U.S. DEPARTMENT OF LABOR + + + + + MINE SAFETY AND HEALTH ADMINISTRATION + + + + + DIESEL PARTICULATE MATTER EXPOSURE OF UNDERGROUND METAL AND NONMETAL MINES + + + + + PUBLIC HEARING + + + + + TUESDAY SEPTEMBER 16, 2003 + + + + + SALT LAKE CITY, UTAH + + + + + Panel Members: George Saseen Jim Petrie Becki Smith Deborah Green Doris Cash Jon Kogut I N D E X Introduction by Ms. Smith................... 3 Presentation by Mr. Petrie.................. 9 SPEAKERS David Graham................................ 15 Mike Crum................................... 36 Rick Anderson............................... 47 Fred Fox.................................... 60 Mark Good................................... 73 Wes Leavitt................................. 92 P-R-O-C-E-E-D-I-N-G-S MS. SMITH: Good morning. My name is Becki Smith. I am the Deputy Director of MSHA's Office of Standards, Regulations and Variances, and on behalf of Dave Lauriski I would like to welcome you to this public hearing today. The purpose of this hearing is to obtain input from the public on the proposed rule published in the Federal Register on August the 14th, 2003 addressing Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners. I would like to take the opportunity to introduce the members of the panel joining me today. On my immediate left, Deborah Green is with the Office of the Solicitor for Mine Safety, Doris Cash is from the Metal and Nonmetal Organization of MSHA, and Jon Kogut is with our Program Evaluation and Information Resource organization. And on my right, Jim Petrie is with Metal and Nonmetal, Northeastern District. Jim is the district manager in that district and also chairman of this committee. And George Saseen is from MSHA's Technical Support Center. There are several other staff members with us in the audience today who you may be hearing from as the proceedings go forward. 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 panel may explain and clarify provisions of the proposed rule. 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. 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 sign in at the registration table. So far I have five of you signed in to speak this morning. We will remain in session today until everyone who desires to speak has an opportunity to do so. Also, if you're not signing up to speak today, we would like for you to sign the general sign-in sheet so we will have an accurate record of those in attendance at today's hearing. We will also accept written comments and data at this hearing from any interested party, including those of you who are not speaking today. When I call on you to speak, please come to the speaker's table and begin your presentation by identifying yourself and your affiliation for the record. If you have a prepared statement or any supporting documents for the record, please leave a copy with us. You can give written comments on this hearing to us today, or you can send them to MSHA's Office of Standards electronically, by facsimile, by regular mail, or by hand delivery using the address information listed in the hearing notice. In addition to the hearing today, there will be three other hearings -- in St. Louis, Missouri on September the 18th, in Pittsburgh, Pennsylvania on September the 23rd, and in Arlington, Virginia on October the 7th. The post-hearing comment period will end on October 14, and submissions must be received on or before that date. A verbatim transcript of this hearing will be made as part of the record and it will be posted on MSHA's website. If you would like a copy sooner, you could make your own arrangements with the court reporter. The company information is available at the registration table. We'll take a lunch break around noon, and short breaks in the morning and afternoon as needed. Before we begin I would like to give you some background on the proposed rule we are addressing today. On January the 19th, 2001, MSHA published the final rule addressing the health standards to underground metal and nonmetal miners from exposure to diesel particulate matter. The rule establishes new health standards for underground metal and nonmetal miners by requiring use of approved equipment and low sulfur fuel, and be setting an interim and final concentration limit for diesel particulate matter in underground mining environment. MSHA established staggering effective dates for enforcement of the concentration limits. The interim concentration limit of 400 micrograms per cubic meter of air of total carbon was to become effective on July 20th, 2002. The final concentration limit of 160 micrograms per cubic meter of air of total carbon was scheduled to become effective January 20th, 2006. On January 29, 2001, several mining trade associations and individual mine operators challenged the final rule and the United Steelworkers of America intervened in the case, which is now pending in the District of Columbia Circuit. On July 5th, 2001, as a result of Phase 1 settlement negotiations, MSHA published two notices in the Federal Register. One notice delayed the effective date of Section 57.5066(b) related to tagging requirements 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) regarding the definition of "introduced" in the engine standard. The final rule was published on February 27th, 2002. Phase 2 of the settlement agreement was reached in June of 2002. Under the agreement the interim concentration limit became effective on July 20th, 2002, without further legal challenge. Mine operators had one year to develop and implement good-faith compliance strategies to meet the interim concentration limit. MSHA agreed to conduct compliance assistance during the one-year period. MSHA also agreed to reenter rulemaking on several other disputed provisions of the 2001 rule. The legal challenge to the rule has been stayed pending completion of the additional rulemakings. On September the 25th, 2002, MSHA published an Advance Notice of Proposed Rulemaking. MSHA noted in that Advance Notice that the scope of the rulemaking is limited to the terms of the settlement agreement and addresses MSHA's intent to repropose the interim and final concentration limits. On July 20th, 2003, MSHA began enforcing the interim final limit of 400 micrograms. The agency's enforcement policy is also based on the terms of the settlement agreement and was discussed with the litigants and stakeholders on July 17th, 2003. The enforcement policy is written into a Compliance Guide, and both the Compliance Guide and a Program Policy Letter are posted on MSHA's website on the Sole Source page for diesel particulate matter. On August the 14th, 2003, MSHA published it's proposed rule which would accomplishing four things: (1) revise the interim concentration limit measured by total carbon to a comparable permissible exposure limit measured by elemental carbon, which renders a more accurate diesel particulate matter exposure measurement; (2) increase flexibility of compliance by requiring MSHA's longstanding hierarchy of controls at metal and nonmetal mines, but prohibit rotation of miners for compliance; (3) allow MSHA to consider economic as well as technological feasibility in determining if operators qualify for an extension of time in which to meet the diesel particulate matter limits; and, (4), lastly, simplify requirements for a diesel particulate matter control plan. At this time Jim Petrie, who is, as I said, chairman of the Diesel Particulate Committee, will do on overview of the proposed rule, and after Jim's presentation I will begin calling speakers. MR. PETRIE: Thanks, Becki. Can Everybody in the back see that all right? Okay. This is just a brief summary of the rule. It compares the proposed rule and the existing rule. There's only about ten slides, so it's very short. If you have any questions of clarifications that you would like me to address as I go through these slides, just raise your hand and speak up, and we'll try to address them. These are the sections of the exiting rule that we're going to be addressing in this presentation: 50.66(a) on the interim limit, 50.60(c), special extensions, which are the extension of time requirements; 50.60(d), which are exceptions to the diesel particulate limits which allow the use of respirators or require the use of respirators for inspection, maintenance, and repair activities; and then 50.60(e), which is a prohibition on respiratory protection; 50.60(f), which prohibits administrative controls; and 50.62, control plan. These are the requirements in the existing rule that we'll be comparing with the proposed rule. As far as the interim limit, the existing rule is based on a 400 microgram per cubic meter total carbon surrogate. It's a concentration limit. You measure the environmental concentrations. The proposed rule is based on a 308 microgram per cubic meter personal exposure limit, and it's based on elemental carbon as the surrogate. We came up with the 308 by dividing 400 by 1.3. The 1.3 was established as part of the settlement agreement. Now, in addition to this -- it's not on the slide -- we would be using an error factor of 1.12 for the interim limit. The final limit is not addressed in the proposal. The agency feels it needs more time before it can propose a revision to the final limit, and we're going to undertake a separate rulemaking to address that. We're not sure at this time when that will occur. 50.60(c) is special extensions. Those are the extension of time requirements that are in the existing rule. In the existing rule it applies only to the final limit. It only considers technological constraints as far as being able to use this extension of time, and each mine is limited to one extension of not more than two years. We are proposing to apply the extension of time requirements to both the interim and the final limit. We would consider both economic and technological constraints, and there would be no limit on the number of extensions but you would have to renew it each year. I wanted to talk a little bit about hierarchy of controls. In the existing rule you must use engineering or work practice controls to comply with the limits. Rotation of miners is not allowed. You must obtain approval to use respiratory protection for inspection, maintenance and repair activities, and if you use respirators they must meet the requirements in MSHA's existing metal and nonmetal air quality standards, which are 57.5005(a) and (b). That standard incorporates by reference ANSI Z88.21969. Under the proposed rule operators would be required to utilize feasible administration in engineering controls with the exception that rotation of miners would not be permitted, and if controls are infeasible you would be required to use respiratory protection. You would have to exhaust, though, the feasible administrative and engineering controls before you would be allowed to use respiratory protection. The respiratory protection requirements would be the same as in the existing rule. It would be based on those requirements that are in the air quality standards, and it would be tied to ANSI Z88.21969, with the exceptions that it specifies the types of filters to be used. Regarding rotation of miners, the existing rule prohibits the use of administrative controls, but it uniquely defines administrative controls as rotation of miners. Any other types of administrative controls would be allowed. The existing rule identifies those as work practice controls, and examples of that would be limiting the length of the work shift. Those would be allowed under the existing rule, but you would not be allowed to use rotation of miners. The proposed rule is very similar. It would also prohibit rotation of the miners and other administrative controls would be allowed, so it's really a difference in semantics between the two. Regarding respiratory protection, the proposal does not include provisions on medical evaluation of respirator wearers or transfer of miners who cannot wear respirators. We do, however, solicit comments on these issues in the proposal. We did not include those requirements because it was not addressed in the settlement agreement. Regarding the DPM control plan, under the existing rule it would be triggered by a single violation. It would require verification monitoring to determine whether the concentrations are still under the various limits. It would be in effect for three years from the date of the violation. In the proposal it would be triggered if a mine was not in compliance within 90 days of the citations, so you would have 90 days to get into compliance, and if you did within that time frame you would not need to submit a control plan. There is no specific verification monitoring requirements, and it would remain in effect for one year after the citation was terminated. Lastly, the proposed rule contains several other conforming changes. Those mainly would correct various wordings. Like if a section of the rule talked about concentration limit, it would change that to read that it's a personal exposure limit. If it talked about TC as the surrogate, it would change it to EC as the surrogate. We didn't go into detail in describing what those conforming changes are in this presentation. And then lastly, the Compliance Guide and the Program Policy Letter are posted on the Single Source page on MSHA's website. Any questions on that? Okay. MS. SMITH: While Jim is turning that off, our first speaker, Mr. Graham, if you would like to come up to the speaker's table, please. If you would give and spell your name for the court reporter and your affiliation, please. MR. GRAHAM: David Graham of General Chemical and the MARG Group. I have Mr. Henry Chajet here with me as one interpreter if you have any problems with my accent. MS. SMITH: You're doing fine. Thank you. MR. GRAHAM: Thank you. The MARG Diesel Coalition appreciates this opportunity to testify and MSHA's recent cooperative efforts to resolve our differences over the first and only workplace diesel exhaust particulate matter exposure limit in the United States. We will be filing written comments before the close of the rulemaking record that will