______________________________________ ) MINE SAFETY AND HEALTH ADMINISTRATION ) 30 CFR PARTS 48 AND 75 ) EMERGENCY EVACUATIONS; EMERGENCY ) TEMPORARY STANDARDS ) ______________________________________) Pages: 1 through 58 Place: South Charleston, West Virginia Date: February 11, 2003 DEPARTMENT OF LABOR ______________________________________ ) MINE SAFETY AND HEALTH ADMINISTRATION ) 30 CFR PARTS 48 AND 75 ) EMERGENCY EVACUATIONS; EMERGENCY ) TEMPORARY STANDARDS ) ______________________________________) Transcript of proceedings of Public Hearing in the above-styled matter, on the 11th day of February, 2003, commencing at 9:00 a.m. and concluding at 11:45 a.m., at the India Center, 800 Green Road, South Charleston, Kanawha County, West Virginia, pursuant to notice to all interested parties. BEFORE: MARVIN NICHOLS, JR. CARL LUNDGREN JENNIFER HONOR WILLIAM CROCCO WILLIAM A. BAUGHMAN I N D E X Speakers: Gary Trout, UMWA J. R. Patsey, UMWA Mart Lane, UMWA William Bolts Willis, UMWA, President, Local 8843 James Hancock, General Manager, Riverton Coal Company Rick Glover, UMWA Dwight Siemiaccko, UMWA, Cannelton Industries Max Kennedy, UMWA, International Representative P R O C E E D I N G S (11:45 a.m) DIRECTOR NICHOLS: Good morning, everybody. My name is Marvin Nichols. I'm the Director of the Office of Standards, Regulations and Variances for MSHA. I want to welcome all of you here today. On the behalf of Dave Lauriski, our Assistant Secretary for Mine, Safety and Health, I'll be the moderator for today's meeting. I have some more of my colleagues here. Bill Baughman is a Reg Specialist with my office in Arlington. He's back at the sign-in desk. If you want to speak and haven't signed in, we'd like for you to do that. We want to keep a record of all the speakers. At the end of the table is Carl Lundgren. Carl is an economist on my staff. Next to me is Jennifer Honor. She's with the Solicitor's Office. She's our in-house attorney and to my left is Bill Crocco. Bill is the Manager of the Accident Investigations Program in Arlington, Virginia, with Coal Mine Safety and Health. This is the third of four public meetings we have scheduled. We had two meetings last week. One in Lexington, Kentucky, and one in Grand Junction, Colorado, and on Thursday, we'll have the fourth and final meeting in Pittsburgh, Pennsylvania. The purpose of these hearings is to obtain comments from interested members of the public on the proposed rule for emergency evacuation. We'll use these comments to determine the best way to assure that underground coal miners will be protected during mine emergencies. The initial announcement of the four rule making hearings were published in the Federal Register on December 12th, 2002, and there's copies of that Federal Register in the back at the sign-in table if you want one. The proposed rule that is the subject of these four hearings is identical to the Emergency Temporary Standard published from December 12, 2002. The proposed rule will establish requirements for mine evacuation in response to mine fires, explosions and gas and water inundations emergencies. Let me give you some background which led us here today. Under Section 101(b) of the Federal Mine Safety & Health Act of 1977 the Secretary had the authority to issue an emergency temporary standard if it is determined that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and that such emergency standard is necessary to protect miners from such danger. On December the 12th, 2002, MSHA issued an emergency temporary standard in response to the grave dangers that the miners are exposed to during mine fire, explosions and gas and water inundation emergency. The recent death of 14 miners in two underground coal mines punctuated the need for MSHA to address proper training and mine emergency evacuation procedures. The emergency temporary standard was effective immediately upon publication and is effective until superseded. Under the Mine Act, the Secretary shall have nine months from the day of publication of the emergency standard promulgated from the mandatory health and safety standards which will supersede the emergency temporary standard. By law the emergency temporary standard also operates under the proposed rule. That proposed rule is the subject of this rule making. We're required to have the final rule in place by early September. We're here today, as I said, to receive comments but we're also interested in getting your impressions on how this rule has worked since it was put in place last December the 12th. The major provisions of the proposed rule would require: 1) that operators of underground coal mines will designate for each shift that miners are working underground a responsible person in attendance at the mine to take charge when mine fires, explosions and gas and water inundation emergencies. 2) the designated responsible person must have current knowledge of various mine systems that protect the health and safety of miners. 3) the responsible person must initiate and conduct an immediate mine evacuation where there is an emergency which present an imminent danger to miners due to fires, explosions and gas or water inundation. 4) only properly trained and equipped persons who are necessary to respond to mine emergencies may remain underground. 5) the existing requirements for a program of instruction for fire fighting and evacuation would be expanded to address not only fires but also explosions and gas and water inundation emergencies. 6) part 48 training requirements would be revised to reflect that the annual safety training includes the review of mine fires, explosions, gas and water inundation emergency evacuation and fire fighting plans in effect. So far MSHA has received several comments on the proposed rule. We have received several comments prior to starting the public hearings and have received several comments during the previous two meetings. One commentor recommended that we expand coverage of the rule to include metal and nonmetal mines. Another commentor supported portions of the rules but felt that some portions were ambiguous and allowed MSHA too much leeway to second guess operator's decisions on whether to evacuate. Finally, the commentor felt that both rules fosters the idea that the first step in mine emergencies is always to evacuate miners. The remaining two commentors offered serious suggestions on how to improve the proposed rule. We posted all of the comments on the web page at www.MSHA.gov and we'll also post the transcripts of these public meetings as quick as we get them back from the court reporter. The issue surrounding the safety and health of miners are important to MSHA. We'll use the information provided by you and also comments to help decide on how best to proceed through this rule making. These four hearings will give mine operators, miners and their representatives another interesting part and an opportunity to present their views on the proposed rule. The format of this public hearing will be as follows: the formal rules of evidence will not apply and the hearing will be conducted in an informal manner. Those of you who have signed up to speak today will make your presentations first. After all scheduled speakers are finished, others can request to speak. When the last speaker is finished, we will conclude the public meeting. If you wish to present any written statements or information today, please clearly identify your material. When you give it to me, I will identify the material by the title as submitted. You may also submit comments following the meeting. Please submit them to MSHA by February the 28th, 2003, which is the close of the post hearing comment period. Comments may be submitted to MSHA by electronic mail at comments@MSHA.gov or by fax at 202-693-9441 or by regular mail or hand delivery to MSHA, Office of Standards, Regulations and Variances, 1100 Wilson Boulevard, Room 2352, Arlington, Virginia. A transcript of this public hearing will be available upon request. If you want a personal copy of the meeting transcript, please make arrangements with the court reporter or you may view it on MSHA's website. As I said, it will be posted as quick as possible after the meeting. We'll begin with the persons who have requested to speak and when you come up to present your comments, please state your name and spell it and give us who you are affiliated with. So with that, we will start with Gary Trout with the UMWA. MR. TROUT: Good morning, my name is Gary Trout, T-r-o-u-t. First I'd like to say that the temporary emergency standard is something that we needed and have needed it for a long time. I'm real pleased with them. There are a few areas I think that it should include, and I would like to address this and have a few comments on the variances. The first comment that I would like to comment on is the communication systems. I think the rule does not address those in depth enough and, you know, personally as