone from the panel have a question? Hold on just a minute. You've confounded us. You're the first one where we have no questions. Thank you very much. MR. KASER:  Thank you. MR. SEXAUER:  Next we have a panel from the United Steelworkers. Dave Ortlieb. Good morning, Dave. Could you take the microphone over to you, please? Then again I would ask that you spell your names. MR. ORTLIEB:  Okay. Good morning. My name is Dave Ortlieb. It's O-R-T-L-I-E-B. I am assistant director in the United Steelworkers Health, Safety and Environment Department. The USW represents 850,000 workers in North America, including the majority of metal and nonmetal miners, both in the United States and Canada. With me today are Joseph Rael, president of our local union 12-00659, which represents miners at MolyCorp in Questa, New Mexico, along with Veto Villapando, spelled V-I-L-L-A-P-A-N-D-O. He's vice president of the local. He's also and MSHA miners rep. In our comments today in a much longer written material, that we will be submitting later in January, the USW will be leveling strong criticism against MSHA's proposal that tries to weaken the standard that protects thousands of American miners from cancer-causing diesel exhaust. As recently stated by the president of the USW, Leo W. Gerard, in September 2005, the Administration's proposal puts the lives of our members at risk. This is the second time MSHA has tried to gut the standard. Miners, in fact, all Americans, have the right to expect better from their government. This is a very sad day indeed for MSHA, for this is the first time that MSHA, as well as the entire Department of Labor or OSHA, has attempted to significantly weaken a major health standard that is already in place. Make no mistake about our position. We honor the history of the Agency and its past values, and are greatly appreciative for all the dedicated work of the MSHA staff both in Arlington and in the field. However, out mission, the USW's mission, is to prevent the senseless and horrible diseases and deaths that miners will have to suffer, and the pain and indescribable agony that families and loved ones will have to endure. If MSHA's mission is ultimately successful, many miners throughout the United States will continue to risk cancer and serious respiratory diseases. Some miners will pay the ultimate price and will become the next generation of workers to die from occupational diseases. This is unacceptable to the USW. Underground miners experience the highest level exposure to diesel particular matter of any population in the United States, much higher than the limit of 160 total carbon. They have experienced such exposure since diesel particular matter was identified as a carcinogen over 20 years ago. This time period is the average latency for development of lung cancer. Latency, as you know, is the time from the first exposure to development of a tumor. In other words, a miner who entered the industry 20 years ago has already accumulated a significant risk of disease as a direct result of delay in this rulemaking. Furthermore, it is the USW's position that the 160 milligrams/cubic meter limit, measured as total carbon, is not adequate. According to risk assessments by NIOSH and others, this limit would not reduce miner's lifetime risk associated with exposure to diesel particular matter to less than one in 1,000. The current diesel exhaust final exposure limit of 160 micrograms/cubic meter total carbon is scheduled to become effective later this spring. When the standard was made law in 2001, miner operators were given five years to comply with the limit. MSHA and NIOSH gave the mining industry an extraordinary amount of help in the form of compliance assistance and research into feasible, practical and relatively inexpensive controls. The USW agreed to a change in the standard that will give individual mine operators an unlimited number of special extensions where they can demonstrate the need. None of that was enough for some operators or their trade associations. While some operators have made a good-faith effort to lower exposures and come into compliance, history shows that all too many will wait until the day the government finally has the power to cite them and impose penalties. MSHA now proposes to delay that day for five more years. Reopening the record gives other the opportunity to argue that the standards should be weakened further. Perhaps the day of reckoning never comes at all. This is different from most other rulemakings, in that a standard is already in place, and the Agency proposes to weaken it by a lengthy delay. MSHA previously found the standard to be both necessary and feasible. The burden of proof rests squarely with MSHA and anyone else who might propose a more drastic weakening. Although we have no obligation to prove our case that the existing standard is feasible in all its aspects, we will do so through written documentation later in the process. Today we want to touch briefly on a different issue in the