include an updated review of MSHA's health risk assessment and an updated technology and economic feasibility analysis. In the interim, we note that our conclusions have not changed. The rule is not justified by a valid risk assessment, is not feasible, and does not meet MSHA's statutory mandates or OMB's data quality requirements. To partially settle our differences, DOL, MARG and the NMA agreed to an interim, partial settlement of our court challenge in the January 2001 rule. That agreement creates a settlement standard, and this rulemaking is intended to implement that agreement. To the extent that it follows the provisions of the settlement agreement, we endorse the rulemaking proposals. We are disappointed, however, that MSHA has not yet deleted the 160-microgram limit scheduled to take effect in 2006. We strongly encourage MSHA to delete the 160 limit immediately in this rulemaking, and many of our comments are directed at the need for MSHA to act now. The interim partial settlement with MSHA recognizes the industry's position that the DPM limits are not scientifically justified or technically or economically feasible, but permits implementation of the 400-microgram total carbon limit, converted to elemental carbon as a practical compromise of the legal dispute, in exchange for reexamination of the 160 limit and critical changes to the flawed 400 rule. While we appreciate MSHA's settlement efforts in its attempt to fix the flawed rule, we insist upon the deletion of the 160 limit now in this rulemaking. Since the rule was rushed to publication on the last day of the last presidential administration, scientific evidence and extensive field testing has proven what we knew at the time, that the rule was an unfortunate "shoot first, aim later" approach to regulations. This rulemaking is the tip of the iceberg of the massive efforts and resources dedicated in the last three years to reexamine the rule and try to fix its critical faults; yet these efforts should have been taken well before the rule was ever promulgated and must be accelerated now as we approach enforcement of the settlement agreement terms and the prospect of an unachievable, unjustified 2006 standard. We encourage MSHA and DOL to end this struggle with the errors of the past, which is causing all of us to miss opportunities to focus our resources for the needs of today and the future. Dr. Jonathan Borak, Yale University Medical School, a world renowned expert in toxicology and risk assessment, agrees with the conclusions of the EPA that the science does not support the establishment of exposure limits. His prior written comments, which demonstrated the lack of scientific basis for MSHA's published risk analysis, are being updated to address the new materials in MSHA's preamble. We will file the update in the record before the end of the comment period. No other federal agency has proposed much less adopted, an occupational DPM exposure limit for diesel particulate matter -- diesel engines in construction, tunneling, rail, truck, marine or bus depots, repair facilities, agriculture or aviation. The silence demonstrates MSHA's unique and isolated error in its approach in diesel regulation. OSHA and other agencies regulate diesel exhaust components (for example, carbon monoxide, nitrous oxide and hydrogen dioxide). Even though OSHA regulates far more workplace diesel engines and potentially exposed personnel than MSHA, including tunneling with potentially high exposures, MSHA stands alone in its experimental regulation of diesel particulate matter through one of its many components, carbon. The MSHA decision to measure and limit diesel exhaust through one of its thousands of components, total carbon particulate, was based on the use of an experimental sampling device and a new analysis method. All of the MSHA feasibility opinions and analysis used to support the rule were based on the total carbon regulatory scheme that had never been (1) used by MSHA or any other regulatory agency; (2) tested by sampling, analysis and measurement in industrial settings; (3) directly associated with any specific disease risks; or, (4), correlated to the other thousands of components of diesel exhaust to determine if carbon measurements accurately and consistently represent diesel exhaust levels. The device that MSHA helped develop for measuring diesel carbon particulate for this rule, the submicron impactor, was shown to be flawed before the rule was finalized and again during field tests following the litigation interim settlement agreement. We are concerned, however, that the latest attempted design fix developed after the rule was adopted will continue to produce flawed results. At this time we do not believe that the 5040 method is being followed precisely by MSHA's lab, which we think has made corrections to try to fix its premature adoption. While we appreciate MSHA's efforts and its acknowledged preamble experiments to achieve acceptable results, we are concerned that the ongoing and repeated "fix on the run" will continue to produce results which are not meaningful and instead will produce erroneous enforcement and further wasted resources. We ask that MSHA prepare and publish for review a detailed comparison of its current actual sampling and analysis procedures compared to the published NIOSH 5040 method. We look forward to submitting a further analysis of the accuracy and precision of the 5040 method and MSHA's method to the rulemaking record. Unlike every other MSHA health standard, MSHA prohibited employees with personal protective equipment in its January 19th, 2001 DPM rule. We are thankful that MSHA now recognizes this error, and we endorse the proposal to permit personal protective equipment. The need to correct this error should serve to remind the agency and any reviewing authorities or courts of the fatal flaws incorporated in the rushed and premature rule. Moreover, we strongly encourage MSHA to delete the rules prohibition of the rotation of personnel as a protective option. It makes no sense for a safety and health agency to prohibit effective options for employee protection. MSHA's 160-microgram total carbon DPM limit is based on a now revoked ACGIH TLV drafted by an MSHA staff member who served on the ACGIH TLV committee while he was drafting the MSHA rule. Following disclosures in the trona ACGIH litigation, DOL signed a settlement agreement requiring it to investigate conflicts identified in the litigation. DOL has issued a new policy which now prohibits the overlapping activities that resulted in the MSHA and ACGIH standards, but MSHA has not yet withdrawn the 160 DPM standard. While the staff member has now retired from MSHA and no longer serves on the ACGIH TLV committee, the damage must be corrected and the tainted standard withdrawn. As demonstrated by the comments in the rulemaking record of internationally recognized mining engineering expert H. John Head, MSHA has not demonstrated that the 400 or 160 limits are feasible. Mr. Head is updating his comments, and they will be placed in the record before the close of the comment period. In the interim, we note that the industry has begun to test MSHA's anticipated primary DPM control, retrofitted exhaust filters, with only limited success in meeting the 400 microgram limit and no success in meeting the 160 microgram limit. MSHA's preamble notes that 30 percent of the mines tested in the agency's baseline sampling program were not in compliance with the 400 microgram standard. While the preamble describes many of the MSHA recommendations to those mines, for most it presents no evidence of the recommendations resulting in compliance. We suggest that MSHA avoid additional litigation by establishing a program to issue extensions to mines that justify requests before counterproductive enforcement visits result in adversarial situations. Elemental carbon. We endorse MSHA's proposal to conform to the interim, partial settlement agreement and measure the 400 DPM limit by measuring its elemental carbon equivalent rather than total carbon. Our independent research led to our prior recommendation of a 320 microgram elemental carbon equivalent to the 400 total carbon limit. MSHA rejected that conversion number, and we continue to be concerned that the MSHA conversion will permit unfounded enforcement actions. We are reviewing MSHA and industry data for the submission of additional comments. We generally oppose enforcement of occupational health standards based on a single sample because standards are based on long-term exposure and laboratory results of single samples are not an accurate representation of a single shift exposure. We continue to be concerned that MSHA's newly developed and then revised DPM sampling and analysis "single shift" sample analysis system is not feasible and does not provide accurate, precise, and reliable results. We repeat our request that MSHA retain unused DPM filter sections for analysis by mine operators, and we do not understand the agency's response that its lab process will not permit the retention of this critical evidence. First, we do not understand MSHA's comments that its use of two punches from one filter does not permit the remainder of the filter to be retained for operator analysis. Second, we are not convinced that the corrections MSHA has added are sufficient to produce a feasible system. We ask that MSHA publish its two punch comparative data (with separate, individual entries for each corresponding punch and blank filter results and corrections) for analysis and comment. At Federal Register Page 48701, MSHA asks if any aspect of Section 75.1914(g), diagnostic engine emission tests, should be adopted as part of the final rule. MARG responds that no other provisions are permitted or needed by the settlement agreement. The coal rule was based on engine and filter performance instead of exposure limits, and its provisions are not needed for this performance-based rule. At Federal Register Page 48710, MSHA asks for comments on its belief that a 25 percent or greater reduction in DPM exposure from an engineering or administrative controls is significant and thereby effective for its decision-making on technological and economic feasibility. We object. First, MSHA states that the 25 percent reduction can be achieved by the control itself or in combination with other controls, thereby eliminating the critical role of the individual component under consideration and rendering its guideline meaningless. We suggest that controls must be evaluated independently, but in reference to site-specific conditions and DPM levels, if meaningful decisions are to be made regarding their significance or effectiveness. We emphasize that the significance of a reduction achieved by a control must be viewed in light of the compliance result, not the percentage reduction. A mine with DPM exposures of over 1,000 micrograms can apply 25 percent effective control, reducing exposures to 750, but has not achieved a significant or effective result and will require continuing personal protective equipment use, rendering the control not significant. At Federal Register Page 48712, MSHA seeks comments on whether the DPM rule should include new respiratory protection mandates or plan provisions. DPM rules should not be extended to address remotely related topics covered by stand-alone regulations. We believe that the current respiratory rule, 57.5005, are adequate and should be uniformly applied as they are now to all respiratory applications. As a result, MARG opposes any additional respirator-related provisions being added to the DPM rule. In response to MSHA's request for informational costs of these possible additions to the rule, we suggest that MSHA analyze the results of the OSHA lead and cadmium rules and their impact on the regulated industries. At Federal Register Page 48716, MSHA seeks comments on its proposal to obtain a control plan provision. We oppose the plan proposal even though it is an improvement over the January 2001 provision. The DPM rule interim settlement permits implementation of a performance-based DPM limit. A control plan merely adds needless paperwork, without benefits, and causes additional cost and potential for meaningless citations and fines. At Federal Register Page 48670 to 71, MSHA sets forth a misleading and incorrect overview of the 31-Mine Study. As parties to the settlement agreement, we disavow the implication that we agreed to the described study conclusions or results, or that our disagreements were limited to the few recited by the MSHA preamble. In fact, we are disturbed that our request for acknowledgement and publication of our disagreement with MSHA's interpretation was ignored. For the record, we again will provide our comments on MSHA's reports, but we emphasize the following: The report is based on the MSHA estimator, and it is meaningless for a determination of feasibility, as we repeatedly stated in previous discussions and submissions. The estimator assumes perfect ventilation and air mixing and applications that are feasible for all equipment and controls. The estimator does not exist in the real world. MSHA acknowledges it has inadequate information on controls, but does not acknowledge the vast errors resulting from the estimator's invalid ventilation assumptions. We object to MSHA's continued reliance on the estimator, regardless of its inappropriateness, for its economic and technical feasibility analysis. MSHA states, "The analytical method gives an accurate measurement of the total carbon." That conclusion is rejected by the scientific community, and MSHA itself, which admits interference and establishes an attempted method of converting total carbon measurements to elemental carbon. While MARG prefers elemental carbon to total carbon to reduce interference, we object to the preamble's conclusion. Moreover, we note MSHA's acknowledgement that in the controlled study about 25 percent of the samples were voided (Federal Register Page 48683). In our written comments we will address our continuing concerns regarding the feasibility of the analytical method as applied to