I've traveled throughout the United States, Jim Walters and 84 mine, the Leftwich (sp) mine in the State of West Virginia, and they seem to have problems with some of the vehicles having proper communications on them. I think that, you know, you need to address that in the standard so that we can quickly and efficiently evacuate miners if there happens to be an emergency, and I think with the technology that you have today with some initiative we can get better communications throughout the mines and also because we all know or most of everybody here has ever been miners or been in the mines for a long period of time, we have various folks scattered throughout the mines usually doing the fire boss work or belt work and things of that nature and those folks also need some type of communication and with the technology today, with two- way radio systems and some other things, but also I think if the initiative is put out there, I think we can develop some system that would save miners lives. The other thing that I've run into I'd like to talk about just for a moment and that's the emergency transportation. Right now here in West Virginia we don't face that very often, because we have a standard here where it requires an emergency vehicle be on the section at all times, and therefore we can effectively get our folks off those active sections and get them to the outside real quick. I think that's something that needs to be nationwide. There should be an emergency vehicle on every section; therefore we could get those folks out. We've run into a couple of problems where it took like 15 or 20 minutes in order to get transportation to the section and effectively evacuate the section in the mines up there. So I think, you know, it will really help. It would help a lot. On the responsible person I've got some personal feelings with that. I think that's a good thing. I think we need a responsible person, but I think through the emergency standard we should lay down the groundwork for where he needs to be and at all times, you know, on the emergency standard each shift that person changes, everybody is supposed to be notified, but the problem I have is about the designated person's duties I find that it happens to be the mine foreman who designates the person and he may be inside taking care of some other work looking at a belt. He may have some problems on it or something like that. He would be real hard to get a hold of and then during an emergency, I think most people and really we can't fault them for it, but they want to go take a look at it firsthand, and I think that's a no-no, because if that man is going to be involved, he's going to be the responsible person, he's going to be directing the evacuation, he needs to be stationed on the surface at all times, not underground or somewhere else. You know, here in West Virginia, at most of our mines, especially the larger ones, we've got dispatchers. He knows where each and every person is. He knows where each and every vehicle is in that mines, so I think effectively during the evacuation that, you know, the responsible place to be would probably be right there in the dispatcher's shanty and set up a command center as we do at all these disasters and run the operation from there, and that way, you know, I think the individuals could get outside much, much quicker and we would be more efficient in evacuating miners and also with the drills, as I read through there, I think that's a real good thing. I think we need those drills. I think we need to simulate those drills and actually do a simulated mine emergency and do an actual evacuation. I don't think we can have enough training, because, you know, we put on classes at the academy at least two every year, and we do a simulated mine emergency and as we all know, cause most everybody here has been involved in some emergency, it's really hectic when it comes right down to it; and I think the more training you have the better off you'll be when the actual circumstances arise and with that, that's all I have. MR. NICHOLS: Do you have anything? MR. CROCCO: Let me ask a question. MR. TROUT: Okay. MR. CROCCO: On the location of the responsible person, just say it's the mine foreman for example, if he were required to remain on the surface and couldn't go underground, do you see any safety disadvantages in not allowing him to travel throughout the mine and observe conditions throughout? MR. TROUT: Bill, I think that -- is it all right if I call you Bill? MR. CROCCO: That's fine. MR. TROUT: But I think with the superintendent, if he's the designated person, I think he needs to delegate some of those duties. He needs to be on the surface as we're trained in mine rescue and he needs to stay there, because if he's underground and something happens to him, it would be utter chaos out here trying to evacuate the miners. So that situation needs to be evaluated. He needs to delegate that duty to his assistant or whoever he has confidence in to do that and then him remain on the surface. Personally I think it's an advantage, a big advantage if he's on the surface at all times in my opinion. If he thinks he has that need, he just needs to delegate it, some authority to someone under him to check it out, because if he would happen to be under there and get trapped or something would happen, then he can't efficiently run a rescue operation or an evacuation if he's underground doing something else, because as we all well know, when you've got an emergency situation, you have to concentrate on the situation that's needed not on four or five other things. MR. CROCCO: Okay. DIRECTOR NICHOLS: Okay, you mentioned that when you start talking about communication and transportation, that the rule didn't go far enough and when we issued the emergency temporary standard, we're trying to do three things. First, you had the evidence of 14 miners being killed after the initial explosion in these mines. So the idea was to designate this responsible person to manage the emergency when one occurred to get the people out of the mine. The other one was to -- we had assumed I think all along with mine evacuation plans that explosions was a given, but we wanted to update the current mine emergency plan to include explosions, gas and water inundation, and then be sure the miners understood the new requirement and then incorporate training in Part 48. Now that's what the emergency temporary standard dealt with and as I said in my opening statement, that it also serves the proposed ruling. Now one thing the agency will have to decide is are some of these other issues beyond the scope of this current rule making. I think they're all good comments and may be good for rule making, but whether if fits in this one or not, these lawyers are pretty tough on me about not saying anything up front, when you do a public rule, they want to plug it in a final one. So that's something that came up at both the previous hearings, both transportation and communication. So that's what we'll have to wrestle with when we finish the final one. Thank you, Gary. The next presenter will be J.R. Patsey, UMWA. MR. PATSEY: J.R. Patsey, P-a-t-s-e-y. I'd like to thank you-all for the opportunity to allow us to come here today to have a little bit of input on this. Getting to the responsible person there, I'm just like Gary there, you know, at times, you know, whoever you designate the responsible person, he's going to be traveling throughout other parts of the mines and with him being the responsible person, he could be inby an explosion or, you know, a fall or anything and I think you ought to look in seeing putting -- in case he would happen to be in that inby there -- to put a pager or some type of other communication system where we could get a hold of him if he ain't going to be required to stay on the surface at all times, and we've got a lot of people at our mines -- it's a big mines -- got a lot of fire bosses, pumpers that's way away from any phones whatsoever for three or four hours a day, and, you know, we need to come up with some type of two-way system, a pager system, or something in case we would have an explosion or fatality, something to get a hold of men where they may have a chance to get out of there and, you know, I think we need to do more hands-on training on evacuation at all mines, not just the big mines but the little mines, too. You know, at our mines -- I'm saying that there's a lot better communication at large mines than small mines, and when you get to talk about the people, who is going to be responding to the fire, you know, are you referring to mine rescue people who have been trained for that or are you referring to somebody whose annual training they have in fire fighting, you know, where you go to the firefighters. I think we need to look at that, and another thing from reading a little bit about this and talking to other people who was down there on the inspection, you know, I