IN THE MATTER OF: ) ) PROPOSED RULE ON DIESEL ) PARTICULATE MATTER EXPOSURE OF ) UNDERGROUND METAL AND NONMETAL ) MINERS ) Pages: 1 through 54 Place: Rosslyn, Virginia Date: January 5, 2006 DEPARTMENT OF LABOR OFFICE OF STANDARDS, REGULATIONS, AND VARIANCES, MINE SAFETY AND HEALTH ADMINISTRATION REGULATORY DEVELOPMENT DIVISION IN THE MATTER OF: ) ) PROPOSED RULE ON DIESEL ) PARTICULATE MATTER EXPOSURE ) OF UNDERGROUND METAL AND ) NONMETAL MINERS ) ) Room 2500 1100 Wilson Boulevard Rosslyn, Virginia Thursday, January 5, 2006 The hearing commenced, pursuant to notice, at 9:02 a.m. BEFORE: EDWARD J. SEXAUER Moderator APPEARANCES: On behalf of the Department of Labor: DORIS CASH DEBORAH GREEN JAMES PETRIE WILLIAM POMROY GEORGE SASEEN P R O C E E D I N G S (9:02 a.m.) MR. SEXAUER: Good morning. My name is Edward Sexauer, and I am Chief of the Regulatory Division of the Office of Standards, Regulations, and Variances, Mine Safety, and Health Administration, and I will be the Moderator for today's public hearing. On behalf of David Dye, Acting Assistant Secretary for Mine Safety and Health Administration, I want to welcome you all here today. In memory of the 12 miners who lost their lives this week at the Sago Mine, we will begin the meeting with a moment of silence. (Pause.) MR. SEXAUER: Thank you. We also want to inform the audience that Mike Wright of the Steel Workers has given us some sad news; that Harry Tuggle, longtime Safety and Health Representative of the Steel Workers is gravely ill. Let's go off the record for a second. (Discussion held off the record.) MR. SEXAUER: We will go back on the record. The purpose of this hearing is to obtain input from the public on the proposed rule published in the Federal Register on September 7, 2005, addressing Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners. Joining me on the hearing panel today is Jim Petrie, who is the District Manager of MSHA's Northeastern District for Metal and Nonmetal, and Chair of the Diesel Particulate Matter Rulemaking Committee; Doris Cash, who is on his right, with MSHA's Metal and Nonmetal Health Division; and on my left, George Saseen, with MSHA's Technical Support Directorate; Bill Pomroy, from MSHA's Metal and Nonmetal North Central District; and Deborah Green, with the Office of the Solicitor for Mine Safety and Health. Also in the audience is William Baughman and Robert Stone from the Office of Standards, Regulations and Variances. Pam King is also here from our office, and she is currently at the sign-in desk. Let me reemphasize that our purpose for being here today is to obtain your views on the September 7, 2005 proposed rule. This hearing is being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is the practice of the 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 asked of the hearing panel. Cross-examination from members of the audience of the speakers will not be permitted. 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 those 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 make sure to sign in at the registration table. We will remain in session today until everyone who desires to speak has an opportunity to do so. Also, if you are not signing up to speak today, we would like for you to sign the general sign-in sheet so that we have an accurate record of attendance at today's hearing. We will accept written comments and data at this hearing from any interested parties, including those who are not speaking at today's hearing. When I call you to speak, please come to the speaker's table, and begin your presentation by identifying yourself, and your affiliation, for the record. If you have a prepared statement or any supporting documents for the record, you can leave a copy with me or with Pam King from my office. You can submit written comments on this hearing today, or you can send them to MSHA's Office of Standards electronically, by fax, or by regular mail, or hand-delivery, using the address information listed in the hearing notice. The hearing notice is available if you don't have a copy at the sign-in desk, and it has all the information for communicating to us any written comments that you have. In addition to the hearing today, there will be three additional hearings; January 9, 2006, in Salt Lake City; and January 11, 2006, in Kansas City, Missouri; January 13, 2006, in Louisville, Kentucky. The post-hearing comment will end on January 27, 2006. A transcript of this hearing will be made a part of the official record, and it will be posted on our website in several days at www.msha.gov. Before we begin, I would like to give you some background on the proposed rule we are addressing today, and that I am going to ask Jim Petrie to tell you a little bit about the proposed rule. On January 19, 2001, we published a final rule addressing the health hazards to underground metal and nonmetal miners from exposure to diesel particulate matter. The rule established new health standards for these miners by requiring, among other things, use of engineering and work practice controls to reduce diesel particulate matter -- and I am going to refer to that as DPM -- to reduce DPM to prescribed limits. It sets an interim and final DPM concentration limit in the underground metal and nonmetal mining environment, with staggered effective dates for implementation of the concentration limits. The interim concentration limit of 400 total carbon micrograms per cubic meter was to become effective on July 20, 2002. The final concentration limit of 160 total carbon micrograms per cubic meter was scheduled to become effective on January 20, 2006. On January 29, 2001, several mining trade associations and individual mine operators challenged the final rule. The United Steelworkers of America intervened in the case, which is now pending in the United States Court of Appeals for the District of Columbia Circuit. The parties agreed to resolve their differences through settlement negotiations with us, and we delayed the effective date of certain provisions of the standard. On July 5, 2001, as a result of Phase I settlement negotiations, we published two notices in the Federal Register. One notice delayed the effective date of Section 57.5066(b) related to tagging requirements in the maintenance standard. The second notice proposed a rule to make limited revisions to Section 57.5066(b), and added a new paragraph to Section 57.5067(b), Engines, regarding the definition of the term, "introduced." We published a final rule on February 27, 2002. Phase II of the settlement agreement was finalized on July 15, 2002, as a written agreement. Under the agreement, the interim concentration limit of 400 total carbon micrograms per cubic meter became effective on July 20, 2002. We afforded mine operators one year to develop and implement good faith compliance strategies to meet the interim compliance limit, and we agreed to provide compliance assistance during this one-year period. We also agreed to propose rulemaking on several other disputed provisions of the 2001 final rule. The legal challenge to the rule was stayed pending completion of additional rulemaking. On September 25, 2002, we published an Advance Notice of Proposed Rulemaking. We noted in the -- and I am going to refer to this as ANPRM, Advance Notice of Proposed Rulemaking. We noted in the ANPRM that the scope of the rulemaking was limited to the