elemental carbon. MSHA states that the 31-Mine Study supports a finding that the standard is economically feasible. However, MSHA's use of gross revenue as a measure of economic feasibility is invalid. This method ignores the international commodity markets that determine the viability of mines by setting market prices for their production. For the last ten years in the mining industry volume and gross sales indicated massive losses more frequently than profitability. MSHA's analysis is flawed since it fails to examine the impact of the additional cost of its regulations on industry margins and viability. Copper, lead, zinc, silver and molybdenum industries are examples of industries driven to financial disaster in the United States by foreign competition and regulatory costs, regardless of gross production or gross sales statistics. Mining engineer John Head's analysis contained in the record demonstrates that MSHA's cost estimates are wrong. MSHA has not corrected those flaws, and its lack of a valid economic analysis mandates the deletion of the 160 standard. Federal Register Page 48672 states that MSHA used the same sampling strategies for collecting baseline samples as it intends to use for collecting samples for enforcement purposes. However, the same page states that the results of two analyses were averaged and that dynamic blanks were also tested and/or an unexposed filter was used to correct for background levels. The preamble further states that "in the event results are greater than 100 elemental carbon, a smaller punch of the same filter was taken and used. Blank correction average results were used." At some point we would like a description in detail that these new sampling and analysis procedures and confirm that MSHA will use the same precautions for enforcement sampling. We again ask that MSHA provide a table with the data from its two-punch results from the same filter, in addition to the blank sample correction result and the corrected average result, to permit an analysis of the variance and feasibility of this new system. Hardly visible in the many preamble charts and graphs in a single sentence on Federal Register Page 48676 indicating that almost 30 percent of all mines had one or more compliance assistance sampling results above 400 total carbon, adjusted to the elemental carbon equivalent. During the compliance assistance visits many mine operators reported that MSHA was not sampling in the highest DPM concentration locations. Moreover, if we are correct in our understanding that this 30 percent noncompliance rate was based on a highly variable sampling and analysis system, the one where MSHA used the average of two punches and other corrections, we suspect that a far larger number of samples will be above the 400 limit as enforcement sampling begins, and that almost none of the mines can achieve compliance with the 160 limit. We appreciate MSHA's cooperative efforts in reducing DPM exposures and encourage further similar efforts. However, we believe that the Federal Register preamble confuses these helpful efforts with MSHA's duty to demonstrate the feasibility of its regulation. Of course, a realistic feasibility determination should have preceded the promulgation of the original regulation, and the agency's helpful, cooperative efforts are not a substitute for meeting its statutory mandate in that proceeding or in this one. In fact, the very need for these visits and lab tests and their outcome prove that feasibility has not been demonstrated by MSHA. (1) The vast majority of mine visits reported in the preamble (4 Martin Marietta sites, the Rogers Group Jefferson, Nalley and Gigson's Georgetown Mine, Stone Creek Brick, Wisconsin Industrial Sand, and Governor Talc) do not report positive results nor support the proposition that compliance is feasible. The silence speaks loudly to the noncompliance status of these mines. The Carmeuse Federal Register discussion represents an excellent attempt to test bio-diesel fuel. It fails to report, however, that the 50 percent bio-diesel presented insurmountable equipment problems and that the cost of bio-diesel has increased significantly, adversely impacting the feasibility potential of the 20 percent mixture. Additional information will be provide by Carmeuse on this subject. The discovery of filters which create N02 hazards to personnel is alarming and demonstrates the risks of rushing to regulate and mandating the use of unproven technology. Stillwater will address their comprehensive efforts which prove that even the 400 is not feasible at their mine. At Federal Register Pages 48693-4, MSHA sets forth its interpretation of "feasibility" under the Mine Act and the case law. First, MSHA only seems to pay lip service to the express language of the statute and loses its feasibility focus by reference to the legislative history and aspects of the case law. The express words of the Mine Act are clear in establishing the factors to be used in determining feasibility: Research, demonstrations and experiments; latest available scientific data; experience gained under this or other health and safety laws. Of course, the opinion of the Supreme Court in the cotton dust case is the most important of the cases cited by MSHA, and it defines feasible as, quote, "capable of being done, executed, or effected." By focussing on everything except the Supreme Court's decision and ignoring the express words of its own statute, MSHA reaches an erroneous feasibility decision. MSHA again ignores that no other health and safety law or agency adopts or has proposed to adopt a DPM standard. Instead, OSHA and other agencies rely on the regulation of diesel exhaust gas similar to those already in effect in the MSHA standard. Moreover, MSHA has not analyzed its own experience in regulating diesel gases to determine if they provide the protection it seeks. These factors alone demonstrate that MSHA has violated its statute in favor of a prejudged result of a conflict of interest that led to the original rule on the last day of the last administration. We commend MSHA, however, for its acknowledgements that prior conclusions regarding feasibility were incorrect. MSHA agrees that it may not be feasible to change engines on some diesel-powered equipment (Federal Register at 48696). This acknowledgement, however, is not factored into MSHA's determination of feasibility and is instead ignored in favor of statements encouraging fleet replacement without regard to the feasibility of said suggestions. Similarly, we commend MSHA for acknowledging that ventilation system upgrades may not be the most cost effective DPM control for many mines, and for others ventilation upgrades may be entirely impractical. We also commend MSHA for inspecting each mine subject to the rule over the last year and collecting baseline information. However, rather than quantify or identify which of the 175 mines are subject to the rule are part of the many for which ventilation is not cost effective or those for which it is entirely impractical, MSHA instead concludes without data or support that for the majority of mines ventilation improvements would be an attractive DPM control option (Federal Register at 48700). Moreover, MSHA continues to rely on the estimator to conclude feasibility regardless of its now acknowledged incorrect assumptions on equipment appropriateness and performance for which it lacks actual knowledge or data. Most importantly, at Federal Register Page 48705, MSHA admits that the 160 limit is not feasible. Quote, "It would be infeasible for the metal and nonmetal mining industry to reach a lower interim limit." This acknowledgement and the evidence in the record provide MSHA with a mandate to delete the 160 microgram limit now under the provisions of the Mine Act sanctioning only feasible standards. MSHA cannot mandate a standard to take effect in less than three years based on pure speculation that feasible controls will appear miraculously. The MARG Diesel Coalition appreciates the opportunity to comment on MSHA's proposed DPM rule and hopes that MSHA will act in accordance with its recommendations. Thank you. MS. SMITH: Thank you, Mr. Graham. Do any of the panel members have any questions they would like to place to Mr. Graham? Audience? Thank you, Mr. Graham. We appreciate your comments. Our next speaker is Mike Crum. MR. ANDERSON: I'm just moral support for Mike. My name Rick Anderson. MS. SMITH: If you could say and spell your name for the record and your affiliation, please. MR. CRUM: My name is Mike Crum, C-R-U-M. I'm with Stillwater Mining Company. Stillwater Mining Company appreciates MSHA's solicitation of comments on the anticipated rulemaking. It welcomes the opportunity to share thoughts and comments as the agency formulates its proposed rule for notice and comment. Stillwater is a member of MNA and the MARG Diesel Coalition and the NIOSH diesel partnership. We endorse comments of NMA and MARG. As MSHA is aware, Stillwater mining company has been a leader in the cooperative good-faith effort between labor, industry and the agency. Stillwater also welcomes further opportunities to join in such a partnership to advance or clarify the impending rule. Comments on the 160 microgram limit. MSHA's has set a proposed final limit of 160 micrograms for DPM, which at present time is not feasible. Technology has not advanced to provide feasible filtration for all mining equipment. Equipment size constraints, operational variations, and filtration technologies hinder fitting all mining equipment with a DPF. In Stillwater's case, active filtration devices for our smaller mining equipment are not feasible given the cost of excavation for parking areas or oven locations, as well as installing electrical and air installations close to our mining areas, which in some cases is in excess of 5,000 feet for major installations. Another fundamental concern is the creation of NO2 with even a lightly catalyzed filter. As the mine has developed further, we add footage that must be ventilated, and in so doing ventilation rates decrease with each foot of advancement. Now, given this scenario, two trucks and one LHD have proven to overpower the ventilation and an increase in NO2 occurs, consequently stopping any material haulage, which in our case occurred during the NIOSH case study just last week. This exact scenario occurred during the Phase II case study, and given that information SMC still has not achieved compliance with 400 microgram per cubic meter concentration limit, even with the major points of control as listed in the Compliance Guide as well as in multi-million dollar ventilation upgrade, which occurred two years ago and did take into consideration additional ventilation for DPM control. Comment on utilizing portions or all of CFR 75.1914(g). The metal/nonmetal mining community already has a CO rule in effect as part of 30 CFR 57.5001. It is not necessary to intertwine part 75 requirements with part 57 compliance. Weekly emissions testing is impractical as well as unfeasible for an operation that has over 300 pieces of mining equipment in operation. SMC would hardly gain compliance with this requirement. Comment on active regeneration systems. Active regeneration systems absolutely increased system operating cost. It is unfeasible for SMC to move strictly to the active system because regeneration stations would have to be added to our 48 miles of footwall laterals and ramp systems. This system utilization would require significant excavations in order to park equipment for air and electrical connections in the mine, burdening the operation with enormous cost and yielding minimal return on investment. We would need at least 25 large parking areas, which is cost prohibitive. In an other scenario, should we require our operators to exchange filters, our cost would be substantially lower. However, cost per installation would be, given today's prices, $8,300 per filter, and a spare filter for every other machine at a cost of $6,000 per filter. At the present time our heavy emitters total 176 units. Total cost of this system would be approximately $2,114,000, including $1,000 per installation. Our experience indicates the lifespan of the filter is roughly 1.5 years, which indicates our cost at a three-year time period would equal $3.9 million. The variable that is unknown to us at the present time is the effect that continual regeneration has on the filter life, which could shorten the filter life and increase spending on replacement filters. Should the regeneration process diminish the lifespan of the filter, the annual operating cost would significantly increase. And then another variable is the unknown products that are emitted during filter regeneration. This scenario would also require additional manpower to simply manage this process. Compliance with both the 400 and 160 standards is not feasible for Stillwater. Stillwater has been at the forefront of testing primary control devices recommended by MSHA and has invested greater resources than any other mining company in experimenting with controls; yet we are convinced that we cannot feasibly comply with the 400 standard at this time and that we will never be capable of complying with the 160 standard. Our efforts have demonstrated that compliance with the 400 standard will require a massive ongoing research project, since a number of our experiments have resulted in increased N02 hazards and other attempts have failed on installation. For other equipment, its size and shape does not permit installation of DPF systems. The most promising DPFs for our equipment seems to be for the heavy-duty cycle equipment, and yet we cannot install the active regeneration systems that some of these require. As a result we concur with the MARG recommendations that MSHA issue justified extensions of time for compliance with the 400 standard before enforcement actions are taken and delete the 2006 160 microgram standard in this rulemaking. Comment on the appropriateness of the 1.3 conversion factor. We endorse the MARG position. Comment on sampling equipment. One of the major drawbacks with