rulemaking: respirators and the need for medical evaluation and transfer rights. Every employer regulated by OSHA is required to provide medical evaluations for workers required to wear respirators. Every professional association involved in safety and health recommends it. The American Industrial Hygiene Association, the American Conference of Governmental and Industrial Hygienists, the American Occupational Medicine Association to name the most prominent. There's very substantial evidence in the record of the relevant OSHA hearings to support medical evaluations. And we would ask as we have before in the two previous hearings, that that evidence be incorporated into this record as well. We believe that most miners unable to wear a negative-pressure respirator will be able to wear a powered respirator. Very few miners will have to be reassigned. But unless miners are assured that they will keep their jobs, even if they cannot wear a respirator, some may refuse the evaluation or may give inaccurate answers on the medical history. No one should have to choose between their health and their job. Miners removed from high-exposure areas must therefore have transfer rights and full-earnings protection, both as a matter of health and as a matter of simple justice. Job rotation should not be utilized by mine operators as a tool for circumventing these issues. And of course as a matter of law, transfer rights and earnings protection are explicitly required by the Mine Act. We will elaborate all these points in our written submissions, and brothers Rael and Villapando will also discuss them in a moment. That includes my statement. After all of us have finished, we of course will be happy to answer any questions to the best of our ability. I would like to say that of course what we've done here today, is put together a worker panel. Our goal in doing this is to bring the miner's perspective, bring the worker's perspective into this hearing. Neither one of these gentlemen are here to pretend that they're experts on the technology issues, feasibility issues, the economic issues. Having said that, I'm going to ask that our panel members make some brief opening statements. Joseph. MR. RAEL:  My name is Joseph Rael. I'm the local president of our union USW. Right now our membership is 150 and is going to increase to 250 at the end of this month. I'm also a member of the mine rescue team for our mine, and I'm also a lead miner in our underground operations. Our mine is a shaft mine at 900 feet. It's a multilevel mine. We have a grizzly level and a haulage level. Our main problems with diesel equipment is our grizzly level, and our tram electrical units are in the haulage level. That's all I have. MR. SEXAUER:  May I say just for the record, that's grizzly level. MR. VILLAPANDO:  My name is Veto Villapando. I'm also a lead miner. We've been working in this mine on and off since '81. I'm with the mine rescue team. Some of our equipment that we run underground in the haulage level is also diesel equipment, which is the three-yard loaders. On our grizzly level, we have one-yard loaders. On this equipment we have certain standards where our ventilation should be 50 feet from the phase, which is a good thing. Some of our equipment has been worked on, where they'll change motors from the older models to the newer models, which is a good thing, because it has improved on diesel smoke. But also, like Raymond was saying that we're at 150 people and probably 250 by the end of the month. They're hiring a lot of new people. Most of them are young miners within 18 to say, 25. And a lot of these guys don't know how a respirator should fit and that different kinds of filters should be used for the job. Like sometimes we have some guys working where it's a dusty area, they might use the wrong filter, or they're running a loader, where they should be using the right filter for that certain job. Anyway, we feel that there should be rules and laws where these young people come in and they should be fit-tested. It shouldn't be up to the company. It should be an MSHA regulation that we feel should be done, because you have people working in these areas, and they're not fit-tested. They think the respirator's working right. They're telling me, We feel the air coming on our checks. Well, that tells me, you know, they weren't fit-tested. These guys have been down there for a month underground. That's like sending one of your own sons down there and thinking they're protected, and they're not. We feel like that should be a rule in that area. We brought that across to our safety men, and they said they're going to correct that, because in the past that was one of the rules. You don't go underground until you're fit-tested. But since they're doing so much hiring, either they forgot about that rule, or they're not equipped with enough people to do it. MR. REAL:  Our concern also is we feel that if someone cannot use a respirator, he should not be jeopardized with his job. We feel that he