think the inspectors send people down there, and they didn't come back to follow up on a lot of the citations that was wrote there. I think if they had, you wouldn't had the fatalities we have here today, and as far as, you know, our communication person at the mines there, you know, we've got a dispatcher. In the State of West Virginia the law requires it and at anytime, you know, when he calls for the road, that man is going to know -- the dispatcher pretty well knows the area that individual is -- had went to. At times we will have 25 different rides on one shift going throughout different parts of the mines, and then, you know, you've got some people, like I said before, you've got people being on the beltlines, you may have people over in the returns, and we need somebody that -- put the pager, two-way communication or something to get a hold of them people in case we would have an emergency. I thank you for your time and that's all I've got. DIRECTOR NICHOLS: Thanks, J.R. Do you have anything? MR. CROCCO: No. DIRECTOR NICHOLS: Thank you. We'll call Mart Lane with the UMWA. MR. LANE: My name is Mart Lane. I'm with the UMWA. You spell it M-a-r-t L-a-n-e. I guess I'm probably one of those dispatchers they've talked about here. So I would like to talk a little bit about that. It's a position that I have in a large mines. The way it's been handled at our mines since, I think you said December 12th, is we've basically -- we have two portals also. We have a slope and a shaft, and the biggest portion of our people portal through a shaft. The other slope is for supplies mostly. My place is on the supply side of the mines, the slope. They actually post beside of the shaft on that side to tell these people each day what the responsible person is. I'm part of that process already by telling me that if that responsible person changes, then I'm to notify each mantrip that leaves the bottom that the responsible person has changed. I think the biggest problem with this standard right now, or the rule, is that when you look at the responsible person in the mining industry and this is my experience with where I'm working, is you have a shift foreman, mine foreman, whatever his title might be, that's pretty much in the industry, in my experience of 30 some years in the mining industry, is already carrying a job that's overloaded and stressed out to the max in the position that he's holding. Then he gets this position that he's required to fulfill, too, and he has other duties and he's not going to neglect those duties because if he does, he's going to get his butt in the ringer, plain and simple, because he's required to be a belt person or a track supervisor in whatever conditions it is, and at times he's going to be gone and you're not going to be able to get a hold of him. We've never had what we said is we had a fatality at our operations. We've never had, I guess what you would call a disaster, but there's been times in my experience at that mine for 30 some years that you can't get a hold of the shift foreman for periods of time just for the fact he has other duties. I think it falls in line with what I've heard prior to me coming up here that, you know, there's some way there needs to be able to communicate with that person or it needs to be a surface person who's going to be there or you're not going to be able to get a hold of this person and, you know, I think in maybe the Alabama, in that situation 50 minutes time elapsed from the explosion one to explosion two, something of that nature. There's times that those people are going to be gone and you can't get a hold of them especially if they're in the airways where there are no phones that you can access them by, and then if they change, delegate that work as Mr. Trout said there prior to me coming up to another person after the shift has started, then it's -- and I'm going to be a big part of that process, because I'm going to be left to get a hold of maybe a 150 people that's in that mines and you're going to change your horses in the middle of the stream or something. I guess that's pretty much what I have to say about it. I just like to see that person, if you're going to have one, it needs to be somebody that's designated you can get a hold of or have some way of communicating. MR. CROCCO: Are you saying that a secondary communication system would be needed for the responsible person? MR. LANE: If you're going to leave it with that mine foreman or shift foreman, who is going to be continually going underground. He may go in and walk belts and get on the belt and walk a belt for an hour and when you're talking about a large operation that covers miles of underground territory, I mean you could foreseeably not get a hold of him for an hour and I think he needs to. MR. CROCCO: At your mine when the mine foreman travels underground, does he make an attempt to let you know where he is? MR. LANE: That's correct. I know where he is. I know where everybody is in the mines all the time pretty much so. MR. CROCCO: Thank you. DIRECTOR NICHOLS: When we developed the rule , the thinking primarily was that the thing missing here is somebody to make a decision to evacuate the mine, not to keep these people underground after you had the first explosion. I don't know that we had anything in the record of the history that there was a problem of locating all the miners. I mean it seemed like the overriding thing was for somebody to be able to make that decision on the spot and not have to call around to try to find upper management or somebody like that that have the confidence to err on the side of safety; just go ahead and get people out and regroup and let's take a look at what we got, rather than to run in some place unequipped and try to deal with an emergency. I don't know that we thought the -- finding the miners is a problem. Did you? MR. CROCCO: Not anything in the records. DIRECTOR NICHOLS: It was getting that decision made to evacuate the mine. MR. LANE: Well, I guess maybe what I'm trying to say and probably didn't make myself clear, you know, just say John Doe was my shift foreman. You know, he's the responsible person and say he is a belt person. Well, he may go down the shaft and he calls me and says, well, I'm going to be on haulage number one belt, walking it from point A to point B, which may be a 40 minute trip without communication. So, you know, the only other choice I have -- I've did this before many times when we had problems that I wanted to get an answer was the only other choice you have then to get a hold of him is you start someone up the track popping through stopping doors maybe every 500 feet going into the belt entry to try to intercept him at this point to get him to a phone. DIRECTOR NICHOLS: The other thing we didn't want to set up was something that led people to believe if you can't evacuate the mine unless this responsible person made the call. MR. LANE: I would do that.I mean there's no doubt in my mind, I've did it before, the times when I couldn't get a hold of people is if it gets right down, you know, I may assume I'm going to get busted for it later if I did the wrong thing, but at times I have made that decision to get people outby in a situation where it could become hazardous. DIRECTOR NICHOLS: Okay, thanks, Mart. MR. LANE: Thank you. DIRECTOR NICHOLS: The next presenter will be Bolts Willis from the UMWA. MR. WILLIS: My name is William, W-i-l-l-i-a-m, Bolts, B-o-l-t-s, Willis, W-i-l-l-i-s. My address is Box 126, Pratt, P-r-a-t-t, West Virginia 25162. I'm President of Local Union 8843, Cannelton, West Virginia. I'm presently working for the Cannelton Industries, Incorporated in Cannelton, West Virginia. I started working underground in 1969 at the No. 8 mine and worked at several other mines for the Cannelton Industries, including No. 105, 115, 125, No. 10 as well as the No. 8 mine and our present mine, Shardick or Stockton mine, which is connected to our belt system to our No. 130 mine. During the past 33 plus years of mining experience, I've had the opportunity to be part of the investigations of mine fires, inundations, including water, gas, low oxygen and spontaneous combustion fires as well as gas, coal dust and belt fires. Just to give a few examples while working as a full-time employee for the United Mine Workers of America and for the State of West Virginia, I've been exposed to many of these types of situations included in this emergency temporary standard the reason we're here today. Some of the experiences I've had include fires at No. 105 mine at Cannelton, 115 mine at Cannelton and No. 8 mine at Cannelton, as well as water and gas inundations at the No. 8 mine and water inundation at the Stockton mine approximately two years ago, the Ferrell No. 17 mine explosion in 1980, Top Mast coal mines and coal dust explosion in Kentucky, the McClure explosion in McClure, Virginia, Marianna mine fire and the Greenwich Collieries mine explosion in