the SKC impactors is timeliness of procurement. Although operators are entitled the right to perform side-by-side sampling, we may not have the opportunity with the lead time required obtaining sampling media. We do not know when MSHA will sample for DPM, and unlike sample media utilized for other contaminants, the DPM impactors do indicate a shelf life. We also endorse the MARG comments that the system is too new with too many recent adjustments to form the basis of a reliable and accurate enforcement system. Comments on extension provisions. Stillwater Mining Company believes that the extension period will be absolutely necessary. Should an operator require the additional time to comply with the interim limit, a development request for extension, that would be a living document that should be utilized for any extension application of the limit. Given the document that SMC has developed, this is in fact a living document that would be updated for any technological changes, operational changes, or research projects completed or pending. The requirement of the compliance plan is not needed and would only serve as a basis for additional unneeded violations. Operators should be allowed the application for the extension prior to enforcement activity. Operators should not have to be subjected to enforcement actions in their efforts to proactively work on compliance in what has been a positive partnership effort to date. Technology does not exist to meet the 160 microgram limit and it is not on the horizon. The use of the passive filters with any platinum washcoat produces significant NO2 concentrations, causing a secondary health issue by attempting to control a contaminant that has not yet been proven to cause significant health risk to miners. This proven result demonstrates the risk in rushing compliance efforts without adequate testing and significantly reduces the options for operators. Comments on the 25 percent reduction factor. MSHA should not rely on a percentage to determine control effectiveness. Instead, MSHA should examine the individual control in light of the mine conditions and the result achieved by the control. Comments on including a new respiratory protection standard. Operators are already governed by a respiratory protection standard in 57.5005. This requirement is already unilaterally applied and effective. A new standard would only compound the paperwork and intensity of a compliance plan. Therefore, SMC opposes any additional respirator requirements within the DPM rulemaking process. Comments on medical examinations and transfer of employees. With SMC's current respiratory protection program an avenue already exists to provide medical clearance if necessary for a miner to safely wear respiratory protection. This closely relates to the OSHA respiratory protection program requirements as outlined in ANSI Z88.2 with the health questionnaire. In an underground operation, transfer of employees to areas where no diesel exhaust can be identified would be extremely difficult at the very least. We oppose attempts to regulate these efforts since they are neither the subject of this rulemaking and would only serve to form the basis of enforcement actions for technical violations. Comments on information collection. The information requirements that are already in place are adequate for MSHA's function and even excessive. The DPM sampling and analysis, the planned provisions, the posting requirements, and all of the required records constitute more information collection than MSHA already requires for existing standards governing other diesel exhaust components. These records also provide no practical use since there is no scientific evidence correlating health risks to MSHA's proposed 160 microgram concentration limit. The burden could be effectively minimized by relying on the current diesel exhaust gaseous emissions testing, utilizing the 400 microgram limit that is in place as the final limit, and deleting the 160 microgram limit. MSHA's 31-Mine Study. The discussion of MSHA's 31-Mine Study is misleading as presented in the Federal Register. The report was based on MSHA's estimator, which has been proven to be meaningless for a determination of feasibility. The estimator assumes perfect ventilation rates and turbulent mixing of air. This is not always the case in true production situations. During the case study, Phase II of the isolated zone research, equipment operating in excess of 80,000 cfm fresh air could not sustain operation utilizing passive filters due to increased NO2 production with new filters. The filters (de-greened) have been proven to be successful at filtering DPM in the Phase I study; however, new filters will have to be changed eventually. This change-out in filters will produce NO2 concentrations that exceed both the TLV and ceiling limits during loading operations, substantially hindering mine operations. This effect is not considered in the feasibility of filters. MSHA has also regarded the analytical method to be accurate for the measurement of TC, total carbon. This conclusion has been rejected by the scientific community and has been reconsidered by MSHA, utilizing a surrogate measurement of EC in place of TC. The preamble, however, is still characterizing TC as a suitable surrogate for the measurement of DPM. MSHA's compliance assistance information. In the Federal Register MSHA states that the same method for collection analysis of samples was used during the study on compliance assistance work that will be used during enforcement. During the 31-Mine Study MSHA averaged two punches and also analyzed the dynamic blanks. The samples were then corrected for the dynamic blank. MSHA has not indicated whether or not this identical process will be utilized for enforcement sampling. If the same process is not to be utilized during enforcement, MSHA should provide single punch data analysis without averaging or blank correction to the mining community for evaluation. If the single punch is to be used without blank correction or averaging, this data should be used to determine economic feasibility and compliance determinations within the preamble documentation. Thirty percent noncompliance rate. MSHA indicates that 30 percent of the mines had TC results above 400 micrograms, adjusted to EC. There is obviously a far greater number out of compliance with the proposed 400 microgram limit, and we suspect that almost all mines are out of compliance with the 160 microgram standard. Clarification of analysis is necessary in the preamble for the determination of technological and economic feasibility to be meaningful. MR. ANDERSON: If I may, I would like to make a couple comments. This represents more or less our abstract for the compliance action plan which is requested. What it suggests is that we are able to hit the compliance numbers of 400 and 160. In a year and a half of study that I have done this almost has to have a different name to it, because I cannot project in the future how we can reach this standard. During our isolated zone study of May 14th to the 30th, I guess it was, a two-week study, the isolated zone study suggested that we might be able to make it, but it was strictly a laboratory study. When we took this as a case study into an operating environment what we found was there was almost an impossibility to reach these numbers. We are using equipment that is almost experimental. We are using the best that is available. I spent over $100,000 on test equipment, and it is continually back at the manufacturer for repairs because we cannot get repeatable readings. We have no way of getting DPM readings real-time, so using a surrogate we have to guess that we are going to meet the MSHA numbers. As was suggested by my colleague, to reach the DPM limits with our passive system we are driving the emissions of NO2 above the limit where we can leave the miners in there. That is to suggest we have to use a non-platinum based soot trap, which can be proven through our studies to be uneconomic, and, frankly, I don't think it's even remotely practical to do that. Further, on the equipment that we use, the 5040 method will take much too long to understand and nothing is repeatable. I can show readings taken even a half-hour apart, and one will show a very low reading of gaseous emissions and the other ones will be so far out of compliance that we cannot put the equipment back into service. There has to be more study done on the equipment we are able to use to be able to assure ourselves that we're going to reach your MSHA standard. I have tested possibly -- well, I've got 22,000 hours of study on 20 pieces of equipment using the Inglehardt and DCL soot traps. These are mounted on the Deutz six-cylinder, four-cylinder, and CAT 3306. Where we originally thought after a year of study that the high-duty cycle equipment would be safe with these emission soot traps, we now have determined that we can't even be assured of that. I have some soot traps that have been in service for 5,500 hours and are working very well. They are regenerating as far as we can tell. I've just in the last month noticed that soot traps with only 170 hours on them are failing. We have no study that suggests that these traps after they've been de-greened when they go into regeneration do not emit DPM or emissions. I've tried to find real-time DPM methodology. There's a company in California, RTM, that was supposed to be at our study, but unfortunately their equipment was offshore so we weren't able to get it. As I say, again, there is no way that we can tell we are within your standard at this time as real-time, and to use a surrogate I think is wrong, because as we have seen it isn't -- you can't equate one gas to a DPM or one gas to another gas. And I can talk for days on this because I've got lots of stuff, but I won't. Thank you very much. MS. SMITH: Mr. Crum, thank you. Are there any questions? MR. SASEEN: Yeah, I have some questions. Mike, on the Phase II case study, can you identify which filter gave you the NO2 problem for this study? MR. CRUM: I can't right now. The two filters we had in place, one was an Inglehardt and one was a DCL. MR. SASEEN: And they were both platinum catalyzed? MR. CRUM: Right, and they were the... MR. ANDERSON: A Mine-X, and the Inglehardt was a 328PTX. Pardon me. MR. CRUM: DPX9308. MR. ANDERSON: Yeah, DPX9308. MR. SASEEN: And that was the Inglehardt. MR. ANDERSON: And two of these devices were installed for the case study, so they had very little de-greening, which would -- that is the best case scenario for us because that is going to be happening at all times. We will be in some process of changing over. MR. SASEEN: So it was an Inglehardt and DCL that was used in the case study where you got the high N02 reading. MR. ANDERSON: Right. We were actually driven out after two hours on one day. MR. CRUM: We had a myriad of issues. We didn't see a day of testing during the case study that we didn't see N02 below 3 parts per million. The case that I mentioned here, we had one OHDN, one truck, in the main ventilation stream at 80 thousand plus CFM, and we were approximately 40 feet downstream in the ventilation with the TMX reading 3.8 parts per million. We hit two different occasions during the case study where we had to end the test and remove the miners from the mine because we had exceeded the 5 part per million in ceiling limit. It's going to be a very big struggle for us utilizing the filtration technology that's currently available because, as Rick said, we will continually be replacing filters. When you put a new filter in at a mine, where do you put it? If we see N02 emissions elevated at 80,000 CFM, I can't necessarily rely on that filter in a stope ahead of me. I'll have to chase our miners out. MR. SASEEN: Also, Rick, you made mention of a filter failing at 170 hours, that you're beginning to see that. Is that something that you're going to elaborate on? I mean what caused the failure at 170 hours? MR. ANDERSON: When it looks like it has gone into over-regeneration -- it's gone wild CAT on us -- over temperature in the core -- it is breaking down the core of the machine -- when that happens then the soot is going to get by the core of the filter. This is not an isolated case. We have seen now in the last month three of the filters that are starting to fail prematurely, and because this equipment is so far afield it is impossible for us to get to it in other than our 250-hour maintenance cycle. We haven't noticed up until a month ago that this was happening to us, and I don't have an answer for why it is. We have had some failures that are caused by a turbo that has let oil into the system and physical failures from vibration, but this is the first time we've noticed that we haven't been able to quantify the reason. MR. SASEEN: Is it the same filter manufacturer that shows those three premature failures? MR. ANDERSON: No. Both Inglehardt and DCL have seen failures. MR. POMROY: Bill Pomroy from MSHA. On those filters that fail prematurely, were you monitoring back-pressure on those? MR. ANDERSON: We monitored back-pressure. MR. POMROY: Did you see an unacceptable rise in back-pressure that would have indicated that the filter just wasn't regenerating? MR. ANDERSON: The back-pressure was cycled. When the back-pressure comes up then it goes into regeneration, so I can't say there was any difference. In 175 hours you wouldn't see a regeneration cycle anyway. What is very difficult is that any of the technologies that are out there are physically too large for the equipment they run. One of the best units that we saw in the isolated zone was called a Clean Air, but it takes a fuel additive, and it too is so large that it will only fit on the equipment. We don't really have a problem because the cycle is appropriate for the soot trap, and I can say it is appropriate for the soot trap on a high-duty cycle machine, but that's not necessarily correct, because we are seeing failures in our large fleet as well that we haven't been able to determine the cause of this yet. But you have to understand, too, as far as the ambient