can be relocated where it's physical for him to work on the surface. We feel like he shouldn't be let go just because he can't use his respirator. MR. ORTLIEB:  We're going to cover a number of different issues. I am going  if you could be so kind  to ask some questions of these two gentlemen. To provide you just a little more background information, when I first talked to this local about the hearings and coming in and the possibility of testifying  of course, I asked the standard background questions to try to get the speed on their situation. Please be aware of the fact that this particular local union  the company for the most part has never come forward to them and attempted to initiate major dialogue on diesel particular matter issues. To a very large extent they have been kept in the dark about these issues by the employer, as compared to when we testified on Monday and we had our Stillwater local testify before you, that was on the other end of the spectrum, where the mine operator and the local union officers were totally engaged and working hand in hand to try to come up with solutions to control diesel exhaust exposure and we're fully engaged in the diesel exhaust reduction program in the plant. Here we're on the opposite end of the spectrum, that it hasn't been going on. I'll let them tell you about it. What involvement have you had with diesel exhaust issues in your mine as far as working with your employer? Veto. MR. VILLAPANDO:  Back in the '80s  let's say '81, '82, '83  we worked with equipment where the smoke is so bad where your light is following the rib. The rib would be the wall on the ground. And you're just following that little light, making sure that your equipment is not going to hit anything, to get out of the underground. And we ran equipment where the smoke is very bad, where you can't see nothing but that spot to get out of the underground. It has improved. They got rid of those loaders because of the smoke. The loaders now we have are ST 700's with three-yard, four-yard buckets. They're not as bad. I can say that. They've done some improvement on the ventilation, some bigger fans in that area. But that's what happened then. MR. ORTLIEB:  Okay. Does the mine operator has a written diesel emissions reduction program? If so, has the local been given a copy? MR. REAL:  We haven't. We haven't received a copy of such documentation. No. MR. ORTLIEB:  And to your knowledge do they have one? MR. VILLAPANDO:  Not that we know. MR. ORTLIEB:  Does the mine conduct regular engine emissions testing? MR. REAL:  Yes. Well, they have a quarterly check with MSHA, and they put you  diesel monitors for noise, DPM, and also emission test of diesel. Right. MR. VILLAPANDO:  Yes. MR. ORTLIEB:  Is MSHA conducting those tests? MR. REAL:  MSHA and also the company. The hygienist will also put a sampler on us. As far as I know, that's the only times that they put those testers on us. MR. ORTLIEB:  Do you have any end data on that? MR. VILLAPANDO:  One thing is we don't know of anything of emissions. We don't know if they have any kind of testing device to check these loaders. Usually what happens is they'll send it down under ground, and the miners will say, Hey, this loader's running  you know, it's smoking too much. Then they'll send the mechanics down and change the filters, do adjustments. And then maybe the next shift will say, It's still smoking too much, and it will go on for two or three weeks until they finally pull out the loader and take it to the surface and see what they can figure out. That only tells me that maybe they don't have a device to test these emissions. MR. ORTLIEB:  When you say, change the filters, you're talking about the air filter. MR. VILLAPANDO:  Yes. The air filters on the equipment. Sometimes the air filters, if they're clogged, they get dirty, usually that's the cause for the loader to smoke, or if there's any oil leaking into the exhaust or the fuel is too rich or not enough in that area. MR. ORTLIEB:  Okay. Now, when the company  I'm not talking about MSHA now  when the company does industrial hygiene sampling, whether it be personal sampling or area sampling, have they historically  do they currently provide the local, the membership with the results of that sampling  that air sampling? Veto? MR. VILLAPANDO:  Right now if we have any problems  we have had problems with certain loaders where it's over the standards, the hygienist will do a testing the same time as the inspector MSHA. We've only seen the MSHA post their standards that a certain loader was over the standards. But we haven't seen anything from our hygienist. Usually our hygienist only does the testing when MSHA's there. We feel that maybe that maybe they should do it on their own, too, not just only when MSHA shows up. This is a standard of safety  safety first. MR. REAL:  We feel before they send any new equipment down underground, they should be tested. There's times that they take out a piece of equipment for repairs, but they don't check