Pennsylvania, inundations of gas and low oxygen problems at the Dry Branch mine in West Virginia, and spontaneous combustion mine fires at Cabin Creek, West Virginia, a coal outburst at Imperial Collieries at Paint Creek, West Virginia, mine fires and explosion at the VP operations in Virginia, also the largest disaster in the past 30 years at the Welberg mine in Orangeville, Utah, and the explosion at the Fire Creek mine in West Virginia during the start of the Gulf War. As Assistant Commissioner of the Department of Energy, I've also worked with the State of West Virginia. I said all this to begin as myself as a member of the UMWA to agree with most of what is included in this emergency rule for which we're here. With this I will add some suggestions to what is needed to prevent or lessen such events such as Que Creek and the JWR No. 5 in Alabama where I had been underground during my previous jobs while working in Alabama doing training classes, inspecting mines in Jim Walter Resources. I've inspected mines in many states including Virginia, New Mexico, Arizona, Utah, Colorado, Alabama, Pennsylvania, Ohio, Kentucky and West Virginia. First concerning the responsible person. At our two mines in Cannelton we have the dispatcher on duty at all times while miners are underground. Not only does this person know the track system, he also knows the ventilation system and where every miner is working at all times. At our mine on an average day, there is over 110 movements of miners on every shift. So you can see the importance of this person. The person who fills this part of the emergency rule should be the dispatcher as well as the state-assigned person by the mine management which is on each shift listed by the company. Second, communication is a must in my opinion. Several years ago I met with experts at the National Mine Health and Safety Academy to discuss our lack of dependable communications after a mine fire, explosion, inundation or an outburst. These people I met with were from the United States Navy and also the Marine Corps, but at that time used the term subsurface instead of underground communication. They informed me that at that time there was dependable wireless hand-held communications systems within the Armed Forces but to my knowledge, these dependable communications are still not part of the mining industry. I would highly recommend that MSHA do all it can so these type technologies can be obtained as soon as possible from the Armed Forces. Third, do what we are now doing at Cannelton Industry and have been doing for over one year. We use to do this while working for the State of West Virginia as I instituted the program in my previous job. This is how we approach emergency procedures such as fires, explosions, inundations or outbursts. Each year we conduct a smoke-filled training using chemical smoke to prepare the miners for what to do when they can't see while trying to escape or get to fresh air or unaware or go to an area away from rising water. This training using lifelines communication, fire fighting equipment, and escape procedures to areas that are safe, whether it be a safe harbor in case of flooding. In these drills miners are exposed to putting their SDSR's on while visibility is impaired. As a footnote, mine management and the UMWA members at our mine believe in this type of training. Our first goal in this training is to have all miners to be trained in an unplanned -- or prepared plan to notify other persons in the mine to what is taking place. Last year we trained almost every miner in both of our mines. This year our goal is to train everyone and it was our goal before this rule came out. Fourth, I agree with the necessary people who are trained to respond to mine emergencies. One of the biggest problems in waiting for mine rescue teams as we all well know there is a severe shortage in mine rescue teams throughout the United States, and we've also had problems where they respond in a timely manner or whether they respond at all. Even with this training in mind, our gas detection license needs improved and more of the current license to check for multiple gases are needed. Also advancement needs to be made in combination gas detectors that would tell us when the total gases are at dangerous levels, such as two gases being present at one time. One example is most people in the mining industry believe that methane explosion range is 5 to 15 percent, but when heated, the explosion range of methane is 3 to 20 percent. We need to add additional training to inform miners and as well as other people in the industry that explosability of all gases change as they are superheated as a result of a fire. Fifth, lighting is crucial in an emergency not just for the scene but common in individual that they have been affected by an emergency. We all agree that what is missing now is available to the miners under certain cap lamps where they can be called by characters on their cap lamp and notify whenever there is an emergency and they may be in outlying areas. Of course, with the advancement of technologies that the Armed Forces has, they could have a hand-held radio no matter where they were in the mine in my opinion with what I've been told. Sixth, during outbursts since many miners have not been exposed to that type of occurrence, a training film needs to be produced by MSHA as well as cutting into old works where inundations of gas or low oxygen occurs. This video can show the miners the signs, such as soft coal cutting when it has been hard to cut, steam coming from the mine face far ahead of the actual cutting into the old works or where an outburst may occur. Speaking just a little bit about outbursts, there's some things that need to be part of the training that are crucial in occurrence of outbursts, that three things usually exist, two especially is you have hard top and hard bottom conditions before an outburst can occur. Also in several of these, I've been part of the investigation, I think there's been eight, that you cut them in a "U" fashion as you're retreat mining and then while the miners are up in that "U", the top doesn't break and the bottom doesn't break, and the coals pillars can explode and some of them that I've seen they were so violent, that it would be just like this table, you've seen a magician take a tablecloth with the tableware on the table and jerk the tablecloth off and leave the glasses and plates on the table -- so somebody probably has seen this happened. During an outburst, one that I investigated, the outburst was so violent that it -- when it exploded, the ribs where the timbers were setting, it knocked the timbers out cutting the timbers up and then the way it was set down on top of the coal, you couldn't see the timbers and we saw that and we started digging around and found the timbers under the coal which they were sitting right on top just like the plates would be on the illustration that I gave. Seventh, in closing we need to train our miners in all situations including intake escapeway, which may not be or may be the best place to get out of the mine, but as in the situation which occurred at our mine where we had an inundation of water, the miners were in the intake escapeway. The water was up to their chest and two entries over the water was only ankle deep. So to have a backup plan is essential. My point being that we only train for one plan and it doesn't work, then a backup plan can be effected for escape. Also on page 76665, Section 75 1502 (c) is vague to say simulation of this type of training. What does simulation mean; to many that means now where they don't go to the extent that we at our company and union have done in exactly hooking up fire hoses, escaping from the -- walking the escapeways out of the section, actually putting out fires -- simulated fires with water, using rock dust, donning self-contained self-rescuers. Simulation to me there means where we show a card in order to be in a classroom, this is how it works. When this type of training occurred, it's not where it needs to be we think. Also on page 112 post disaster help safety improvements such as JWR No. 5 mine report, we agree with all 18 recommendations listed in that report. If you have any questions and by the way, as well as myself as part of the Safety Committee is Roger Slaytor and Dwight Siemiaccko. DIRECTOR NICHOLS: Okay, we've got that report in the record. MR. WILLIS: If you need any assistance marketing or producing these films, use any of our experience in our company, I am sure anybody would be glad to be part of that. DIRECTOR NICHOLS: Okay, thank you. When did that inundation occur you spoke of? MR. WILLIS: Approximately two years ago, between two and three years ago. We cut into an old works and the water inundated part of the section and some of the miners went to the intake, which they've been trained to do, which is most of the time which is what you would do, but that's where