checks that are being made is it depends on the direction the operator is traveling. If he's traveling the same speed as your air, he could be sitting in the plume of his own DPM, his own smoke. So the administrative control is extremely onerous, trying to determine if this operator is going to be traveling in his own mess. MS. SMITH: Other questions from MSHA? MR. SASEEN: Yeah. Rick, you mentioned about some instrumentation not agreeing with each other. Could you elaborate on what you were trying to measure, what the instrumentation was? MR. ANDERSON: The equipment is called ECOM 400. The problems that we have are the cells that measure the gases, and this is strictly gas, not a PPM, because we don't have real-time for that. They don't give us repetitive readings. I have six units at Stillwater. We endeavor to use the same unit for each equipment to try to mitigate the difference. We calibrate on a regular basis but, as I said earlier, even a half-hour later you'll get a different reading. We don't take spot readings. We graph our analysis of the engine through a three-mode test, and that's an idle, high idle, and a torque stall. The manufacturer, he would like to see all tests done at a torque stall with a hydraulic stall as well. What we have found is our equipment at the mine is more often at a high idle. He would be traveling down a hill with the throttle down so there's no torque on the engine, so that makes a big difference in the emissions that is put out by that machine. We have a bit of an issue with the manufacturer and MSHA for that reason. Following this I have two days at the Deutz dyno. We are going to put our equipment on the dyno with two of the engines from our mine and make governor changes to determine what is best for our mine as far as governor setups, because we find that the vent rates or the governor setup for our equipment is wrong for our mine. MR. SASEEN: Thanks. MR. PETRIE: Mike, I believe you had mentioned that your company currently voluntarily evaluates miners to determine if they can wear respirators. What do you do if you determine that they cannot wear a respirator? MR. CRUM: Currently we are following the OSHA standard with the health questionnaire. We also employ the use of a pulmonary function test prior to fit testing a miner. We do that voluntarily because it is not required by any of the regulations. Obviously I'm not an MD. I set our limits quite a bit lower than even the requirements of the NIOSH respiratory oversight. I set my flags a little bit higher than what would be required so that I don't make that judgment call. If I see a pulmonary function test that is questionable based on my limits, I immediately send that to the medical oversight physician. I do not fit test the employee and I do not work in a respirator required area. MR. PETRIE: Okay. Thank you. MR. CRUM: You bet. MR. ANDERSON: I guess further to my last comment there, I was talking about this as being in my compliance action plan for Stillwater. I probably take exception to the term "compliance action plan" because that suggests that I agree that we can meet compliance, and it should be renamed to suggest that we are on the cutting edge of technology and it's a live document that we'll continue. MR. CRUM: I would also like to add one more item in regards to the active regeneration systems. If we get into a situation where we require extensive excavation in order to park equipment, the other foreseeable challenge that we would face would be ground control in those excavations. The larger openings that we create within our rock formations, our ore body, the heavier chance we receive for ground control issues to arise, whether that is enforcement activity or loss of equipment. MS. SMITH: Jon. MR. KOGUT: Mr. Anderson, I think you asked about whether the method used for noncompliance determinations averaging the two punches and correcting for blank -- whether that would be the same method that was used for the 31 Mine Study, it would be continued for the noncompliance samples. Did you ask that? MR. CRUM: That was a question I had -- and Mike Crum, just for clarification. That was a question I had in reading a preamble, that that was going to be consistent through -- MR. KOGUT: Okay. Well, maybe I can defer this to the head of our dust lab, but my understanding is that that same method will continue for noncompliance sampling, and that's the assumption that's made in the method that's used for the error factor that's outlined on the website. So, Bob, maybe you could answer that and confirm my understanding that that same method will continue. MR. HANEY: Not exactly what was used in the 31-Mine Study, but what was used in baseline sampling will be used, because the 31-Mine Study did not use the dynamic blanks on the compliance samples. It was the baseline sampling. MR. KOGUT: Right. But for samples that are used in making a noncompliance determination would be the average of two punches and then corrected by a blank, by the dynamic blank. MR. HANEY: Yes. MR. SASEEN: I have just one. You mentioned, Mike, about going back to active regeneration ground control and parking relating to plug-in systems for regeneration. What's your opinion, or Stillwater's opinion, on changing out filters and doing it back at a maintenance shop as a feasible control? MR. CRUM: I'll let Rick answer that. MR. ANDERSON: We actually addressed that when we sent however many filters we had to have plus the spares. The fact remains that these filters are buried within the body of the machine, so it's impossible for maintenance to be able to change these out. It would have to be done -- it's impossible for the operators to change these out. It would have to be done by maintenance in 40 miles of footwall lateral and ramp system. It would be an impossibility to get to this equipment in a timely manner, so I think that would be quite onerous. MR. SASEEN: Okay. Thank you. MS. SMITH: Okay. Thank you very much. MR. CRUM: Thank you. MS. SMITH: Our next speaker is Fred Fox. MR. FOX: Good morning. My name is Fred Fox, F-O-X. I'm the Director of Health Safety Environment for Kennecott Minerals, which is located here in Salt Lake City, and I welcome the panel members back to Salt Lake City. Kennecott Minerals is the majority owner and operator of the Greens Creek Mine up near Juno, Alaska, and with me this morning is Mark Good, who is a safety engineer at the Greens Creek Mine. I thought what I would do this morning is go over this outline and briefly discuss an overview of Kennecott Minerals' involvement in the DPM rulemaking -- I actually agree on some of the MSHA proposals in the proposed rule -- and also highlight some concerns that are still remaining, discuss the need for further time to determine economic and technical feasibility, the need for formalized procedures to grant a special extension for additional time. We really appreciate the cooperative and collaborative effort of MSHA and NIOSH. And on compliance assistance, I would like to discuss why that should continue, and also the need to delete the 160 final limit because more data, we feel, is needed before proposing it. Mark will address more of the mine-specific areas, history of his trials of the different filters, results from the MSHA testing that was done up at Greens Creek, site-specific effects of mine and ventilation design -- I don't know if Mark has got the diagram here so we can discuss some more site specific issues -- and Greens Creek's existing control plan, which is the voluntary control plan that addresses DPM, and I would like to say the way forward to compliance. Now, early on, DPM sampling at Greens Creek indicated compliance with the 400 micrograms and the 160 total carbon limits might not be feasible. On January 29th then Greens Creek along with Anglo Gold challenged the rule because of this concern, and it was followed by legal challenges from NMA and other companies. For the record, Kennecott Minerals Company is a member of the National Mining Association. We mentioned the partial settlement that was reached on July 5th, 2001 that allowed certain provisions of the new rule to go into effect and required a sampling study, which has been known as the 31-Mine Study, to begin August 2001 to determine the appropriateness of the compliance limits. Greens Creek Mine continues to install and test the feasibility of on-board self-regenerating diesel particulate filters, along with active regenerating filters, and continues to implement a diesel exhaust control plan. The joint MSHA/industry sampling program and study, the 31-Mine Study, was completed at the end of March 2002. The study showed that the Greens Creek Mine was at the high end of noncompliance with interim standard compared to the other 30 participating mines. For a one-year period after July 20th, 2002 and until July 20th, 2003, MSHA stated it would not issue citations if operators were cooperating in good faith to reduce DPM emissions. Since July 20th, 2003, MSHA has not conducted an inspection at the Greens Creek Mine. Greens Creek and MSHA also participated in an additional mine-specific study to assess the performance of catalyzed ceramic filters being applied at Greens Creek for reducing DPM and to determine practical mine-worthy diesel particulate filter technology. The study protocol was developed with input from MSHA and NIOSH and originally scheduled for early November 2002 but later rescheduled for January 20th, 2003 due to sampling equipment and weather-related problems. The results of the DPM study at Greens Creek indicated the use of ceramic filters reduced personal DPM exposure by 60 to 80 percent and CO levels up to 50 percent. Use of the filters reduced the average DPM emissions by 96 percent. However, because of the cascading ventilation system, which Mark will go through later on, at Greens Creek and with ambient DPM concentrations being measured around 300 micrograms per cubic meter elemental carbon in the intake air to some of the stopes, being able to achieve the personal DPM concentration below the proposed 308 micrograms per cubic meter elemental carbon for every underground miner on every shift may not be feasible and is still uncertain. Greens Creek has ordered additional ceramic filters to retrofit all large horse-powered diesel engines and, as stated earlier, is currently researching active regenerating filters for medium and small horse-powered engines. The new proposed rule is expected to be published sometime in the third quarter of 2003 after it has cleared Department of Labor Policy Review Board and Office of Management and Budget Reviews. Kennecott Minerals Company strongly encourages MSHA to expedite this rulemaking process, as it now leaves Greens Creek and all other metal and nonmetal mines out on a limb without a safety net. It is very likely Greens Creek will not be in compliance during certain mining cycles, and therefore it's imperative that Greens Creek demonstrate to MSHA it is doing everything technically and economically feasible to comply with the standard, allowing MSHA the opportunity to grant an extension of time for compliance and not issue citations. Kennecott Minerals Company agrees with some issues on the sampling and measurement technology. We agree that MSHA has established available technology that can accurately and reliably measure miners' exposure to DPM in all types of underground metal and nonmetal mines. We didn't have much variation at all with our sampling and MSHA's sampling using the 5040 method measuring for elemental carbon. MSHA's position on technological feasibility, as stated in the preamble on Page 48671, MSHA has limited in-mine documentation on diesel particulate matter control technology because sampling results were obtained at a time when few mine operators had implemented controls to reduce DPM concentrations. As a result, MSHA's position on feasibilities does not reflect consideration of current complications with respect to implementation of controls, such as retrofitting and regeneration of filters. Kennecott Minerals Company agrees with MSHA's acknowledgement that these issues, meaning retrofitting and regenerating of the filters, may influence the extent to which controls are feasible. Additional time is needed to determine feasibility. Kennecott Minerals Company agrees that enclosing a miner in a well-maintained cab is an effective engineering control, and Greens Creek will implement these types of controls wherever practical. However, Greens Creek has limited opportunities to enhance its ventilation, and even if it did, required ventilation to reduce DPM concentrations without the use of filters would not be feasible. We've commented on this numerous times in earlier rulemaking. Greens Creek agrees with MSHA that administrative controls can be effective in reducing miners' exposure to DPM, such as reducing diesel engine idling time, reducing lugging of the engines, designating certain areas off limits for operating certain diesel equipment, and establishing one-way travel whenever these controls are practical. Kennecott Minerals Company acknowledges, as does MSHA, that some mine operators, such as Greens Creek, may face feasibility challenges implementing current DPM control methods. That is why Greens Creek solicited MSHA's compliance assistance in early 2002 to conduct a study for the identification of site-specific practical mine-worthy filter technology. While the study indicated significant reductions both in personal exposures and engine emissions, there is no evidence that the mine can continuously or consistently comply with the interim limit for every underground miner on every shift. Practical mine-worthy filter technology has not been completely defined at Greens Creek, and additional time is required to do so. I'd like to talk about a formal procedure needed for granting these special extensions. We feel special extensions are necessary. MSHA proposes to adapt a special extension provision of existing Section 57.5060(c) and remove the limit on a number of extensions that may be granted to each mine, which was described earlier in the slide show. Kennecott