it thoroughly, and they send it down not passing the emissions test. And we feel that before it's sent underground, it should pass all standards with emission testing. MR. ORTLIEB:  Okay. There's six primary means being used throughout the mining industry to lower diesel particular matter emissions and reduce worker exposures. These include clean engines, ventilation, environmental cabs, work practices, after-filters, and alternative fuels. Additionally, some mines are replacing diesel-powered equipment with electric-powered mining equipment. What is your mine doing or not doing in these areas? And I'll start off with clean engines. MR. SEXAUER:  Excuse me. May I ask  your information is very helpful to us, but could you move the microphone a little closer. We want to make sure we pick this up for the record. Particularly I think Veto has a softer voice. MR. ORTLIEB:  As far as clean engines, are they replacing an older engine with a newer engine? MR. VILLAPANDO:  Right now they've purchased an ST-700 with a newer engine, which would be  what's the name of that engine? MR. REAL:  It's a Mercedes Benz. It's a European engine. It's far more efficient as far as air quality emissions. We've used these engines  motors now for about a month and a half, and it's really made a different as far as air quality; it's a lot cleaner. It's restricted the power somewhat compared to the old standard engine, but I feel what's an extra scoop, if it makes a difference for our safety, if you have to go for an extra scoop. MR. VILLAPANDO:  That was one of the loaders that they purchased. Then one of our older loaders, they sent it to Albuquerque, and they changed the engine out and put that Mercedes engine in it. It's improved our ventilation right now. That's about all. Any different kinds of diesel, we don't know of them trying or testing to see if it'd improve our ventilation on the equipment while it's running. MR. REAL:  My main concern is, sure, the improvements that are being done now  since I've been in operations since 1981, how long was I exposed myself with this high diesel particulates? This is where it comes to health issues. Right now I'm going on 20 years' mining. Health-wise, how has my health been. I haven't took a major physical. I've been exposed to these diesel particulates going on 20 years right now. MR. VILLAPANDO:  Going on the filters, the only filters that we know of that they changes the air filters, there's nothing on any filters on covering the exhaust that we know of. Usually if the loader's smoking too much, we red-tag it, tell the foreman, and he'll get a hold of a mechanic. There have been instances where there was not a mechanic available, so it wasn't changed. Maybe the next shift will come in. Sometimes they'll take the tag off and run the equipment. Then we have to come back the next day, which will be after two other shifts ran the equipment and maybe red-tag it again, because it wasn't done. MR. ORTLIEB:  As far as ventilation, any ventilation upgrades in the last five years? MR. REAL:  No. There have been some booster fans installed, but still we have the major  what is it  horsepower fans in the number one shaft. I think it's  what is it, the horsepower? MR. VILLAPANDO:  200 horsepower. We have  well, it's up to the miner to keep that vent bag within 50 feet; we know that. Also we're going to be starting a new block. When that starts up, they told us they'll be installing a couple of 600-horsepower fans to keep the ventilation improved. MR. REAL:  Those are going to develop a ventilation drift I think in the main shaft to the reworking areas. They're going to install those 600-horsepower fans. You're going to need more ventilation to the working areas. MR. ORTLIEB:  Environmental cabs. MR. REAL:  It won't be feasible for us. Right now we're in the development mode. We're exhausting our production mode. Right now we're developing a new block, and we cannot use a cab, primarily because we're running a 12-by-12 drift, where in conventional mining, we'd just use a regular jack blade for drilling. So in other words we have to ramp  we blast. We have to ramp them up. And if we have a cab, you'd be overexposed to the back  of the back  or the roof of the mine. So an environmental cab won't be feasible for operation at all, due to the size of our drifts, mainly. MR. VILLAPANDO:  Plus we have race stations that we've got to run. They'll go up to 22 feet up. There's sometimes we got to go up and ramp to where we can make our floating level. So there's no way a loader that can get in that area with a cab. MR. ORTLIEB:  Okay. The next to the last item is alternative fuels  biodiesel, et cetera. MR. REAL:  Probably with our climate  like the gentleman from Iowa  we have a set temperature where it's  our temperate in the winter is like 20 degrees one day and can go below zero the next day, and I think we'll have problems with gelling up, freezing lines, and  MR. ORTLIEB:  Okay. Replacing diesel-powered equipment with electric-powered