terms of the Second Partial Settlement Agreement, and posed a series of questions to the mining community related to the 2001 final rule. We also stated our intent to propose a rule to revise the surrogate for the interim and final concentration limits, and to propose a DPM control scheme similar to that included in our longstanding hierarchy of controls used in our air quality standards for metal and nonmetal mines. In addition, we stated that we would consider technological and economic feasibility for the underground metal and nonmetal mining industry to comply with the revised interim and final DPM limits. And we determined at that time that some mine operators had begun to implement control technology on their underground diesel powered equipment. Therefore, we requested relevant information on current experiences with availability of control technology, installation of control technology, effectiveness of control technology to reduce DPM levels, and cost implications of compliance with the 2001 final rule. On July 20, 2003, we began full enforcement of the interim concentration limit of 400 total carbon micrograms per cubic meter. Our enforcement policy was also based on the terms of the second partial settlement agreement and includes the use of elemental carbon as an analyte to ensure that a citation based on the 400 total carbon concentration limit is valid, and not the result of interferences. The policy was discussed with the DPM litigants and stakeholders on July 17, 2003. In response to our publication of the ANPRM, some comments recommended that we propose separate rulemakings for revising the interim and final concentration limits to give us an opportunity to gather further information to establish a final DPM limit, particularly regarding feasibility. In the subsequent notice of proposed rulemaking, NPRM, published on August 14, 2003, we concurred with these commenters and notified the public in the NPRM that we would propose a separate rulemaking to amend the existing final concentration limit of 160 total carbon micrograms per cubic meter. We also requested comments on an appropriate final DPM limit and solicited additional information on feasibility. The proposed rule also addressed the interim concentration limit by proposing a comparable PEL of 308 micrograms per cubic meter based on the EC, the elemental carbon, surrogate, and included a number of other provisions. On Jun 6, 2005, we published the final rule revising the interim concentration limit. This rule changed the interim concentration limit of 400 micrograms per cubic meter measured by TC, to a comparable PEL of 308 micrograms per cubic meter, measured by EC. The rule requires our longstanding hierarchy of controls that is used for our other exposed-based health standards at metal and nonmetal mines, but retains the prohibition on rotation of miners for compliance. Furthermore, the rule, among other things, requires us to consider economic, as well as technological, feasibility in determining if operators quality for an extension of time in which to meet the final DPM limit, and deletes the requirement for a control plan. Currently, the following provisions of DPM standard are effective: Chapter 57.5060(a), establishing the interim PEL of 308 micrograms of EC per cubic meter of air, which is comparable in effect to 400 micrograms of total carbon per cubic meter of air; Chapter 57.5060(d), addressing control requirements; Chapter 57.5060(e), prohibiting rotation of miners for compliance with the diesel particulate matter standard; Chapter 57.5061, compliance determinations; Chapter 57.5065, fueling practices; Chapter 57.5066, maintenance standards; Chapter 57.5067, engines; Chapter 57.5070, miner training; Chapter 57.5071, exposure monitoring; and Chapter 57.5075, diesel particulate records. On September 7, 2005, we proposed a rule to phase in the final DPM limit because we are concerned that there may be feasibility issues for some mines to meet that limit by January 20, 2006. Accordingly, we proposed a five-year phase-in period and noted our intent to initiate a separate rulemaking to convert the final DPM limit from a total carbon limit to an elemental carbon limit. We set hearing dates and a deadline for receiving comments on the September 7, 2005 proposed rule, with the expectation that we would complete the rule-making phase in the final diesel particulate matter limit before January 20, 2006. After publication of the September 7, 2005 proposed rule, we received a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, the USW, for more time to comment on the proposed rule. The USW explained that Hurricane Katrina had placed demands on their resources that prevented them from participating effectively in the rulemaking under the current schedule for hearings and comments. We recognize the USW's need to devote resources to respond to the aftermath of Hurricane Katrina and the impact that would have on their participation under the established timetable. We also received a request from the National Stone, Sand, and Gravel Association, NSSGA, for additional time to comment on the proposed rule, and for an additional public hearing in Arlington, Virginia. Accordingly, due to requests from the USW and NSSGA, we published a notice on September 19, 2005, that changed the public hearing dates from September 2005 to January 2006. We extended the public comment period from October 14, 2005, to January 27, 2006. In addition, on September 19, 2005, we published a notice in the Federal Register temporarily delaying the applicability date for 30 C.F.R. 57.5060(b), published in the Federal Register on January 19, 2001, from January 20, 2006, to May 20, 2006, to provide sufficient time to complete the September 7, 2005 proposal to amend the 2001 diesel particulate matter rule. Now, before calling our first speaker, I would ask Jim Petrie, the Chairman of the DPM Rulemaking Committee, to discuss the elements of this proposed rule. MR. PETRIE: Thank you, Ed. This proposal is fairly narrow in scope, and it would revise the effective date of the final DPM limit, and delete the existing provision that restricts newer mines from applying for extensions of time for meeting the final limit. Additionally, it requests public comment on a number of significant issues, including the appropriateness of including in a final rule a provision for the medical evaluation of miners required to wear respirators, and the transfer of miners who are unable to wear respirators. It would also ask for comments on the appropriate factor for converting the final limit from total carbon to elemental carbon, although MSHA has stated that this would be undertaken in a separate rulemaking. Regarding the proposal to change the effective date of the final limit, the proposal would gradually phase in the 2001 DPM final concentration limit of 160 micrograms of total carbon over a period of five years, until a final limit of 160 micrograms is reached in January 2011. The current interim limit of 308 micrograms of elemental carbon will remain in effect until May 20, 2006. Thereafter, the first phase-in final limit, which would be the same as the current interim limit of 308 micrograms of elemental carbon, would be effective until January 20, 2007. The final limit would be reduced each year through January 20, 2011, as follows. In January of 2007, it would be