agrees with this provision, including allowing approval of the extension by the district manager rather than the secretary. However, Kennecott also believes there should be a formal process in place to appeal a district decision on an extension request to the secretary if necessary. Kennecott does not believe that granting a special extension would duplicate the regulatory objectives addressed under the new 57.5060(d) and the intended hierarchy of controls for DPM rule. By granting a special extension under the proposed rule that is limited to one year, subject to yearly renewals as described earlier, MSHA would be allowing each operator to define site-specific controls, including engineering, administrative and respiratory controls allowed for by the proposed rule. Such controls would be evaluated yearly to warrant an additional extension of time. Kennecott believes the proposed special extension provision and the ability granted to use administrative controls and respirators is a good start and will most likely be required to enable compliance at Greens Creek with the interim limit. However, Kennecott Minerals Company also believes there should be provisions to require that MSHA act on a special request and do so within specified time frames. Some concerns remain on other issues. One would be MSHA's discretion to issue citations. If MSHA finds that a miner is overexposed to the DPM standard, and an inspector determines that some form of engineering and administrative controls are feasible, and the operator didn't install or maintain such controls, MSHA can issue a citation to the mine operator. This is a concern to Kennecott Minerals Company because of the current guidance that was cited in the preamble to the Federal Mine Safety and Health Review Commission that engineering controls may be feasible even though they fail to reduce exposures to PELs as long as there's a significant reduction in exposure, and it's cited as capable of reducing miners' exposure by only 25 percent. Notwithstanding, an operator could be subject to citations after implementing engineering and controls deemed feasible by an MSHA inspector. The very reason for MSHA to grant special extension allowing the operator to avoid citations may be moot, leaving the operator totally at MSHA's mercy unless the provisions are changed to be transparent and MSHA is required to act on a special extension request agreeing on what controls are or are not feasible and do so within a specified time frame. Kennecott believes it's very important for MSHA to place in the new rule a definition of "practical mine-worthy filter technology." We believe it could mean those diesel particulate filters that have been proven in the mine environment to achieve the PELs for DPM. No such definition currently exists. And technological feasibility, Kennecott disagrees with MSHA's conclusion that a personal exposure level of 308 micrograms per cubic meter of carbon is technologically feasible for the metal and nonmetal mining industry, including the Greens Creek Mine, and that control mechanism exist that are capable of reducing DPM exposure to this level in all types of underground mines and nonmetal mines. MSHA acknowledges that it is continuing to consult with NIOSH, industry and labor on availability of practical mine-worthy filter technology. Complications with obtaining adequate ventilation, especially at the face of a stope located in a dead-end drift, like many situations at Greens Creek, would most likely prohibit meeting the PEL of 308 micrograms per cubic meter of elemental carbon. Many elemental carbon samples taken at Greens Creek were very close to the 308 micrograms per cubic meter standard -- for example, one was 281 and another 292 -- demonstrating that being able to achieve personal DPM concentrations below the 308 micrograms per cubic meter for every underground miner on every shift in all types of underground mines may not be feasible. On compliance assistance, we feel compliance assistance should continue. Kennecott Minerals Company must for the record state that it retrofitted its first diesel engine with a catalyzed ceramic filter on the newest truck available on March 3rd, 2000, and installed additional filters on different large horsepower diesel engines during the year 2000, well before the 31 Mine Study took place. In addition, Greens Creek believes it was the first underground metal mine to solicit compliance assistance from MSHA and NIOSH. That's contrary to what was perceived in the preamble. On commercially available DPM filters, MSHA states in the preamble on Page 48698 that it has found that suitable diesel particulate filters for engines for horsepowers used in underground metal and nonmetal mining equipment are commercially available. Kennecott disagrees that there exists suitable diesel particulate filters, especially for the two-cycle engines of midrange horsepower used at Greens Creek, unless you can tell us differently. Also, the results of tests at Greens Creek show that filter rotation was an issue with a particular type of filter mentioned earlier, the Inglehardt, due to a manufacturing problem. This issue was discussed with a filter manufacturer and vendor without obtaining closure on the issue, thus questioning the mine-worthiness of this particular filter. Finally, we do believe that the final limit should be deleted, and at this juncture we question the ability for all types of underground metal and nonmetal mines to meet the revised interim exposure limit of 308, let alone looking at a final limit of 160 micrograms per cubic meter. Therefore, we would like MSHA to delete the final limit, and if MSHA doesn't delete the final limit we agree that there should be some additional time allowing all types of underground metal and nonmetal mines to demonstrate feasibility for compliance with the interim limit well before addressing the final limit. We openly request MSHA's compliance assistance in meeting a final DPM limit, as it did in its continuing efforts to meet the interim limit. And with that I'd like to turn it over to Mark. MR. GOOD: My name is Mark Good. I'm a safety engineer and Greens Creek Mine. Just to sort of set the stage for our efforts, I'm going to be speaking more to the technical feasibility side of things, what we've experienced at the mine, the work that we've done in conjunction with MSHA, some of the technical issues associated with the mine ventilation aspects of our mine, and a number of other topics here. Just to get going on it, we started out testing ceramic filters three and a half years ago in March of 2000. That was the first ceramic filter that we put in place. At that time there weren't a lot of ceramic filters out there. We chose Inglehardt as being the sort of leader of the day as it were. They recommended a 20-inch-by-15-inch unit to go onto our large haul trucks. We mounted that on a Toro 40D haul truck, and within 500 hours it failed. The back-pressure shot up over 70 inches of water gauge, and the spec on the engine was at 41 inches. So in May of that year we pulled the 20-inch unit off and we exchanged it for a couple of smaller 15-by-15's. We ran temperature profiles on the equipment in July of that year and established that the duty cycle was going to be sufficient for self-regeneration. The replacement ceramic filters arrived in September of that year -- lead times on these things were pretty excessive at the time -- and the truck ran for about 200 hours before it clogged up with back-pressures going up over 80 inches, and again we pulled the 15-by-15 out of service and approached the manufacturer for suggestions and recommendations. In December we made another swing at it, so a new 15-by-15 was mounted on the truck again, making the proper physical mounting modifications. We wrapped the exhaust system with a heat-retaining insulation blank and trials began anew. So that was in December of 2000. By April of the following year, April of 2001, we successfully operated the filter -- it was a passive regeneration system -- for 1,100 hours, and based on that success we figured we hit the magic combination, and we ordered an additional five ceramic filters to outfit the remainder of the large haul truck fleet. We ran until September of 2001, when we finally got receipt of those other filters and we started retrofitting them into the equipment. So at that stage we had established successes with the large haul truck fleet. Our next approach was to go and start retrofitting some of the smaller truck fleets, the MT420's, which is a Wagner truck. We put an 11-by-14 ceramic filter on in November of 2001 and continued testing that particular unit, so we had a couple of filters in trial here. In August of 2002 we had the opportunity to purchase a brand new truck, and rather than going through the R&D aspect of it we talked to Wagner and told them that we wanted Detroit Engines on board and that we needed to have Inglehardt soot filters mounted as an OEM package, because this is manufactured from filters and truck manufacturers and engines all working in concert together to provide us with a package that would work. Well, we test drove it down in Portland and it failed, so they asked us to ship one of our spare filters down to them. They put it on and shipped it up to us, and during commissioning up at the mine site there it failed the second time. The filter was not suitable for the application, and this is directly from the manufacturer, so this is the question of original engine equipment manufacturers being able to provide turnkey package. It just doesn't happen. You have to be application specific in your specifications. In September of that year the very first filter failed that we had put in, and that was after twenty months or so of operation. It had achieved around 5,600 hours, and it had cracked and broken up internally, so we put another filter on it and continued on our way. Establishing successes, both good and bad I guess, in terms of the haul truck fleet, we started looking at the loaders, and in October of 2002 we put our first filter on a mucker machine, slightly smaller in horsepower, 300 horsepower, and again based on Inglehardt's suggestions of specifications they recommended a 12-by-15 filter. We put it on, and back-pressure right out of the box was 50 inches again versus a 40-inch top end, and so that one was unsuitable. We put a larger filter on on our own accord and brought the back-pressures back down into something that was reasonable. So again this is evidence of the equipment manufacturers and filter manufacturers being unable to provide information to operators in terms of the suitability of these things. Moving on, by Christmastime, December of '02, we failed our second soot trap. The ceramic had rotated inside the shell and was loose. There's a canning process involved in this where you have a ceramic substrate that does the filtration, and then there's a metal can that goes around it, and the ceramic had worked free internally and vibrated around and basically cracked up the ceramic internally. And this is just prior to when the MSHA people, well, George Saseen and Bill Pomroy, arrived on site there to do our Compliance Assistance Program, to test the suitability of these various filters, and during that program we also noticed that there were several filters that had rotated internally, inside the cans, and allowed exhaust gases to bypass the whole filter element, sort of rendering them less effective. So January '03 we kicked off a five-day sampling program with MSHA. We did a three-day -- actually six days. We did three days with the filters and installed sort of a quadra-isozone effort, and then we pulled the filters off and tried to repeat the sampling in headings with the filters removed, and then did a comparative before and after thing there. And also during that period of time the MSHA team conducted the baseline survey that we're required to have by Western District. We also did that during the same program. Following that, May of this year we got into repowering equipment. There was a Caterpillar grader that we had which we ended up repowering with a Mercedes engine because the Caterpillar engines we felt just weren't able to meet the emissions. And in that same month, May of this year, we decided to embark on a program of different suppliers because we weren't that thrilled with what Inglehardt was producing for us in terms of a filter that was durable. These things were backing up after 2,500 hours on average at this point, and we just didn't deem that that was adequate. So we started out on a program where we're testing Air PCL filters now, a different manufacturer, and we're just in the process. These filters now got somewhat 500 hours on them. They seem to be performing okay at this point, but so did the Inglehardt at 500 hours too, so it's a little too early to tell at this stage. So that was our testing program in terms of our experiences with filters, both successes and failures on them. I've had some correspondence with the DEEP organization -- that's the Canadian equivalent that's working on diesel particulate studies in Canada -- and the correspondence I had with them indicated that Inglehardt was no longer going to be in the retrofit business anymore, or at least the canning stage of that retrofit business, and it looks like they're going to be focussing their attempts on OEM installations with the engine manufacturers, so they've kind of removed themselves from the picture in any case. But we've still invested over three and a half years of Inglehardt studies and probably close to $80,000 worth of filtration studies on something that ended up to be a dead-end with that. I'm going to speak a little bit about the Greens Creek DPM sampling efforts. We've had four outside parties work with Greens Creek in terms of measuring diesel particulate. It started out in the summer of 2000. This is a few months after we put our very first filter in place. NIOSH was interested in doing an in-mine study to get baseline readings for what miners or industry was being exposed to, and so that program was headed