mining equipment. I think we had an example there, as far as the welders. MR. VILLAPANDO:  They have done some improvement on that area. We had the diesel equipment welders. They did away with those and put us some electric plugs through the main drifts so that we could run electric welders. MR. ORTLIEB:  Any unnecessary idling of diesel equipment? MR. VILLAPANDO:  No. There's no pressure from the company to keep that equipment running, so when we're done with ramping or mucking or bringing supplies, we'll shut it down, so we have no pressure in that area. MR. ORTLIEB: Okay. I think we've partially dealt with this issue as far as the mine's preventive maintenance programs. Is diesel equipment well maintained? I think you've covered that. Do you have anything else to add on that? MR. VILLAPANDO: They have hired quite a few mechanics now, so we shouldn't have further problems in that area. As long as they keep stock up on filters in that area  MR. REAL:  Just one thing for the health and well-being of our membership. I don't know if the technology has it, is there monitoring system to check the emission test or the particulate matters underground? Is there monitors now? MS. CASH:  We have sampling equipment  you know, personal exposure samplers. There are emissions monitors that you can use for measuring tailpipe emissions, such as the ECOM; there are smoke spot tests you can do. There are measurements you can make at the tailpipe temperatures. Just as you can measure the emissions on an automobile, on the surface like we have to do for the state every couple of years, so you can get that license, you can do the same sort of test for your equipment. I think Bill or George could give you specifics on those, if you want to speak with them later also. But we do have equipment that we recommend be used or that we've discussed the use of, so that the mine operator can measure what those emissions are, to help them in determining what types of controls may be needed for their equipment. MR. VILLAPANDO:  On that device, does it change  you know on the surface you're going to have good ventilation, good air. Maybe it's cold; maybe it's hot in comparison to underground where  MS. CASH:  You can use on the surface or on the underground. They're not temperature  the working of the device is not dependent on the temperature. MR. SEXAUER:  As long as we're clarifying that, let's continue there. MS. CASH:  Jim. MR. PETRIE:  Just to clarify a point or two. The existing diesel rule does require that mine operators conduct exposure monitoring on the employees for diesel particulate, and that those results be posted on the mine bulletin board, along with the MSHA sampling results. I believe there was concern mentioned a little earlier about fit-testing for respirator wearers. That is also an existing requirement in the diesel particulate rule, that if you have to wear a respirator for protection from diesel particular matter, that you be fit-tested. We currently do not have requirements for medical evaluation of respirator wearers. I was wondering, does your company do that? Do they conduct periodic medical exams? MR. VILLAPANDO:  Nothing to do with the respirator. MR. PETRIE:  Nothing to do with the respirator. MR. VILLAPANDO:  On that comment that you made about diesel equipment and wearing  fit-tested, does that also fall under for silica? MR. PETRIE:  It would also apply for respirable dust, that there is an existing requirement that, if you have to wear a respirator, that the employee be fit-tested. MR. VILLAPANDO:  We have had some people wearing a respirator and not be fit-tested within a month. MR. PETRIE:  Let me just clarify. That would only be to the extent that we have found an overexposure. I didn't mean to interrupt here. MR. VILLAPANDO:  That's a good thing, because MSHA has cited them for overexposure on silica. MR. SEXAUER:  Let's go off the record for a minute here, please. (Off the record.) MR. SEXAUER:  Okay. We'll go back on the record. I think Jim has an additional remark. MR. PETRIE:  To the extent an operator finds an overexposure as well, the company would be required to provide a respirator if they can't reduce the exposures using feasible controls. In those cases fit-testing would be required. I correct myself. It's not just based on an MSHA sample finding an overexposure. If an operator finds it, it would also be a requirement. MR. SEXAUER:   I think George would like to add a remark. MR. SUSEEN:  Yes. You had mentioned about some of the maintenance practice. In there something's defined in the regulation about promptly, when a mine operator has to fix something that's been identified through tagging. That term, just for your information  the term "promptly" means by the end of the next shift during which a qualified mechanic is scheduled to work. So they'd have up until that  if you tag something for an emissions-related component, the operator has up to the end of that shift where a mechanic is scheduled to work. If you'd like to