reduced to 350 total carbon; and in January of 2008, 300 total carbon; in January of 2009, 250 total carbon; in January of 2010, 200 total carbon; and in January of 2011, 160 total carbon. The preamble to the proposed rule includes extensive discussion on MSHA's 2001 assumptions regarding technological feasibility; our current concerns and tentative beliefs which question these assumptions; implementation issues, with available control technology; and our proposed assessment of the availability of alternative control technologies. MSHA requested that commenters address these and issues related to the scope of the proposed rule. Regarding the proposal to change the special extension requirement, we are proposing to delete Section 50.60(c)(3(i). The 2001 rule restricted MSHA from creating extensions to mine operators if equipment was not used in the mine prior to October 29, 1998. This was because diesel powered equipment prior to the date of the notice of proposed rule-making could experience compliance difficulties relating to such factors as the basic mine design, use of older equipment with higher DPM emissions, and other factors. Also, we believe that mines opening after October 29, 1998, would be using equipment with cleaner engines that would have less difficulty in meeting the final concentration limit. Presently, MSHA believes that this restriction is unnecessary since applications for extensions are voluntary, and the test for granting an extension is similar to that of enforcing existing 57.60(d) for the hierarchy of controls. The preamble discussion clarifies that we will begin to consider granting extensions due to technological or economical constraints for the initial final PEL of 308 micrograms of elemental carbon in January of 2006, and as Ed had mentioned, that has now been extended to May 20, 2006. MSHA requested comments on the effects of deleting a requirement, and he number of miners effected in the provision if it were eliminated, and whether the elimination would result in a reduction of health protection for miners. Among the other issues that MSHA is requesting public comments on include medical evaluation and transfer. Specific comments are requested on whether the final rule should provide for medical evaluation of miners who must wear respirators and the transfer of those miners who are deemed medically unable to wear them. In the preamble to the proposed rule, MSHA included a specific example of regulatory language that could be included in a final rule and requested extensive comments regarding the following issues. One is whether the final rule should contain provisions for medical evaluation and transfer of miners; whether the mine operator should be required to notify the district manager of the health professional's evaluation; and that the miner will be transferred; whether MSHA should include in the rule a specific time frame from transferring the miner; whether the mine operator should have to maintain a record of the medical evaluation, and if so, for how long should the record be maintained. And whether the provision include protection of medical confidentiality, the cost to the mine operators for implementing such a requirement, and other relevant information and data. We also requested public comment on the appropriate conversion factor. MSHA will initiate separate rulemaking to determine what the correct TC to EC conversion factor will be for the phased-in final limits. In the interim, MSHA wants your comments on data for establishing an appropriate conversion factor and a time period for the phase-in of the final limit, technological implementation issues, and the cost and benefits of the rule. Also, we are interested in your views on any other scientific approaches for converting the existing total carbon limit to an appropriate elemental carbon limit. If MSHA does not complete the rulemaking to convert the final limits before January 20, 2007, the Agency is considering using the current 1.3 conversion factor that we use to establish the interim diesel particulate PEL of 308 elemental carbon to convert the phased-in final DPM total carbon limits to elemental carbon equivalents. Regarding economic feasibility, MSHA stated in the preamble to the proposed rule that the Agency intended to use the entire rulemaking record supporting the 2001 final rule, and the new information gathered during the recent rulemaking to promulgate the new interim PEL. This data suggests that few mines would experience economic feasibility problems in meeting the interim limit. However, MSHA is interested in gathering more information on economic feasibility applications, especially in light of recent technological developments, leading the Agency to propose a phased-in approach to meeting the ultimate final limit of 160 micrograms. MR. SEXAUER: Thank you, Bill. Okay. We will call our first speaker, Mike Wright, and I believe you have a panel? MR. WRIGHT: Yes. MR. SEXAUER: Good morning. If you would begin by stating your names and your affiliation, please. MR. WRIGHT: I will do all of that. MR. SEXAUER: Okay. Great. MR. WRIGHT: First, good morning. My name is Michael Wright, and I am the Director of Health, Safety, and Environment for the United Steelworkers. I'm glad that Ed read the whole name of the union, and that prevents me from having to do it. It is a very long name. But we are known as the United Steelworkers. We are a union representing 850 thousand workers in North America, including the majority of unionized metal and nonmetal miners in both the United States and Canada. With me today are Wesley Smith, who is the President of our Local Union 5-996, which represents miners at the Morton Salt Mine in Fairport, Ohio, along with his Vice President, Edward Bowman. Our group also includes Dr. James Weeks, a consultant to the United Steelworkers, who I know is familiar to many in MSHA from his long service with the United Mineworkers of America. This is, of course, a sad day. It is a day on which the entire mining community is united in mourning the loss of 12 miners in West Virginia, and praying for the recovery of the 13th. In our brief comments today, and in the written material that we will submit later, we will be sharply critical of MSHA's proposal to change the diesel particulate standard, but the West Virginia tragedy reminds us of how much we depend on this Agency, and how much we honor its history and values, how grateful we are for the dedicated work of the MSHA career staff, both in Arlington -- or I should say the staff of the Solicitor's Office as well, both in Arlington and in the field. So if we are critical in this case, it is because we believe that MSHA's recent actions on this standard are inconsistent with that history, those values, and the commitment to protect miners that animates so many that work in this Agency. Inconsistent, because this is the first time that MSHA -- indeed the Department of Labor itself, MSHA or OSHA -- has attempted to significantly weaken the existing health standard. If MSHA succeeds, many miners will continue to risk cancer, and some will die from it. Others will contract serious respiratory disease. We currently have a standard on the books. The final exposure limit of 160 micrograms per cubic meter total carbon was scheduled to become effective in a few days, and is now scheduled to become effective later this