up by Bruce Cantrell. In NIOSH's five-day program they took over 200 samples and analyzed those. At that time we were looking for carbon interferences with graphitic ore, because at that time the diesel particulate regulations that were on the horizon were going to be based on total carbon, and we were concerned that total carbon was going to become an issue for us because of the nature of carbon in our ore. Following that program, July of 2000, the next outside sampling agency was during the 31-Mine Study that happened in November of 2001. Larry Macken from, I think, the northeast area conducted a two-day study with us taking, I think, at least a dozen samples. During that sampling program, the second day of the samples, our mine ventilation system was interrupted by a fan failure, and so the second day of sampling tended to bias the numbers way high. But nonetheless during the first day of sampling, which was a cross-section of all of our occupations there, we had levels of elemental carbonate 432 micrograms, 1,141, 538 and 328. All of these are above the 308 couched in today's terms. Subsequent to that the compliance assistance team, that I alluded to, back in January of this year came on, and they did a baseline survey effectively sampling similar occupations that Mr. Macken had the prior time, and in those samples we were under the 308. We were encroaching on it. We were close. MR. FOX: Those are the two concentrations, the 292 and the other one. MR. GOOD: As Fred was saying, we had one and 292 and one at 281 and one at 289, so bumping up against the level there, but we had a bit of a dichotomy there between the two sample sets and two occupations, one being above 308 and one being just under 308, so we were left at a little bit of a loss where we actually stand. And then the fourth program, as I was saying, was the actual filter efficiency testing which was conducted over a six-day period. That summarizes the sampling efforts that we've undertaken. This is outside sources. These aren't the ones we've conducted internally aside, so our samples were actually fairly close to the ones that Bill and you guys from MSHA had come up with, so consistency on the methodology, I guess, on sampling, I don't really have too many bones with, although there is separation in swing in the actual results. I want to speak a little bit now about the site-specific effects of the mine and the ventilation design at Greens Creek in meeting those diesel particulate limits. I guess our mine is probably not terribly dissimilar to a lot of the precious metal mines, but it is fairly different from some of the more bulk mining styles. In the 31-Mine Study there was a series of trona mines, there was limestone, there was some of these bulk mining areas, as well as the gold mines, and when we looked at the study it was the precious metal mines that seemed to be at the high end of things, and that's by nature of our mining method, I guess. The Greens Creek Mine operates within the Admiralty Island National Monument, and as such there's fairly severe restrictions imposed on disturbances to the surface lands there. You just can't go and push roads out everywhere. Opportunities for establishing alternative ventilation accesses into the mine are very restrictive not only in establishing ventilation breakthrough locations but also providing access to those openings for maintenance purposes. The permitting process for land disturbances are pretty lengthy. The mine has got two portal accesses driven into the mountainside at 920 and 1,350 feet elevations. The mine development is progressively foundational ore at locations deeper and more distal to the portal, so we're getting deeper and further into the mine. As mining develops it has followed the ore body deeper, and the overlying mountains also -- MR. FOX: Show them that thing. MR. GOOD: Maybe we can just refer to this. You'll be able to see. You can see a lot of lines anyway. Over here the portal access is coming in, and up above is the 1,350, and you can sort of see there's a general trend down and away, so as we're chasing the ore bodies further over here the mountain contour is coming up higher as well, so we don't have that opportunity to start pulling 4,000-foot holes up to surface, and not only is it for breakthrough locations, it's pretty rugged terrain up there on the mountaintop. We don't have the opportunity to locate those things in places we can get to, plus getting the permitting to start carving up the national monument is a tough go. MR. FOX: You might say impossible. MR. GOOD: Existing developments reached a depth of roughly 200 feet below sea level at the current phase, and the mountains are roughly 3,000 feet above the workings at that point. The terrain, as I mentioned, is very rugged, and this can be expected from a mountain setting, and additional breakthroughs to the surface have been prohibitively costly in terms of time of permitting and expense. As such, the mine ventilation plan has evolved into a series or a cascading ventilation system where you bring the miner in and as it courses down the ramp you're ventilating out stopes. It goes in and ventilates the stope, comes back, returns to the airway, and then on to the next one, and ultimately it all comes down to a lower section where it gets collect and brought up. So just by nature of the way the mine has evolved this cascading ventilation system is basically one of the parameters. We haven't been able to bracket the ore body and establish a collection raise up at the far end and basically go with a single ventilation scheme, so it's a series or a cascading ventilation system that we've had to adapt. As such, the mine ventilation plan has evolved into this system, and that's consistent with the original general plan of operation that was accrued by the forest reserves back when the mine was first constructed, so we're living within the bounds that was agreed to with the forestry services in order to put the mine into place. The cascading nature of the mine ventilation system has got some important consequences regarding maintaining the DPM concentrations within proposed limits, and in the cascading system the ambient levels of contaminant slowly increase. As each time the air ventilates a heading, additional contaminants are introduced into that same airstream as it then cascades down from the following level. There comes a point when the ambient contaminant levels approach close enough to the compliance limit that it makes no difference that no volume of dilutant air could realistically dilute the heading concentrations down to compliance level, so once you're at 308 you could blow a hundred thousand CFM and it's not going to make any difference in the heading. You're still going to be above compliance levels. In the 31-Mine Study it indicated that the DPM concentration levels in gold mines were generally higher than those found in the limestone and trona operations. This it felt to be partially a function of the mining geometry. Gold mines, physically we have smaller stopes, smaller headings, and larger tonnage open room geometry utilized by other mining methods. Exhaust comes out at the same entry that it enters, and it has no opportunity to convect up into the upper reaches of the stope areas where sampling would not be able to collect it. The typical response to lowering DPM concentrations within work headings without resorting to exhaust filtration is to improve stope ventilation either through maintaining existing ventilation ducting or increasing the size of either the auxiliary fan and/or the ducting face that seems to be a problem. While this would seem like a plausible approach, it assumes that such equipment could be mounted in the areas of concern. Large headings can accommodate large vent fans and ducting, but smaller headings, such as those required at the Greens Creek Mine, can only accommodate smaller diameter ducting without interfering with the operation of equipment. Ventilation volumes by their nature, they're limited by fan and ducting diameters, and there's an upper limit to that as the realistically feasible ventilation volumes that can be delivered to stopes. A 36-inch fan will only push so much air, to where you have to start going up to 40-inch, 44, that type of thing. So those kind of speak to the technical issues, I guess, regarding ventilation as we have it at our specific mine study. Should we go into the particulate plan thing? MR. FOX: Not unless you're interested, you know, in some of the methods that we currently have to control it. MS. GREEN: Would you like to submit those for the record so we can consider them for the final -- MR. FOX: Yeah. Basically it's a tiered approach. We're going to start looking at ventilation first, and then filtration until the big ticket items, which is changing of the whole mining environment and that type of thing, so we'll submit those in writing. MR. GOOD: As far as the way forward, what we're going to be looking for, the way I see it, in order to hit these proposed lower levels as a final limit, we're going to have to continue on with compliance assistance to establish controls for all forms of the equipment that we have underground. We have established successes with the higher duty cycle for cycle engines in the fleet, and we've outfitted those already, but when it goes down to the ancillary equipment -- outer trucks, scissor lifts, the smaller utilization or duty cycle engines that don't generate the heat -- a number of those things are outfitted with two-cycle engines, and short of repowering those things into a new engine, which is going to run us anywhere from $15,000 to $25,000 each, we don't see anything on the horizon for technologically feasible particulate traps to be fitted on two-cycle engines, unless MSHA has got some information that we don't. There's also additional time necessary to evaluate the durability of these filters. As I say, we've invested about 26,000 hours of filtration time at this point, and we've now got less than a thousand hours on another one, so we're seeing failures at around 2,500 to 3,500 hours typically, and that's a fair amount of time to invest in something that's going to fail. You're into the game for eight months or a year, maybe a little bit more, before you can establish whether or not it's durable, can withstand the rigors of the mining environment, and so that needs to be taken into consideration, I guess is our stance. When it comes to establishing a practical mine-worthy filter technology, there's considerable time to invest in trying to come up with that determination. MR. FOX: I think that's why I mentioned earlier that we haven't really defined what that means, or I haven't seen a definition, and it would really be strongly recommended that MSHA come up with a definition for "mine-worthy practical filter technolog," so that we know what we're trying to achieve. You're welcome to any questions. MS. SMITH: Questions? MR. SASEEN: One. Mark, you said '03 May you repowered one of your machines with a Mercedes. MR. GOOD: Yeah. MR. SASEEN: Which one was that? MR. GOOD: That was a grader. It had a Caterpillar 306 in it. We bought it used, and before we sent it underground we had it changed out, I think, with a Mercedes 904. MR. SASEEN: I know at the end you said $15,000 to $25,000 on retrofitting engines. Is that about where that cost would have came in? Can you provide us with any information? MR. GOOD: Yeah, Mercedes, because they're knew into the game, they don't want any old person to go and throw an engine in. They want their personnel to install their equipment, so we have to bring in people to do it, and you pay a premium for that, so they're at the high end. That $25,000 is for a Mercedes retrofit. To go with a 40 Series retrofit or something like that at Detroit you're probably looking at $15,000 to 18,000 just because we can do it on site ourselves. But those engines are being replaced by the Mercedes line anyway. We're probably going to be looking at $20,000 to $25,000 an engine to go with that technology. MR. FOX: George, do you want us to supply information on that? MR. SASEEN: If you would. Do you have a plan for retrofitting the two-cycle engines, or do you just have a plan for retrofitting engines in general? MR. GOOD: As they come up, as they kind of reach the end of their service life, we're replacing engines. The problem with the utility vehicles is that, you know, as a fleet they're probably running about 6,000 hours at this point, and they're going to last forever. We're just not going to burn out at the rate we're using them, so I can see them kind of being a part of the fleet for, you know, five years yet. MR. SASEEN: Okay. MS. SMITH: Other questions? Thank you, gentlemen. MR. FOX: Thank you. MS. SMITH: I think we'll take a break now for about 15 minutes, and we have one speaker after the break, Mr. Leavitt. (Recess, 11:15 to 11:35 a.m.) MS. SMITH: We're back on the record. Our next speaker is Mr. Leavitt. Would you both say and spell your name and affiliation for the recorder. MR. LEAVITT: My name is Wes Leavitt, L-E-A-V-I-T-T. I am going to present to you two sets of comments here, one for Nevada Mining Association and the second for Newmont Mining Corporation. As I mentioned, my name is Wes Leavitt. I am a certified industrial hygienist employed by Newmont Mining Corporation, which is a member of the Nevada Mining Association. I appreciate the opportunity to comment on the proposed rule for diesel particulate matter exposure of underground metal and nonmetal miners, dated August 14th of '03. NVMA represents Nevada's mining industry, and a number of our underground mining members are directly affected by the DPM rule. We have monitored the entire DPM regulatory process closely, and we have participated very actively in the initial proposal phase. We're pleased that the agency has worked cooperatively with the industry to resolve major flaws in the initial rule. Allowing mine operators to apply for an exception of time when unable to apply with the standard is an example of positive change in the rule. More often than