address that further on whether that's being done, if you notice that's being done or that's an issue, then we could take your testimony. But I just wanted to clarify that for the record. MR. VILLAPANDO:  On a piece equipment, usually when it's red-tagged, the only person who's supposed to take it off would be a mechanic. But we've had some instance where the next crew coming in, being that they need the loader, will take it off themselves. So usually, like I said, a qualified mechanic is the only one that's supposed too take that tag off and put a green tag saying, that's good. But it doesn't always happen. MR. SEXAUER:  Let me also say that the purpose of this meeting is to gather information that could be useful in our decisions on development of a diesel particulate standard. If there are any enforcement-type issues or technical issues relative to your mine, this particular committee and this forum is not going to be determinative or particularly get involved in that. However, we will be happy to talk with you following the meeting and if you have issues in terms of whether MSHA needs to get involved in that. But continue with your testimony with respect to information for the diesel particulate rulemaking. MR. ORTLIEB:  Okay. Thank you. Just to clarify for the record, do you have a written respiratory protection program? MR. REAL:  We do. The reason is that there was exposure of silica dust above MSHA standards. So anybody entering the grizzly level, working with grizzly lines, exposed to silica dust, are required to use the respirators. As far as diesel emissions, it's fairly new  not fairly new, but it's not really enforced while operating diesel equipment. MR. ORTLIEB:  Medical evaluations, are there any? If so, when are they done  medical evaluations for miners required to wear respirators? MR. REAL:  I don't know. Do you have  MR. VILLAPANDO:  The only one I know about is they have a fit-for-duty before you get hired, and that's it for duty. Maybe that's what they use for requirement on using respirator and doing the job itself. That's all I know about that. MR. ORTLIEB:  Regarding miners who can't wear respirators, do they have transfer rights with full earnings protections? MR. REAL:  Not that we know of. MR. VILLAPANDO:  Well, there hasn't been a case where a miner couldn't use the respirator. We haven't experienced that to know yet. We don't know. MR. ORTLIEB:  You haven't discussed that with the company. MR. VILLAPANDO: No. MR. ORTLIEB: Okay. Are miners given periodic breaks from wearing respirators without relying on job rotation as it concerns diesel exhaust exposure? MR. REAL:  Right now we're on eight-hour shifts. But you've got to understand you've got travel time, 45 minutes to travel into the area; plus you've got to quit 45 minutes early to get out of the mine. Roughly if you are to use your respirator, it would be five to six hours of actual work, because you also have that leeway of travel time to the mine and out of the mine. That's all I have now. MR. ORTLIEB:  Okay. Do you have anything to add? MR. VILLAPANDO:  On what Joseph said there, that'd be for the guys that working on the grizzly lines for dust, for silica. Any diesel equipment ramp will require to wear a respirator while the equipment is running. That's the only time we wear it. MR. REAL:  That would be when you mark ramp or moving supplies. MR. ORTLIEB:  Are you provided with the right type of respirator cartridges to protect workers from diesel exhaust particulate? MR. REAL:  Veto has more information this, but the only filters we have was for silica dust. It's a safer-like respiratory filter. It's not a filter or cartridge for diesel fumes. I believe Veto has a couple of samples. It's in front of you there. But I strongly commend Veto. He stressed and stressed that we needed proper cartridges for diesel fumes. MR. VILLAPANDO:  They had us using the P-100s. That would be just the dust mask. Then we went to our respirator, where we had filters. Those were also P-100 filters. About two months ago they started bringing us the  for papers. They claim that was good enough for the diesel. I believe the vapors, no one had it. They just said it was good enough for diesel. So we're not too sure on all that. MR. ORTLIEB:  As far as the clogging up of respirator cartridges  MR. VILLAPANDO:  They claimed that the more you use it, the more efficient they are, because it'll clog up and the smoke will make  it'll be harder for the smoke to go through it. So sometimes they wanted to keep up on their filters, so then we'd be using them for a couple weeks or a month before we'd get stocked again. MR. ORTLIEB:  Because there's not  the supply's been depleted in the mine? MR. VILLAPANDO:  Yes. MR. ORTLIEB:  Okay. We've got a couple more issues. Has the mine conducted any training programs for miners concerning diesel exhaust? Any formal training of any type how to identify the smoking vehicle vis-a-vis repairs, et cetera? MR. VILLAPANDO:  There hasn't been any standard set, just