spring. When the standard became law in 2001, mine operators were given five years to come into compliance with that limit. MSHA and NIOSH gave the industry an extraordinary amount of help, an almost unprecedented amount of help, in the form of compliance assistance and research into feasible, practical, and relatively inexpensive controls. The United Steelworkers consented to a change that has been proposed that will give individual mine operators an unlimited number of special extensions where they can demonstrate the need. None of that was enough for some operators or their trade associations. While many operators have made a good faith effort to lower exposures and to come into compliance, history shows that some will wait until the day the government finally has the power to cite them and impose penalties. MSHA now proposes to delay that day for five more years. Reopening the record gives others the opportunity to argue that the standard should be weakened further, perhaps to the point where the day of reckoning never comes at all. Again, this is different from other rulemakings in that a standard is already in place. MSHA has found that the standard protects miners from a significant threat to their health and is feasible. Those were the findings in 2001. Yet, the Agency proposes to weaken it by a lengthy unjustified delay. The burden of proof rests squarely with MSHA and anyone else who might propose a more drastic weakening. I should say that is the legal burden of proof. In the words of Carl Sagan, "Extraordinary claims require extraordinary evidence." It is extraordinary for MSHA to claim that it has to weaken protection for thousands of miners. So far we have seen no evidence to back that claim, let alone extraordinary evidence. Indeed, the evidence which has accumulated since 2001 gives us even more confidence that the standard is feasible and feasible now. Although we have no obligation to prove our case that the existing standard should be retained, the USW intends to show in this rulemaking that the existing standard is feasible both technologically and economically under applicable legal standards. We will do so through written documentation later in the process. Today, we would like to touch briefly on a different issue in the rulemaking, one that Mr. Sexauer has discussed and Mr. Petrie, and that issue is respirators, and the need for medical evaluation and transfer rights. Every employer regulated by MSHA's sister agency at OSHA is required to provide medical evaluations for workers required to wear respirators. Every professional association involved in safety and health recommends it; the American Industrial Hygiene Association; the American Conference of Governmental Industrial Hygienists, and the American College of Occupational and Environmental Medicine, to name the most prominent. There is very substantial evidence in the record of the relevant OSHA hearings to support medical evaluations, and we would ask that that evidence be incorporated into this record as well, since it is in the files of the Department of Labor. We believe that all miners should receive a medical evaluation before being assigned to where a respirator to ensure that they may do so safely. Only a few will be unable to wear a negative pressure respirator, the simplest and cheapest kind. Most of those who are unable to wear a negative pressure respirator will be able to wear a positive pressure respirator, a powered respirator. Very few miners will have to be reassigned. But unless miners are assured that they will keep their jobs even if they cannot wear a respirator, our experience over decades, and the experience of other unions under both the Mine Act and the Occupational Safety and Health Act, is that some workers will be deterred from fully participating in medical evaluations. Some may refuse the evaluation altogether, and others may give inaccurate answers on the medical history, and it is medical histories that form the basis of most of those evaluations. No one should have to choose between their health and their job. Miners removed from high exposure areas must therefore have transfer rights and full earnings protection, both as a matter of health and as a matter of simple justice. And, of course, as a matter of law, for transfer rights and earnings protection are explicitly required by Section 101 of the Mine Act. Of course, we will elaborate all of these points in our written submission and Brothers Smith and Bowman will also discuss them in a moment. Finally, we think that the final standard should limit the amount of time during a shift that miners are required to wear respirators. There is several ways to do that in regulatory language, and we will suggest some alternatives in our written submissions. The reason for doing that is that nobody can wear a respirator effectively if it is on your face for eight hours a day. I had worn respirators myself in many different situations, including some where atmospheres are immediately dangerous to life and health. And we know enough that unless you provide breaks for people, and they can take their respirator off, people will find ways to take their respirator off their face or to limit its effectiveness to avoid the problems with breathing resistance if they have to do it for eight hours, and we will submit some documentation on that. At the same time, we don't think that is an excuse for complying with the standard through worker rotation, and we will again suggest how those two issues can be separated, and how we can give miners a break occasionally, thereby making the respirator use more effective, without at the same time providing opportunities for employee rotation as a means of compliance. And that concludes my statement, and after all of us are finished, we will of course be happy to answer any questions to the best of our ability. I would ask that you direct all questions for our group to me initially, since I am more familiar with the expertise of each of the panel members. And thank you for your considerations. Wes? MR. SMITH: I was asked to come here, and I am not an expert on diesel. I am a salt miner, and I have worked at Morton Salt in Fairport, Ohio, for 29-1/2 years. I have seen a lot of miners who have worked for 45 years. I just had one retire after 45 years last Friday. I have seen a lot of changes in the last 10 years with diesel on the ground. I worked on a face, and I have seen yellow smoke. I worked around nitrate. I know the health. I have seen people of a young age die, 50 years old, with cancer, and heart problems, and their friends, and I worked with them for a long period of time. And I am glad to see the changes. We went from six -- we used to salt mine with frontloader trucks, and when we started putting pressure on the company, we went to LHDs, bigger buckets. We went from six machines down to five machines, and I have seen where diesel has come down, which is good, and that makes me happy. I have seen in the last three years that we went to all electric, and we had a Joy machine that is cutting our salt for us, and putting out about a million tons per year of salt, and Barry cutters hauling salt, and I have seen all of this, and I have seen it drop even more. I am proud to say that I work with a company that is trying to meet these goals, and all of the information that I have gotten in the last two months, we