not DPM reductions take a great deal of time money and effort to implement. As long as employees' health is being protected using PPE or other acceptable controls, the time required for compliance should be based on each mining situation. As far as addressing feasibility, as indicated by table V-10 in the preamble, representing the agency's baseline study and as our member companies can and will testify later on, many underground metal mines will not be able to meet the initial 400 standard, and virtually none can meet the final proposed limit of 160. In fact, Federal Register Page 48676 indicates that 30 percent of all mines had one or more compliance assistance visit results above 400 total carbon, adjusted to the EC equivalent. This is in spite of the fact that mine operators are implementing controls such as changing out older engines with new cleaner burning ones, installing exhaust filters, improving PM programs, and spending millions of dollars on ventilation upgrades. Members of our association have been working several years doing test work on sampling methodology and exploring DPM control methods such as exhaust filters. We're pleased to acknowledge the fact that many member companies of the association have participated in the filter tests conducted in house, in conjunction with NIOSH, and also in conjunction with NIOSH and MSHA. At least one company has been using exhaust filters on select pieces of equipment for over three years. As a result we are convinced that where filters can feasibly be sized and fitted to equipment significant reductions in DPM levels will result. There are still, however, applications where filters are not feasible and at least one member company is it experiencing back-pressures in excess of engine manufacturers' recommendations. Filter efficiencies are good but are not universal, and it's only one dimension. There's still plenty of work to be done before this technology can be relied upon. As mentioned earlier, member companies have participated since the beginning in testing sample methodology. We agree with the agency's decision to rely upon only personal samples for compliance determination. We also agree with the decision to use elemental carbon as a surrogate instead of total carbon as recommended by the 5040 method. Although not totally eliminating the interference, using EC as a surrogate for DPM reduces the interference significantly. As mentioned in the Federal Register, Volume 68, No. 157, Page 48670, the goals of the 31-Mine Study include an assessment of the validity, precision and feasibility of the sampling and analytical method. It is noted further that the actual results of the 31-Mine Study suggests that the analytical method is accurate and appropriate. There is no scientific basis in the results of the 31-Mine Study to conclude that a single sample is appropriate for enforcement purposes. The paired sample analysis of the 31-Mine Study clearly demonstrates the uncertainty of using a single sample to characterizing average DPM concentrations. Although the single sample strategy is consistent with other MSHA strategies, this consistency does not make it correct. In the proposed 57.5062 MSHA intends to cite for a violation of the plan regardless of DPM exposure. Thus if an operator decided to use more effective engineering and/or administrative controls than were identified in the control plan they would be cited. The DPM control plan must be a dynamic document that enables the operator to respond quickly to changes in technology or operating conditions. A citation should only be issued for documented overexposure, not changes in DPM control strategy that are meant to take advantage of rapidly evolving technology. My final comments are related to the need for a rule to begin with. The risk assessment used to justify the rule is flawed and does not meet the requirements set forth by OMB data, quality mandates or MSHA's statutory duty to issue rules that address significant risks, provide significant benefits, are based on the latest scientific evidence, and are consistent with other governmental agency actions. NIOSH and NCI are in the tenth year of a massive study commissioned because of suspected health concerns that are not supported by existing science. We are urge MSHA to withdraw 160 and make 400 the final PEL. That concludes my comment from the Nevada Mining Association. Do you want to do any questions on that or just roll into the next section? MS. SMITH: Does any panel members or MSHA folks have questions of Mr. Leavitt? Okay. MR. LEAVITT: The next comments here are specifically to Newmont. Again, we appreciate the opportunity to comment. We own and/or operate four underground gold mines in Nevada that are subject to these rules and a fifth mine that's in the development stage. During the last several years we have engaged in DPM sampling analysis and an ongoing engineering analysis of possible methods of compliance with the standard. We have tested diesel filters and engine replacement as the primary means of attempted compliance, and have instituted a number of work practice controls aimed at reduction of DPM. Our filter tests have had mixed results with some filters lasting in excess of 6,000 operating hours and providing an excess of 80 percent DPM reduction from the tailpipe, and others failing within one month of use. We have determined that many pieces of equipment that we use cannot accommodate filter systems or for which filters do not make sense from an economic or operating feasibility basis. We also have discovered that filter systems for our equipment generally are far more costly than he estimated by MSHA, with filtering systems at two of the mines budgeted at $1.9 million for equipment, installation and downtime costs. We have installed some test replacement engines and ordered replacements for portions of our underground diesel fleet which we discovered through testing were the greatest contributors to DPM levels. We'll be monitoring the success of these retrofits for feasibility, and we're examining the potential to change engines in additional equipment. Again, we've discovered that the cost for engine changes exceeded those estimated by MSHA at $1.9 million for the cost of the filters, the engines, installation, downtime, et cetera. In addition, we have analyzed the potential DPM reductions achieved through additional ventilation that is feasible from an engineering perspective, and we're in the planning stages for the addition of a new major shaft to service two of the mines. This addition will cost and an additional $1.1 million to install and an additional $414,000 per year to operate in energy costs. We note that the potential for ventilation additions is not only contingent upon available resources but also on engineering capacity. Ventilation quantity and velocity limitations are created for each mine by the distance, width and height of entries, road and dust conditions, and ground control conditions that may prevent expansion of entry dimensions. Our exposures and control estimates tell us that our efforts may achieve compliance with the 400 standard, but we're concerned that MSHA's single sample compliance determination will still create compliance difficulties for the 400 standard. Moreover, we do not believe that there's any feasible method of compliance with the 160 standard. As a result of our review of the health effect science, we agree with others that there is no valid risk assessment that supports the 160 standard scheduled to take effect in 2006. When we combine the risk analysis with the lack of potential for compliance, we conclude that MSHA must delete the 160 standard in this rulemaking. First, we ask that MSHA accept and process requests for compliance extensions with the 400 standard before enforcement is initiated. Second, to the extent that the rulemaking implements the interim partial settlement agreement, we endorse it. However, we believe that the agreement required MSHA to review the 160 standard in this rulemaking, and we strongly urge them to delete the 160 standard. The settlement with MSHA recognizes our position that DPM limits are not scientifically justified or technically or economically feasible, but permits implementation of the 400 total mark carbon limit, converted to elemental carbon, as a compromise. Another part of that compromise in the reexamination of the 160 limit and the changes needed to fix the 400 rule. While we appreciate MSHA's settlement efforts and its attempt to fix the rule, we need the deletion of the 160 limit in the rulemaking to permit adequate mine planning and operation lead times and compliance efforts with the 400 standard. Since the DPM rule selects one surrogate for measuring diesel exhaust based on measuring convenience, not a specific risk analysis, the DPM rule is somewhat redundant to the regulation of other diesel components such as regulated gases (CO, NO, NO2). These existing standards provide protection, and OSHA relies on them for diesel engines in construction, tunneling, rail, truck, marine or bus depots, repair facilities, agricultural and aviation facilities. We believe that the 400 settlement standard combined with the existing regulation of diesel gases provides more than adequate protection and that the 160 standard should be deleted. The group proposal for an elemental carbon standard recognizes the interference problems identified earlier, and we endorse the change. However, we still question the accuracy of the new measurement system. The submicron impactor was proven to be flawed before the rule was finalized and again during the field tests. We appreciate MSHA's repeated efforts to fix it, but we're still worried that it will continue to produce flawed results. The device and method is simply too new to be used for enforcement. We're particularly concerned that the results at or below 160 are not feasible from an accuracy perspective. We appreciate MSHA's change in the rule to permit PPE, and we strongly urge MSHA to delete the prohibition of rotation of personnel as a protective option. We oppose enforcement of occupational health standards based on a single sample because health standards are based on a long-term exposure, and laboratory results of single samples are not accurate representation of exposure or health risks. We endorse MSHA's new enforcement policy which provides that MSHA will consider operator sampling results that differ from MSHA results in determining compliance, but we ask that that be made part of the rule. At Federal Register Page 48706, MSHA asks for information and data on the appropriateness of 1.3 as the factor to convert EC to TC, and the interim limit at 308 micrograms of elemental carbon derived from the original 400. The MARG Group responded during settlement discussions that its extensive sampling base published by Drs. Howard Cohen, Jonathan Borak and Thomas Hall support at least 320 micrograms of EC equivalent compared to a 400 microgram total limit, and we endorse that proposal. MSHA states that 25 percent reduction is feasible and can be achieved by the control itself or in combination with other controls. The controls should be evaluated independently but in reference to site-specific changes in DPM levels if meaningful decisions are to be made regarding their significance or effectiveness. The DPM rules should not address other topics covered by other regulations, such as respiratory protection. Current respiratory rules in 5005 are adequate and should be uniformly applied to all respirator applications. We generally oppose plan proposals, even though this one is an improvement over the original January 2001 provision. A control plan adds paperwork without benefits and performance is still measured by DPM levels regardless of the plan. The limited time and efforts of my health and safety personnel is better spent elsewhere. Thanks for the opportunity to testify, and we may submit additional comments prior to the close of the comment period. MS. SMITH: Thank you, Mr. Leavitt. Questions from the MSHA panel or other representative? MR. SASEEN: Becki. MS. SMITH: Okay. MR. SASEEN: You mentioned some failures of one month on some filters. Can you elaborate on what that was, or would you like to include that in your written comments? MR. LEAVITT: I'll have to include that in the written comments because I don't have that information. MR. SASEEN: I would appreciate that, to see what specific failures were. MR. LEAVITT: Okay. MR. POMROY: Did you do like a failure analysis of those? MR. LEAVITT: I didn't, but I'm sure it was done. I'll have to get with our maintenance guys. MR. POMROY: Okay. I have one other question too. When you talked about not adding additional requirements related to PPE, are you more concerned about the selection of the respirators themselves or more with medical transfers and that aspect of it, or just anything having to do with PPE? MR. LEAVITT: You mean why I don't think it should be addressed in the rule? MR. POMROY: You said you were generally opposed to putting specific requirements related to PPE in the DPM standard, and we have complaints for the PPE requirements elsewhere. MR. LEAVITT: I just think it should be consistent, at one rule. I don't know if this is really the place to address it. MR. SASEEN: Just one quick follow-up. On this matter was it one manufacturer or several filter manufacturers? MR. LEAVITT: We are currently using two. MR. SASEEN: Would you address that specifically in your comments? MR. LEAVITT: Yes. MS. SMITH: Mr. Leavitt, thank you very much. We appreciate your comments. Do we have any others signed up for speakers? What I think we'll do at this point is go off the record and reconvene at 1:00, and we'll check at that point to see if we have additional speakers who wish to present testimony, and if not we will close the record at that time, so we'll be back on the record at 1:00. (Recess, 11:52 a.m. to 1:00 p.m.) MS. SMITH: We're back on the record. We have no further speakers lined up to testify today, and therefore we officially close this record. Thank you for coming. (Concluded at 1:00 p.m.)