that it gets hot and smoky, and it's real bad where you can't see what you're doing, you're supposed to shut it down. That's about it. MR. ORTLIEB:  What has been your overall experience with MSHA as far as concerning diesel particular matter? MR. VILLAPANDO:  MSHA, when they come in they'll give us monitors to check the noise level and smoke. They seem pretty good about it. They'll ask if we have any problems in certain areas on ventilation  that area. MR. ORTLIEB:  Okay. Very good. Thank you very much. That concludes our testimony. MR. SEXAUER:  Thank you. Let's see if we have any questions up here. Okay. Jim. MR. PETRIE:  I'd like to direct these to Joe and Veto. First off I want to thank you for your testimony and particularly your dedication in participating on your company's mine rescue team. I think that's a very commendable effort on your part. Do you have any insight or an estimate on about how many miners wear respirators in your mine underground? MR. REAL:  Okay. We have a sub-level mine. Everybody that works a grizzly level is required to use a respirator, due to the fact that that's where the production lines are when they're exposed to silica dust. MR. PETRIE:  Okay. And that's primarily for silica then? MR. REAL:  Yes. But right now we're also in a development mode, and development is being done in the grizzly level. We're developing a new block next door to the old production lines. So like Veto said, now they'll use respirators while operating a diesel. Before it's running  when it's not running, they don't. MR. PETRIE:  Can you relate any difficulties that your members have in wearing respirators for either the full shift or while the equipment is operating? Is that a particular hardship for your members? MR. REAL:  There's one individual that has a hard time. He says he has a hard time breathing for some reason. Other than himself  he's the only case really. But as far as really the respirator's only being used maybe five hours, six hours due to our travel time. It's limited to only five hours use. MR. PETRIE:  Does your mine allow smoking underground? MR. REAL:  Yes. We're a non-gassy mine. Smoking is allowed underground. MR. PETRIE:  How do the miners deal with smoking versus wearing a respirator? Do they take a break or  MR. REAL:  I don't know if they have modified their respirator or not  MR. PETRIE:  Let's hope not. MR. VILLAPANDO:  There is one area where they're not allowed to smoke, and that's in the lines, due to  after their lunch they usually load powder in that area, so to not get people mixed up that they can smoke whenever they want, they don't smoke in that one area. MR. PETRIE:  Okay. Thank you. That's all I had. MR. SEXAUER:  Doris. MS. CASH:  Yes. I'm wondering if you could give us an idea  you described you have as couple of different levels, and there's more diesel use on the lower level, your production level or on the grizzly level. MR. REAL:  Okay. Right now in the past six months the economy's really boosted up, so we got more money for development. So right now both levels are developing. So right now we have diesel equipment in both levels right now. For the past two or three years we're in production mode, so not too much equipment was being used, primarily because we weren't developing. But now the economy's boosted up. Now were using diesel fuel in both levels right now., MS. CASH:  Okay. And could you give me an idea of what some of the sizes of the equipment  horsepower? MR. REAL:  As far as the horsepower, it's a regular, basic front-end loader, ST-700s. It's a four-yard to three-and-a-half yard. As far as the horsepower, we need to look. I can't really tell you. MS. CASH:  Okay. Could you give maybe me an idea compared to the number of production pieces you have? The larger horsepower  how many would you say you have? Do you have a lot of utility vehicles and smaller vehicles being used in the mine? MR. REAL:  Yes, we do have these. I estimate that in our particular mine I think we have roughly about 30 pieces of diesel equipment. And it's going to increase, because production and development mode is increasing. So more equipment's going to be sent down. MR. VILLAPANDO:  We also have some contractors coming in to develop the extraction. They'll bring their equipment also. We don't know what they have, but they'll be here by the end of the month in the workings. MS. CASH:  Okay. Let me ask you, you said you had some sampling done for diesel exposure, but it's typically done by the IH, only when the MSHA's inspector's there. So there really doing like side-by-side sampling. Do you know of any other testing? Has anybody else been asked to wear a respirator or the IH? I just want to make sure that I have it clear that you're not aware of them doing any other testing of your people. Only at the positions that MSHA has tested? MR. VILLAPANDO:  That's correct. The only time that we know of is would be when MSHA is present. But it is a requirement to wear a respirator when running equipment. MS. CASH:  