are meeting those goals, which is a good thing. That is basically all I have to say. I have seen people at young ages at our company that have been forced to retire with heart problems. They are 60 years old, and they still want to work, and the company says no, you can't work no more. If you have a heart problem, we can't let you work anymore because of health and safety. I have seen 53 year olds with lung cancer. I have seen guys retire and the next day they died. I know that we work in an environment where it is tough work, but we like that kind of work. So thank you for your health, and keep putting pressure on these companies. Thank you. MR. BOWMAN: I am Edward Bowman, and I also work at Morton Salt in Fairport, Ohio, with Wesley I am a vice president of our local. I have been there for 22 years this year, and I, myself, have seen a lot of changes in the 22 years that I have been there. Twenty-two years ago when I started, we ran three front end loaders, six to eight Hollins Trucks, four scalers, two Wolfe Loaders, numerous tractors, all of which was putting diesel smoke into our mine since the early '80s when I started there, until the present, though I have seen a lot of changes that the company has made. And they approached our local approximately five years ago, and told us that they were leading into a new direction in mining with the continuous miner. So they are trying to comply with it. For the 22 years that I have worked there, I have seen a lot of my friends -- five of them, and three of them have passed on now, who were strong young men, and two of them today are fighting cancer. And I, too, am glad for this hearing, and I appreciate the help that you people are trying to give us. That's all I have to say. DR. WEEKS: Good morning. My name is Dr. Jim Weeks, and I am certified industrial hygienist, and I have over 20 years experience in the mining industry as a hygienist. I am also trained as an epidemiologist. And today I speak as a consultant to the United Steelworkers. I wish to discuss two topics. First, I want to place this rulemaking in a historical context, and second, I want to discuss some of the risks associated with the delay in rulemaking. One of the events that led to MSHA's addressing the health hazards associated with diesel exhaust, and particularly diesel particulate matter, came from a joint request by the Presidents of the United Mineworkers and the United Steelworkers, to form an advisory committee to address this issue. That request was made in 1984, and the committee was formed, met, and issued its report in 1986. I was one of two members of this committee at that time representing the United Mineworkers. The committee concluded that diesel particulate matter was cariogenic and recommended amongst other matters that MSHA initiate a rulemaking to control diesel exposure. They recommended that an integrated approach be taken to control exposure, including consideration of engine design, fuel quality, equipment usage, mine ventilation, maintenance, and emission control technologies, among others. This was 20 years ago. Since that time additional research has confirmed the health risks associated with diesel particulate matter. Engineering research has developed and confirmed the feasibility and effectiveness of several means of reducing exposure, and measurement methods have been developed to monitor exposure. Most of this progress has been supported by NIOSH and MSHA -- that is, by taxpayers -- along with the cooperation of several mine operators. Given this context, I think that additional delay in rulemaking is completely unnecessary. A similar situation occurred nearly 40 years ago when methods for controlling coal miners' exposure to respire dust have been developed by the Bureau of Mines, and were shown to be feasible and effective. That was in the 1950s and 1960s. But with some exceptions, these methods were not uniformly used. On the contrary, coal mine operators claimed that they were not feasible. What caused them to be adopted were the consequent reduction in the concentration of respire dust was passage of the Coal Mine Health and Safety Act of 1969, and enforcement of that Act. The difference was enforcement, and that is what MSHA needs to do now. I am reminded in this context of a comment that Martin Luther King made in the early days of the Civil Rights Movement, in which it was proposed that civil rights be introduced gradually. And Dr. King was asked if he believed in gradualism, and he said I certainly do. I want my rights now, and I want the white people to get used to it gradually, and I think that is similar to what we think now. Now, let me go on to the health risks. The final level of the MSHA rulemaking to be achieved in 2011 is this 160 microgram level. This limit, without going into any detail, in my professional opinion is not adequate. According to risk assessments by NIOSH and others that I am sure that you are all familiar with, this limit would not reduce miner's lifetime risks associated with exposure to diesel particulate matter to less than one in a thousand. A significant risk would remain at that level. The health risk in the historical context are related issues. Underground miners experience the highest level of exposure to diesel particulate matter of any population in the U.S., much higher now than the limit of 160 micrograms that we have here. And they have experienced such exposure since diesel particulate matter was identified as a carcinogen over 20 years ago, and for long before that. This is an interesting time period. This is the average latency of the development of lung cancer from exposure to an environment carcinogen. Latency is the time from the first exposure to subsequent development of a tumor. In other words, a miner who entered the industry 20 years ago has already accumulated a significant risk of disease as a direct result of delay in the rulemaking. A delay, in other words, has material consequences to the health of miners. I urge MSHA to get on with the rulemaking, and to enforce the rules, and to enforce existing rules, and I urge mine operators to take advantage of the services that the government provides for protecting miners. Thank you for the opportunity, and we will be glad to answer any questions. MR. SEXAUER: All right. Thank you. MR. WRIGHT: Mr. Sexauer, I wonder if you would indulge us in a slightly unusual procedure. This morning, both Mr. Smith and Bowman told me some additional stories about what was going on in their mind that what I think would be useful to have in the record, and I wonder if you would permit me. This is not cross-examination, but just ask them to tell you those specific items if that is acceptable. MR. SEXAUER: All right. MR. WRIGHT: Mr. Smith, one person and one episode is not definitive, but you told me about a gentleman who was diagnosed with cancer who had never been a smoker. Can you tell us about that? MR. SMITH: Yes. His name was Curtis Layman, and he retired two years ago, and he was 60 years old, and he had 35 years experience as a salt miner, and he worked out on the face, and he did power tapping, nitrate, frame loader work. He loaded the trucks, and he was in diesel. Back then the tests that I saw were like 280s and 250s diesel going through out mine at that time. And he came to the unit one day, and he sat there, and he said, you know, I just