the water -- the lay of the mine was downdip and that is where most of the water went. Two entries over the water was ankle deep. So it's not uncommon in the mining industry as you well know to cut into old works, where you really are not expecting to do that and some things I'm sure discussed and I've read about Que Creek is where you have up-to-date maps. Of course, we totally agree with that. Drilling at all times possible in the site just like the Code says would definitely prevent occurrences such as that. DIRECTOR NICHOLS: Okay, Bill, thanks. The next presenter will be I believe it's James Hancock with Riverton Coal. Did I get the last name right? MR. HANCOCK: That is fine. My name is James Hancock. I'm with Riverton Coal. We operate two deep mines in Fayette County. I'm the general manager on the property. My concern is the responsible person. I'd like to comment on who should be in charge. I don't think no one would be more qualified than the mine foreman and shift foreman. As we all know, and I've section bossed as shift foreman but everyone is not qualified to handle pressure. When the pressure comes on you, you've got to be able to handle it. I mean I don't think the dispatcher should be the one in charge in case of an explosion. I think an inundation -- I think it should be a person that's hands-on. I think it needs to be a person that is familiar with the mine. I think it needs to be a person that knows the elevations of the mine, ventilation controls. I think it needs to be a person that travels the airways weekly because, you know, I think the dispatcher could assist him in telling him where everybody is at, but I don't think -- just like myself, I'm the general manager, but I can't run coal at this mines outside. I count on the people underground to the job, and I can say one thing and it be the wrong thing. They are there. They see and they know what's happening. As far as the communication system, I tried a communication system called the PEDs system. What this consists of is it pages on your cap light. It's hooked to your battery. I put the system in in '97 and it worked for about a year and I had difficulty keeping the system up. If they could perfect this system, it would be great. What you could do from the computer outside, you just say, "Call me outside," and it may be a beltman and you punch it in and I'd say in two minutes his light would start flashing. It would come on his light. Right now the system is not operating. We've had so much trouble trying to keep the lights up. We bought this system from a gentleman out of Australia and if you had someone on the property familiar with the system, and you'd have someone to work on it all the time. We just couldn't keep the system going. When the system would fail, your cap light would just blink all the time. So we just had to do away with the system. It's a great system but if somebody could perfect the system. We went to it because we've got a lot of beltlines. We got ten miles of beltline, and that's one reason we went to it so we could get a hold of our people. So it worked like I say a year and then after it failed. These mines, two mines that I operate follow the new rules and regulations and I'm all for having somebody in charge. We run safe operations. We won the State's Safety Award two years in a row, but like I say, a qualified person needs to be someone that's familiar with the mines and hands on, because I can't run that mines underground outside calling underground telling these production foremen what to do. Thank you. DIRECTOR NICHOLS: There's some other companies using those PEDs system. Have you checked with anybody else? MR. HANCOCK: One of our sister companies Rock Springs -- DIRECTOR NICHOLS: Yes. MR. HANCOCK: -- they had some trouble too with their system. MR. CROCCO: What kind of trouble did you have in that mine; would it be receivers on the cap lamps? MR. HANCOCK: On the cap lamps. All the receivers on the cap lamps. I mean if we would bump it, they would go out. What you do you want to you run a loop, about a 10,000 foot loop in a big radius, and you can be in a return, you could be -- matter of fact, I could be at the plant and have a cap light and they could send me a signal in the plant. It's a great system, but it takes a lot of upkeep. I would call people. It might be two or three weeks before they come to fix it. Finally, I had so many of them to fail, that we had to go away from them. MR. CROCCO: Did you have one of those for every miner or just certain -- MR. HANCOCK: No. My section foreman had one. My beltman had one. My supply crew had one. The reason being I always wanted to know where the supply crew was at. If I called, I needed them, I could just PED them. They call me outside. All my shift foremen, my chief electricians had them. We had a total of about 20 of them, but like I say, they worked fine but they're so hard to keep up. It's a great system if you can get them to work. DIRECTOR NICHOLS: What's the most miners you have underground on any particular shift, Jim? MR. HANCOCK: Forty. DIRECTOR NICHOLS: Forty? MR. HANCOCK: Forty on the day and 40 on the evening. MR. CROCCO:The responsible person you mentioned that the mine foreman would be or a shift foreman would be in the best position to fill that function. Do you have an opinion on whether that person should be required to remain on the surface or do you see some advantages to allowing him to travel throughout the mine? Do you have an opinion on that? MR. HANCOCK: Well, the mine foreman, you know, his duties -- the mine foreman has always been the one responsible for everything and I'm taking his duties -- I feel like I'm taking his duties away from him. I've been a mine foreman before and I feel like I was responsible for everything that went on underground and to take the duty from the mine foreman and give it to like a dispatcher -- like I say, everyone can't be an industrial foreman or a mine foreman because a lot of people can't stand pressure. When something happens, you know, they could just lose it. So, you know, my thinking is the person should be a qualified person that deals with situations every day where he has to make a decision, not for somebody just right off the bat to have to make a decision. I don't think it would work like that. The mine foreman he's got shift foremen. The reason why they are shift foremen is to make a decision when he's not there; that's the way the coal industry has been since I've been in the coal business. So why should we change it? DIRECTOR NICHOLS: Okay, James, I forgot to mention here in my opening statement that if you want to leave any of your notes or written material with us, feel free to do that. I think we've probably captured all the comments with the court reporter. If you want to leave something, why bring it up. Okay, thank you. The next presenter will be Rick Glover with the UMWA. MR. GLOVER: My name is Rick, R-i-c-k, Glover, G-l-o- v-e-r. I think most things have been already said today. I would like to make a few comments which probably basically is the same thing. First of all, I want to thank you and your team there for coming down to give us an opportunity. I think we've got to ask ourselves what stimulated your presence here today, and I think it's evident that your presence here is because we've lost 14 plus miners under situations which you-all have tried to address, and that would be through the emergency reg that you felt it was necessary. As I review that and I try to think open minded as I was in your position, and I think you-all done some nice things here. I think that what has been failed is you haven't went far enough if you're serious about trying to evacuate miners in the event of an emergency or if you're trying to determine whether you should evacuate miners. We can talk about a responsible person, and I agree with what a lot of the comments that have been said is one thing for sure it has to be a qualified, trained person. Now we can say -- we can have one of the most qualified trained person that's available within this industry, and I refer this to the training I had at the Academy and also my experiences that I have also had at the mine sites where we have had disasters, and for the purpose of the record, I worked 13 years underground and I've been an employee with the United Mine Workers for 18 years in the health and safety department. So I also have quite a bit of experience unfortunately with disasters myself. The most important thing that I see were three elements that I see if we want to achieve this is one is time; two is transportation; three is communications, and I think if you leave either one of those elements out, don't worry about the training because the training is not that important and I'm not taking anything away from the training and who the responsible person is, and as an example that I'll use, it doesn't matter where that mine foreman is or that responsible person if