Okay. Now, you said that they brought you the vapor filters. Those are the  are those the half-mask filters with the two cartridges on the side? MR. REAL:  Right. MS. CASH:  Okay. And just one thing on the training: You said that there really hadn't been much discussion with the miners about diesel. Have either of you ever been talked to about any of the hazards of diesel exposure or anything you should be aware of? MR. REAL:  The first we heard about it was back in September, when we had a SPEFA [phonetic] conference with Dave, and that's the first we heard about, you know, the outcome of diesel fumes as whatever happens as far as causing cancer and health hazards. MS. CASH:  Okay. Thank you. MR. SEXAUER:  George. MR. SUSEEN:  Yes. Thank you. Gentlemen, you both mentioned  or one of you mentioned specifically that two of the loaders were  one was a new loader with a Mercedes engine. The other loader was repowered with a Mercedes. Are those the only two loaders used for production? Or are there other loaders with different engines that you know of? MR. REAL:  In the past we had ST-700s powered with whatever standards they come with  whatever they were built with. Just these two loaders right now are being used. We understand they're supposed to go up to Mercedes in the existing loaders that they have. And that will be done. But that's their plan that we understand. MR. SUSEEN:  Those are the only two loaders that are used every day? MR. REAL:  Right now within this month  within last month probably, them are the two loaders that they used on the haulage level. But on the grizzly level they have the one-yard loaders, Wagners, that they use. And also for production where they use to clean the lines, they use a three-yard loader. I don't know what brand or name of that loader is. But it doesn't have that Mercedes engine. MR. SUSEEN:  Have you gotten positive feedback when those new loaders with Mercedes were introduced? Did the miners give you positive feedback? Did it look like it was improved? MR. REAL:  Yes. Definitely. The power was restricted somewhat. But there's less smoke, I guess, you could say. MR. VILLAPANDO:  We witnessed  we run that equipment. It does  you can tell there is a difference on smoke. But there also is the other loaders that don't have it, which would be the one-yarders on the grizzly level, and the other one that they use for production. MR. SUSEEN:  Let's say that loader you were running breaks down  with the Mercedes  is there another loader that you would bring in? Would you jump over to another machine to use? Or would you have to get that one fixed first before you can continue to work? MR. REAL:  If it breaks down, where it's unrepairable, they would send it out to the surface and bring down what we'd been using before. MR. SUSEEN:  I'm sorry. Can you  MR. REAL:  They would bring down what we had been using before, which would be the other ST-700s that don't have the Mercedes. MR. SUSEEN:  Okay. Has that happened? MR. REAL:  Well, in the past we've never had these Mercedes. They just brought them into our work areas now within the last month. MR. SUSEEN:  Okay. So it's too recent of a history. MR. REAL:  Yes. MR. SUSEEN:  All right. Thank you. MR. SEXAUER:  Bill. MR. POMEROY:  Yes. Just a couple qst6s about your maintenance procedures. If you have a situation where an engine is smoking, and the operator is concerned about that, you said you put a red tag on that and it goes off-line. If they have a safety issue, let's say, bad breaks or something, does the same red tag go on it? You don't have a separate kind of tagging system. MR. REAL:  It's a red tag, but you identify the problem of the equipment. If it's smoking too much, you put, bad emissions. If it's bad breaks, you indicate bad breaks. You describe the control within the red tag. MR. VILLAPANDO:  It is the same tag. MR. SUSEEN:  Same tag though. MR. SEXAUER:  Does anyone else have a question? (No response.) MR. SEXAUER:  Gentlemen, I want to thank you for testifying. I'd like to point out to Joseph and Leto that, should you have any other issues that are beyond the scope of this rulemaking that are health and safety-type issues that you would like MSHA to address, we have some enforcement and technical folks up here on the panel, who would be happy to discuss them with you following this hearing, if you care to. So, thank you. MR. ORTLIEB:  Thank you for allowing us to testify. We are very thankful. MR. SEXAUER:  That covers all the speakers that have signed up. Is there anyone else is the audience that would care to address the panel? John. MR. GRIESEMER:  John Griesemer with Springfield Underground. I just have one answer to one of the questions, I believe, Ms. Cash raised about the type of biodiesel. It's a B-100 is what we tried. MS. CASH:  Thank you. MR. SEXAUER:  Okay. There being no other speakers, this concludes the hearing. Thank you. (Whereupon, the hearing was concluded.) ?? NEAL R. 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