came from the doctors. He said that doctor told me that I had to quit smoking. He said I told that doctor that I didn't smoke, and he says that that doctor called me a liar. He goes that doctor says you don't have to lie to me. He says you have got to quit smoking. That's all there is to it. And he told the doctor where he worked at, and this doctor goes, well, I think you had better get out of that mine then. He never smoked, and he was there for 30 years, and his doctor called him a liar, and called him a smoker after he did x-rays on his lungs. So that is one of the stories that I have heard and seen. Plus, I also talked about where I agree with the doctor a lot, is that the longer we pursue this mandate, the longer the companies are going to take advantage of our health, and that is not a good thing. I am 50 years old, and I look like I am 55 or 60. A rough life. I enjoy it, but it is hard, and we don't want to shut places down, but we want to work safe. And I think you guys are doing a good at that, and I hope you guys keep it up by sticking to your mandates. Anything else? MR. WRIGHT: Yes. You had shown me some data this morning, and we will put that in the record from the mine, but the data shows that even in the worst occupations the mine is currently complying with the 308 limit; is that correct? MR. SMITH: Yes, that's correct. We are complying with that limit at this time, and Mike knows more about this than I do. I just know numbers. Like I said, I am not a professional at this, but our data right now, I got the information from our safety director two days ago, and he showed me the paperwork that Mike has that says that we are meeting all the requirements, and that's good. And that makes me proud, and I thank my company for doing that. So we are in good hands. MR. WRIGHT: There are some occupations though where they are not getting the 160 limit; is that correct? MR. SMITH: Yes. MR. WRIGHT: And to the best of your knowledge are they in those areas using sort of using modern filter technologies to eliminate diesel? MR. SMITH: No. No, the machinery is older, and I honestly believe we could make those goals in those areas that we have followed proper safety procedures. We have Goiters running around there, Diesel Goiters that people won't shut off. We have lube trucks that service other machinery that they won't turn the key off on them. They leave them there to idle. And I think that is just us teaching our employees how important it is to shut that machinery off. That is an educational thing that we have to work on for safety for our employees in our plant, and something that we have to work with the company and union-wise. And we can get rid of those diesel goiters. There is no reason for us to have those goiters. And I think once we get rid of those and change our thinking patterns with our employees, we are really going to make those goals. MR. WRIGHT: And are they using any alternative fuels underground instead of diesel to your knowledge? MR. SMITH: Not to my knowledge. I don't think so. I am pretty sure that they are not. MR. WRIGHT: And let me ask both Mr. Smith and Mr. Bowman, that if you had a situation where some workers sometimes had to wear respirators, and MSHA provided that they had medical evaluations, and presumably it is at least a possibility that some people would be found unable to wear a respirator, if the result of that is that they lost their jobs, how do you think they would view the medical evaluation? MR. SMITH: Their jobs are important, and so my answer is that if they lose their job, or if they take a physical, they are going to keep their job. I mean, jobs are hard to come by. I don't know how to answer your question other than their jobs are important, and so I guess they would have to take a physical. If they couldn't pass because of the physical, and they had worked there for 35 or 40 years -- and my workforce is an older workforce, and I have been there for 39 years, and I am number 40 on the seniority list. I have 40 guys above me with 35 or 40 years, and I just had one with 45 years who retired. My concern is about the new people, and I don't want to see the new people go through the same thing that the older people went through. I don't know how to answer your question to be honest with you, Mike. MR. WRIGHT: Well, let me ask you this. Do you think that people would be tempted to either try to refuse the physical, or might be tempted to maybe cheat on it to save their jobs? MR. SMITH: Oh, they will cheat on it, sure. I mean, they will do that on all physicals. But to answer your question, it is just like hearing, and hearing protection. We have variances on sound and noise, and our company, there is no problem. If a machine makes too much noise, they make it quite clear. We switch it off. For four hours, you drive the machine, and for four hours, you drive the machine. So there are ways to work around that issue. I mean, we do it with hearing, and I am sure that we can do it with diesel. So I agree with you a hundred percent that there is ways to make sure that we can keep our jobs, and not put people in jeopardy who are wearing masks. We rotate jobs now. Ed Bowman, who is beside me, he is a qualified miner. One day, he built beltline, and one day, he will run salt with beltlines, and one day he might run a LHD, and one day he might run a bolter. In today's mining industry, you have to be qualified to do many jobs. If it is cheaper and more feasible for the company, and that is how we mine salt now, and we changed our patterns from 20 years ago. So, yeah, there is no problems in rotating. A person would cheat, I'm sure, if it came down to their job or wearing respirators. They came down with no smoking about 15 years ago, no smoking in the mines. We lobbied against it, but during that period of time we were not supposed to smoke on the grounds. Our foreman would allow us to smoke during our breaks. So does that answer your question? MR. WRIGHT: Yes. Mr. Bowman, do you want to comment on any of those issues? MR. BOWMAN: Well, I am not sure of the question that you are asking me, but if it was my job or wear the mask; is that what you are asking me? MR. WRIGHT: Yes. Suppose the standard said that they couldn't put you in a respirator unless you were evaluated to make sure that it was safe for you to wear it. And what those medical evaluations consist of is usually a medical history. You fill out a long questionnaire, and where they ask you about heart problems and lung problems. If your members thought that maybe if they flunked the physical that they might lose their job do you think they would be tempted to cheat, and to maybe answer those questions wrongly, and to maybe hide the fact that they had some symptoms? MR. BOWMAN: Yes, absolutely. MR. WRIGHT: Thank you. That's all. Again, we are ready for questions. MR. SEXAUER: I have one comment that I would like to make. You had mentioned, Mike, that there is relevant information on the OSHA hearings to support medical evaluations, and you would like for us to put that in the record. We will make an effort to get that information. But if you don't mind, could you have someone contact Pam King of my staff at (202) 693-9440, and let's say in a week or so. And just to confirm that the information that you are requesting and that we are gathering the information so that we have the right information