he's underground. If you get a call that you have an emergency and he's 45 minutes away from the scene of where the accident is and you take another 30 minutes before you get a hold of him, you're an hour and 15 minutes into a disaster of somebody making a decision what you should do and to me that's completely ridiculous, because if I was a dispatcher or if I was a person on the surface or if I was a section foreman or if I was a belt person, I would make that decision personally to be honest with you. Now if I'm on the surface as a dispatcher or whatever and I make that decision, I'll take my chances of being fired. The point I'm making is not to wait an hour and 15 minutes for somebody else to make that decision when somebody calls and tells we've had an explosion. We need help. Now if I can't get a hold of the rest of the crew when I'm talking about communications, then you got the situation, it's just like a mine fire, it develops that much larger. So transportation is just as important as communication or they start walking out. When you start them walking out whenever they may have rail equipment because if they don't have the rail equipment there, which we're fortunate here in West Virginia to have a law to protect us. Nationwide don't. So once you start moving these people to the surface, and I think that's what our objective is here, is you've got to get them out. You've got to evaluate to determine whether you leave people in there or whatever. It goes back to your training of the responsible person, but there have been some good comments about I think training -- I lean toward here -- all the comments have been good. I think Bolts is especially good as far as what the criteria should address as far as the training but getting back to that responsible person and the time element in evacuating the mines, we've got an opportunity here. We can look, well, what's the lawyers going to do when you get your final regs or whatever; to me it's immaterial if you're committed to this cause. We've got an opportunity, like I say, for instance here in West Virginia -- I know the rest of the nation isn't like West Virginia. We have very readily available mantrips that sits on the sections. We have dispatchers if you move more than one piece of equipment simultaneously which is an advantage over the rest of the nation, per se. You've got dispatchers who are highly qualified but you don't have to be extremely qualified until you get to the training where the decision making process of how you can handle the situation at the scene because you need somebody immediately start running the people outside, because you should be leaning toward safety. If you get a call that's some -- a good example, and I'll use Alabama, and I'll have to say I was in Alabama. I took care of the rescue -- while they were there -- but they was traveling and they had communication amongst each other and they were going back. That was all in that 50 minutes of elapsed time and then your gas built up and your ignition source, and then you have more people killed, but the point is you need to stop and address require transportation, a way of communicating, and I personally believe that every miner in that coal mine deserves communications, and I think the technology that you require will be improved and I think it will be available. I have seen in my lifetime, and one example a boy covered up for 12 hours right here in this valley cause they hadn't made a preshift. He was a beltman but if he would have had a pager or some means of communication, I think we can accept status quo as it is today or we could move beyond the technology that will exist if we require it when a man needs help, he can page to get the help. If there's an emergency, he deserves to be notified and say it's time for you to start outside. If we believe -- we've got an opportunity to get it done, but if we say we're dealing with a responsible person, whether it's going to be on the surface or whether it's going to be underground or whether a time element expires, and he can't do all his jobs because he's got to run a coal mines, then we're not putting our miners first. Fourteen people how many of them would have survived if we would have had something in motion. I would assume some of them still would have or we wouldn't be sitting here today, but I would encourage you to consider transportation. I encourage you to consider communications. They deserve it. As we watched the shuttle come apart, and which is two things amazing they could communicate a million miles away. We've watched the shuttle come in. It's been on TV ever since and they lost their lives, but there's one thing about it everyone of those 14 people that passed away, we could do something today to move this thing forward and their families hurt as much as what we watched on TV, these other families. With that I would encourage you to keep up anything this panel can do, given our comments to improve the communication, transportation and getting miners outside. I think -- I know the training is available at the Academy. I know we got some good mine managers that's has a lot of training and take that responsibility on. We've got to get these people this service. With that I thank you. DIRECTOR NICHOLS: Thank you, Ray. MR. GLOVER: Any questions? DIRECTOR NICHOLS: I don't think so. I think you've pretty well summarized the comments that we've gotten in the other hearings plus here today. MR. GLOVER: Okay. DIRECTOR NICHOLS: Would anyone else like to come up and speak? That's all the people we had signed up but feel free to come up and make a comment if you want to. MR. SIEMIACCKO: I'd like to. I wasn't planning to, but I think I might. DIRECTOR NICHOLS: Come on up. MR. SIEMIACCKO: My name is Dwight Siemiaccko, spelled D-w-i-g-h-t. Last name is ten letters long, S-i-e-m-i-a-c-c-k-o. I worked for Cannelton Industries. My present job status is a belt examiner. I've had mine rescue experience, mine fire experience. This proposed regulation is a good regulation. It's long overdue. It's needed, but one thing it falls short. Communication is the key. Anything that you do you have to communicate, and I think I heard Mr. Nichols from your panel that there's no problem finding a miner. I think that's an incomplete sentence. It's find that miner alive. Communication is the key and if we go to the flood inundation in Pennsylvania, one thing that stands out tremendously was quick communication saved the section of miners. When you compare it to Jim Walters in Alabama, which there's virtually a breakdown in communications and it's undeniable there's a breakdown in communication there and I think people lost their lives due to a breakdown in communication. When we get into your regulations and we have the word person and there's a tug of war here, you know, about being on the surface, being underground. I think it should be persons with one on the surface at all times. If that one person is in that disaster and is removed, now who is going to be the responsible person. How long will it take to get a responsible person? How much time have we lost deciding who is going to be the responsible person? You know, in an event of an emergency, time is of the essence, that's what saves lives, that's been proven, and you know, I hear comments that the -- because you're a mine foreman or a shift foreman that we're led to believe that just because you are a mine foreman or a shift foreman, that you're not going to break under pressure. Well, I think when you get into an emergency situation, you will be surprised who will fold and who will stand up to the plate in an emergency situation. A certificate holder does not qualify -- there's nothing that's there that says you are going to stand up under pressure. There's none. It's not there, and that's an issue that shouldn't even be entertained here, because a certificate holder has nothing to do with mentality and standing up under pressure. Training is essential but we're vague -- the regulations is vague. I mean is training going to be underground; is it going to be on the surface; are we going to have actual simulations where we have smoke or water or is there going be somebody standing up there with a placard saying you're walking into smoke now. You know, our training has to be in depth; like putting on a SDSR, we read in Alabama that miners had to do it in the dark because their cap lights were blowed off. That's not -- today we need actual situations that occur in disasters and be trained in those situations, the actual situation what we're faced with in emergencies. Personal emergency devices at our mines it takes at least four people to make a pre-shift exam and they're all isolated and that doesn't include people who walk the return airways practically every shift. They're in an isolated areas, and technology is there for these personal emergency devices. I think that MSHA should carefully consider that and make