on the record? MR. WRIGHT: Okay. MR. SEXAUER: doris, do you have any questions? MS. CASH: Yes. Mike, I have one question for you. You have already stated that if they felt that there might be some chance that their jobs could be in jeopardy that people might give the wrong answers of a medical evaluation. My question is other than that, if there is a chance that somebody could take a transfer, do you have anything that would tell us if that is possible in the mining industry, and the ability of a company to transfer somebody from one position, and the availability of another position to transfer people to? And as you mentioned, people are cross-trained, and people work in different jobs, and work in different jobs during the week; and would it be possible to transfer people to another position, and if there would be somebody else who could take over that position that could wear respiratory protection? MR. WRIGHT: Well, first, we believe that a number of miners who would be unable to wear respirators would be very small, especially when you allow powered positive pressure respirators to be used. Most of the medical problems with wearing respirators is based on breathing risks, and there isn't any when you have basically a powered positive pressure respirator. They are more expensive, or they actually are a lot more expensive, and the last time we bought one in my department, it was about $400. And if you can have more than a handful of people at -- well, first, we would expect that there wouldn't be that many respirators of any kind needed in any particular mine. And, second, the number of people who could not wear those respirators would be small; and third, the number of people who would wear even a powered respirator would be even smaller. Maybe nobody in the whole industry. Probably less than 10 or 15. Now, that is a guess, but it is based on a lot of experience with the same kind of issues on the OSHA side. To not have positions available to transfer people to would be to have a mine that was almost uniformly out of compliance, and a workforce that was so sick that they couldn't even wear a positive pressure respirator. And I think that the point that Mr. Smith made that miners are cross-trained, and that there are many places where a miner couldn't work at the face, for example, could have worked. I think that again means that the number of people to be transferred would be small, and there would be lots of positions available for them I think in the average mine. We will see if we can maybe tighten that up a little bit with some actual data in the final submission. I am not sure that we can as it may be hard to get at, but we will do our best. MS. CASH: Thank you. MS. GREEN: Mike, I need to state for the record that you indicated that you were going to be submitting some additional information from the Occupational Safety and Health Administration with regard to their data on the need to test miners and test persons before they are required to wear a respirator. I need to state that in the June 6, 2005 preamble, on page 32957, the agency gives a discussion about the OSHA data in reference to their generic respiratory protection standard. You might want to take a look at that information, and decide whether or not you feel that the agency needs additional data for the record. MR. WRIGHT: Yes. Thank you, Ms. Green. I have actually read through that material a couple of times. We just wanted to make sure that as a matter of policy that the information available to OSHA was also available to MSHA since you are both parts of the Department of Labor. MS. GREEN: And that's fine, and I need to clarify for purposes of some of the other audience who may not know that for each phase of the DPM rulemakings, the Agency incorporates the previous rulemaking record, and that is the basis of the 2001 rule, and the basis of the 2002 rule, and also the basis of the 2005 rule. Those records have been incorporated into this rulemaking, and so we will be awaiting that information from you. MR. PETRIE: Mike, am I correct that you indicated that you would be providing some regulatory language on how we could limit the amount of time that a miner would wear a respirator, yet not interfere with the prohibition on the rotation of miners? MR. WRIGHT: Yes. MR. PETRIE: Thank you. MR. SEXAUER: George. MR. SASEEN: Mike, I just want to clarify the equipment at the mine that Mr. Bowman and Mr. Smith work at. You said that you went to an electric miner? MR. WRIGHT: Yes. The shuttle cars, did they also go to electric? MR. SMITH: Battery. MR. SASEEN: Battery? MR. SMITH: Yes. MR. SEXAUER: So when was the first pickup of the diesel at? MR. SMITH: In the mine. Well, we have two panels that we are working on now. We have the F panel, which has a continuous miner in it, and that is in the front. The way our mine is set up, we have a maintenance shop, a maintenance area, and we have the electric and battery cars, and then we have the old processors in mining, which is our old cutters, and drills, and haulage with diesel. So, therefore, on the diesel, and there was a lot of planning behind that because of that reason. For blasting purposes and stuff like that, they can still run the continuous miner as they call it, and still have a third shift with the same air. So those employees have no diesel until we start the old section, where we probably at this point in time five or six guys working in that area hauling salt the old way. MR. SASEEN: And have they repowered or updated those machines, those diesel machines with newer engines? MR. SMITH: No. MR. WRIGHT: We should I think repeat that this mine is in compliance with the 308 level. They are not too far from compliance with the 160 level. And it is a mine where arranging simple ventilation is especially difficult because most of it is under Lake Erie, and you can't exactly sink an additional shaft way out there. And yet they are very close, and I think that as Mr. Smith has said, with some relatively simple improvements, they could probably get there. MR. SEXAUER: Any other questions from the panel? (No response.) MR. SEXAUER: Okay. Thank you, gentlemen. MR. WRIGHT: Can I ask you one question? MR. SEXAUER: Yes. MR. WRIGHT: Are we the only witnesses? MR. SEXAUER: Well, I was just going to ask the audience. At this point, you are the only speakers who have signed up to speak. Are there any other speakers in the audience who would like to address the group? MR. WRIGHT: I just think the record should show that this hearing was requested by the NSSGA, and so it is a little surprising that they didn't appear to testify. But of course that is their right. Thank you. MR. SEXAUER: And what we are going to do now is that if no one else is asking to come up to speak at this point, we will take a break until about eleven o'clock, at which point, we will reconvene and see if there are additional speakers. If there are none at that point, we will adjourn. So we will now go off the record until eleven o'clock. (Whereupon, a short recess was taken.) MR. SEXAUER: Okay. We will go back on the record now. We do have one more speaker that is going to speak, but before that speaker comes up, I would just like to as an administrative matter, I would like to mention that OSHA has a list serve. And what this list serve contains with respect to rulemaking is anytime we publish a rulemaking