that a requirement that the people especially in the remote areas of the mines, because sometimes they're hours away and to communicate to those people, you know, we can have an explosion at ten o'clock in the morning and he may not be aware of it, he or she may not be aware of it until one o'clock, so, you know, here again, communication and time goes hand in hand. It's critical that these people be notified. In closing, I'd like to make a statement concerning MSHA. You know, years ago it was very common for a decal to be circulated that the coal miners put on the inside of his hat of what to do in case of an emergency and you had to barricade. Due to the safety committee at our mine site every miner now has that in his hat, but it was a surprise to the federal mine inspectors who inspect our mines that these have been issued, because they couldn't get a hold of them. They couldn't get these decals, and I believe that MSHA needs to back up a little bit and make sure these decals are circulated to the miners and this gives you the basis of what to do. How many times you pound on a roof, what do you listen for. That's all I have to say unless anybody has got any questions. DIRECTOR NICHOLS: Well, let me clarify something that I said earlier about communications. Communication is extremely important and so is transportation, but what I was saying was when we looked at when writing this standard, the records show there's a whole lot of safe evacuations. I mean combined fire evacuations have been on the books forever. What we wanted to do here is clarify explosions and inundations also but what was missing in the two accidents that we referenced in this standard was early decision making to evacuate the miners. Once you had the initial event to evacuate the miners and not send people in that were not equipped or trained. Now there have been a lot of mine emergencies, you know. It appears that if you get people out of the mine, there's no shortage of well-trained people to go back in and recover the miner, but what you need to do is, and we put that in the standard that we would expect some false alarms, that we would expect some people to evacuate, you know, to a false alarm, but once you get the people out of the mine, step back and evaluate the situation. I don't know that there's any problem in recent years of dealing with it. You can't run in without gas detection equipment and you know the likes of that and not get people hurt. So that's what we were trying to deal with. We've been told that all our life that communication and transportation that was already mentioned here along with good decision making is the key to a safe emergency. We assume a couple of those were going pretty good but the decision upfront was what was lacking in the two cases we referenced. So I don't want to downplay the importance of communication and transportation. MR. SIEMIACCKO: But doesn't MSHA sell yourself short when you require only one person, only one responsible person? Again, what are you going to do when if that mine foreman that is going to be underground is the responsible person and he is involved -- he is removed from the equation because he's dead. Now we're going to lose people at times. There's no question about it. First of all, who is next in line? Fortunately, at our mines we have two responsible persons per shift, and I tip my hat to mine management for doing that. It's a very smart move. It's an extremely smart move and I believe that we need to have more than one responsible person per shift. It could be a primary responsible person and a secondary, junior, senior, ever how you want to make it, but there needs to be more than one, and I would go as far to say that one of the two needs to be on the surface. DIRECTOR NICHOLS: Yes. MR. CROCCO: I see what you're saying but you've got to remember that you don't have to reach that responsible person before you can start a mine evacuation and to make that clear I think the last line in 1501 states that, you know, this rule is not -- does not mean that you have to wait until you reach the responsible person before you can initiate an evacuation. MR. SIEMIACCKO: Yeah, I agree. It's in the regulation. Anybody can initiate an evacuation. MR. CROCCO: Right. MR. SIEMIACCKO: It's the responsible person who directs, who has knowledge of ventilation, you know, and then can participate in moving the miner, but again, I go back to the point this responsible person, the single responsible person is removed due to this disaster, he's isolated from communication cause he's cut off from communication or he's dead, loses communication, now how much time are we going to lose deciding who is the next person in charge? It needs to be more than one. MR. CROCCO: You can have an alternate, like you say. MR. SIEMIACCKO: You can if the company so desires, but MSHA does not require that. At our mine site we do have that, and I think that was a great decision on mine management and I tip my hat to them, and I tip my hat to them today for doing that, but if it's not spelled out, how many companies are going to do it? DIRECTOR NICHOLS: Based on my 30 years of working with the agency, my guess is that a lot, if not most mine emergencies might be triggered by somebody other than the responsible person if you see a situation. Somebody mentioned Que Creek that the presence of mind that one miner had to make that call to those other nine miners to get people out of the mine; that probably happens a lot but getting back to the rule, I mean when we wrote the rule, the way this thing works the people that write the mine laws set it up was you give it your best shot when you recognize a grave danger. You try to put something in place to deal with that, but that's why we're having -- that's why we're required to do a proposed rule and final rule, that I think they probably anticipated comments and that's what these rule making hearings and comment periods is all about, and we'll have to decide in the end if the rule needs to go forward further or whether you can legally do that, but that's what we're here today for to hear these comments and try to fashion the best practical workable rule possible. It's one thing to have lot of stuff on paper. It's another thing if it works in reality; that's what we're trying to get. MR. SIEMIACCKO: Well, the proposed regulations I would think is the best shot personally. I think it can be improved. I think a lot of miners in the coal fields will agree that we're selling ourselves short. It's a good thing. It's needed. It's been needed. You know, I support it, but I don't totally support it in the form its in cause I think there's areas that are gray. I think there are areas that need to be improved and one area is in particular the person, that should be pleural. There should be more than one and not necessarily even two. Again, you take a situation. You put yourself in a mine emergency and you know you have people that are probably essentially dead. You got that facing you. You have the owner of the company trying to call you. You have public relations, TV stations, radio stations is trying to contact and the responsible person is trying to direct and, you know, or the responsible person is underground isolated and cannot give directions. It's not the question I'm putting in here of who initiates the evacuation. We all know that anybody can initiate an evacuation. The responsible person takes direction of the evacuation to get people out fast and decides who goes in. So what you're doing you're taking your leader away. DIRECTOR NICHOLS: Okay, I think we understand your comments. Thank you, Dwight. Anyone else? (No response.) DIRECTOR NICHOLS: What we're going to do here is take a break. We'll stay around here until at least noon in case people are traveling in because of bad weather that may be late, but we'll stay here to noon. We'll come back in about -- it's almost 10:30. We'll come back at eleven o'clock and go back on the record if someone has something that they want to say or someone who has already spoke wants to add anything to what they said. If not, we'll break up around noon. Thank you. (WHEREUPON, a recess was taken, after which the proceedings continued as follows:) DIRECTOR NICHOLS: Okay, the time is eleven o'clock. Does anybody else want to speak? Anybody think of anything they want to add to what we've already heard? Okay, we're going to go back off the record and we'll be here till noon. If anybody shows up, we'll go back on the record. If not, this will close the public meeting. (WHEREUPON, a recess was taken, after which the proceedings continued as follows:) DIRECTOR NICHOLS:Okay, we're back on the record. Max Kennedy with the UMWA will be our next speaker. MR. KENNEDY: My name is Max Kennedy, M-a-x K-e-n-n-e-d-y. I'm employed by the United Mine Workers of America as an International Representative. I was part of the investigative team due to the explosion that occurred at