document, we automatically send a notice out to everybody on the list serve that we publish a document, and give a few sentences about what that document contains. And we also have a reference in there where we mention that it will be on MSHA's webpage as a reminder. So this alerts you to every time there is a new document coming from our agency and the Federal Register, and it also refers you to a place where you can view it electronically on our webpage. If you will, you can locate our list serve and subscribe to it. Of course, there is no charge, and just a matter of a few simple clicks. But if you go to the MSHA home page at www.msha.gov, on the left side of the page, you will find Quick Links. And if you will click on the mailing list under Quick Links, and that will take you to a page called MSHA's Mailing List and Subscription Page. And there is just a few simple instructions there for getting on the list serve. It is very easy to do, and you will get a comprehensive reference of any time that we publish a document. Okay. Having said that, let's move on. Gene Elwell, from AMC Testing, Inc. MR. ELWELL: I want to thank you very much for allowing me to speak. I wasn't scheduled to come here to talk. My name is Gene Elwell from AMC Testing, and I am the president and founder of the company. MR. SEXAUER: And that is Gene Elwell? MR. ELWELL: Yes. G-E-N-E, E-L-W-E-L-L. MR. SEXAUER: Thank you. MR. ELWELL: I am from American Medical Compliance Testing, Inc. And again from my company, which we have 30 offices in eight States, and our corporate office is in New Jersey, our feelings and prayers go out to the coal miners in West Virginia. My partner, his wife is actually from that area. She knows that church, and it has been some years ago, but she is familiar with what takes place in a coal mine family. And I just wanted to say something real quick about who we are. We are a medical testing company. I started out as a boilermaker. I am a union construction worker, power plants and refineries with nuclear power for over 25 years. I started this company 10 years ago based on OSHA safety and training, and pulmonary function, and respiratory fits. We also handle drug and alcohol testing, not only for the DOT, but for the airlines, and trucking, and also for the construction. The companies that I work for are my clients, and so it was a nice fit when I started the company. On that, the reason for why I wanted to say something, is that I am not familiar with the coal mines, and I am not familiar with -- and god bless every one of them -- those that go into that industry and work. It takes a brave person to do that. But on the OSHA side, the pulmonary testing for years, and being involved in construction, and working in the Cofab boilers, or individual ones called Gray Lung, and not the Life Lung; and respirators for the first 20 years of the industry, from '70 to '90, it wasn't the in-thing to do, to wear a respirator. And that was one of the problems. Most of the people that I started out with, about 40 of them in 1970, there are only eight of us alive. Most of them are due to asbestosis, lung disease, and other industry accidents on job sites. OSHA has been a major part of helping workers survive the accidents. To be at the job site every day, and be able to go home to their families, and wearing the respirator to protect them is important. About 15 years ago, when I took my first training for OSHA, the OSHA trainers for a group that we were there said that anybody who has been in this business for 20 years and who are over the age of 40, we can't help you. You are already done. It is the ones coming up behind you, and they are the ones that we have to protect, and they are the ones that we have to make sure that they wear their respirators, and their hard hats, and their personal protective equipment. It is for those protections that are there now, and that medical screenings can continue, and with the respirator fits, and in the industry, I test these individuals that I worked with for 20 some years. And it is sad to see that those who can't pass that pulmonary test to wear that respirator can't go to work. If the contractor or the client can't provide them with another -- like a transfer, and our industry is just outside of that hot zone area -- we see that with maybe a hundred workers, that anywhere from three to five cannot go to work because of their lung problems over the years. And not wearing the respirator because it was not mandatory, and it was not pushed as hard as it is today. It is a godsend for the workers in the future and the workers now that they do follow these rules, and abide by them. But the companies have to make sure that they provide this equipment and everything else to those workers. And again, one of the things that I wanted to talk about was the fact that fresh air supplies, and not negative air, but fresh air supply would allow the other workers that can't pass a job, and they can go to work with that fresh air supply, and it is important. Some companies will put the money up for that, and provide a job for these workers. Outside of that, they are out of the business, unless they can find something in their own industry that they don't have to be exposed to the air, the contaminated air. So that is the construction side. OSHA has been growing and has been very important to the industry. A lot more people are surviving accidents, and the safety has increased, and there has been a real improvement. Anything from other than improving on the levels would be a sad situation. It should not be made worse; it should be made better. So, again, just wanted to speak and give you an opportunity from the construction end, my part of it, being in construction, and somebody that has pleural thickening, which is the beginning of the asbestosis, and living in that environment. But now I test the workers to make sure that they don't get that situation in their life. Other than that, that is what I had to say, and I appreciate your time. If there are any questions, I would be happy to answer them. MR. PETRIE: Have you found any workers that would be unable to wear an air supply respirator or a powered air purifying respirator? MR. ELWELL: As long as they were clean-shaven, no, sir. They can go to work and they can work fine. Nobody would be restricted from going to work and having that air supply. It is highly recommended, and the equipment is out there. So it is available, and it is on the shelf. MR. PETRIE: Thank you very much. MR. SEXAUER: If there are no other questions, thank you very much. MR. ELWELL: Thank you. MR. SEXAUER: Is there anyone in the audience that would care to address the group? (No response.) MR. SEXAUER: Okay. Well, there being nobody else, we will adjourn. Thank you very much. (Whereupon, at 11:08 a.m., the hearing in the above-entitled matter was concluded.) REPORTER'S CERTIFICATE DOCKET NO.: N/A CASE TITLE: Diesel Particulate Exposure HEARING DATE: January 5, 2006 LOCATION: Arlington, Virginia I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the Department of Labor. Date: January 5, 2006 Paul S. Intravia Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018 ?? TRANSCRIPT OF PROCEEDINGS HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 hrc@concentric.net 53 Heritage Reporting Corporation (202) 628-4888 54 Heritage Reporting Corporation (202) 628-4888