the Jim Walters No. 5 mine on September the 23rd of 2001 in Brookwood, Alabama. Today I come -- first of all,I'd like to thank the agency for the opportunity to comment on the emergency evacuation rule. It is unfortunate at the time on September 23rd on the evening shift that measures weren't taken to protect miners by the responsible person on the surface. This rule itself --and we what we found during our investigation was the fact that evacuation procedures were not instituted at the onset of the communication between the section foreman and the responsible person on the surface due to the lack of training of that person on that surface, due to the lack of procedures that should have been in place by the company and put in place at the time that this occurred. If you look across the country, each mine has a person that is stationed on the surface while miners are underground. A lot of times there is no requirement as to the competency of that person and what training that that person receives as far as the underground plans, the underground escapeways and if there is 101(c) petitions in place as far as CO monitoring, that training is very limited. What I want to key in on today is the fact that even though, if you take a complex mining operation such as the Jim Walter mines or the VP mine that is in Buckingham County, Virginia, those mines already have in place a 101(c) petition that grants the use of conveyor belt air at the face. Those petitions were granted in the early '80s and late '70s and they deal with most issues as far as the ambient CO level in each coal mine. They also deal with the alert alarm modes for that person stationed on the surface to take action to alert miners underground. In those petitions that were granted, the enforcement of those petitions have not been adequate to address alerts and alarms and the records across this country of alerts and alarms and the actions of the operator to respond to those alerts and alarms, but in this rule it does not go far enough to address the additional precautions and actions that are granted in some of the most recent 101(c) petitions that were submitted and granted after the final rule of underground coal mine ventilation. Given the fact that the enforcement during a Triple A inspection if an authorized representative of the Secretary reviewed the records of alerts and alarms of those 101(c) petitions, most likely you would have seen that deficiency prior to this emergency rule and enforcement, like I said, of existing regulations needs to be keyed in on, and as far as training of that responsible person on the surface as far as the miners themselves in dealing with an event, any future event that may occur, and even though in this rule that you may require some type of extensive training for that individual on the surface, keep in mind that that person at the onset of an event has a host of responsibilities and he is in a decision making mode, and his first and primary obligation is to establish communications between himself and the miners underground. Now, then there's a second phase that kicks in your communication between outside sources, he has to fill that also. So given the fact that that individual is trying to address a serious situation underground, he is also having to deal with communications that are coming in from outside sources, which takes away from the fact that he is trying to respond at the quickest possible moment to assess the situation underground and institute whatever procedure, whether it be evacuation or whether it be firefighters, equipment to the area and those type things and that is why that one individual cannot bear that burden on the surface of a mine in a situation like that. If you look at these operations, these complex mining operations that I've spoke to, such as the VP mines and also the Jim Walter mine -- first of all, let's talk about the VP mines. They've petitioned for belt air; a 101(c) petition that was granted. They don't have one, but they have two responsible persons on the surface. They have what we call a dispatcher who controls underground mine traffic. In addition to that person you have the responsible person who is stationed at the CO, what we call the CO monitoring room and his responsibility is to monitor the CO levels and the CO sensors underground and he gets an alert or alarm and he notifies the dispatcher who knows where people are all the time, and in that situation you have that person field the outside communication coming from the CO room and the dispatcher himself is in control of the communications underground. So you have two individuals that have knowledge of the situation, you have two individuals that are able to communicate both with the miners underground and also fielding calls coming in from outside sources and given the fact that you have two individuals, then you also have the ability with those two individuals to make sound decisions at the earliest possible moment. The emergency rule does not go that far and it still places the burden on one individual making these decisions on his own with respect to miners' health and safety. That is something that you really need to take a look at, because given the fact the situation occurred at the Jim Walters No. 5 mine on the afternoon shift the responsible person on the surface came after the shift started. He didn't have the opportunity at the time when he came in to actually know where miners were underground, and it happened early in the shift to where he did not have availability to him to find out where the miners were underground but also didn't have communications with all the miners in different areas underground that he should have. So with that in mind this situation occurred, the training that he had was inadequate and plus he did not have assistance that should have been there. There should have been another person on the surface to assist this individual fielding outside calls so that he could have attention to alert those miners that shouldn't have went back in, that should have been given the evacuation order and came out of the mine. The other point I would like to make is the fact that in the year 1993, the proposed rules for underground coal mine ventilation was extensively commented on by the United Mine Workers of America. This was one of those areas that we did comment on and I would point you to those comments and that they be included in this record for review prior to any action with the final rule and I thank you. DIRECTOR NICHOLS: Thank you, Max. Anything? MR. CROCCO: Max, when you talk about the two people, are you saying that the two people will be needed only in mines using a CO system or do we need it at all mines? MR. KENNEDY: Well, you would have to look at the complexity of the operation and, you know, you can't compare apples to oranges or a small hilltop mine that maybe operates one shift and one crew, maybe a total of eight men, compared to an operation that may have a series of ventilation shafts which would be anywhere form 70 to over 100 people working a shift, and if you take one individual and his obligation is to keep up with the 8 people versus 120 people in different areas of the coal mine, then that takes on a new perspective by that individual and, you know, if he's superman, he may be able to do it, but if he's just a common, average coal miner that received -- let's say, he received accident training. Then he has to make split-second decisions and a lot of times if no one is there that can assist him and he may make the wrong decision. So, you know, that's the point I'm trying to get across that even the President of the United States cannot push the red button on his own. There's another individual with a key and he has to do the same thing before any decision is made for a preemptive strike, so no one individual should be able to make a decision on that. He should have assistance when making that decision. MR. CROCCO: You're saying you need a helper and not necessarily that there ought to be -- MR. KENNEDY: No, it shouldn't be just a helper. It should be somebody with equal knowledge, equal training, able to make correct decisions, cause, you know, in a crisis situation that individual has the lives of all those miners that are working underground at that time; and if he doesn't have the right information, then he may not make the right decision; whereas, if he's concentrating on the crisis at hand, the other responsible person that is there can be freed up, gathering the other information so that both, the two can make the appropriate decision and also contact the outside sources for that information as far as the situation and what should or shouldn't be done. DIRECTOR NICHOLS: If the decision had been made quickly after the first explosion at the Jim Walters No. 5 to evacuate the mine, would the emergency procedures in place at that time had been adequate to get everybody out of the mine? MR. KENNEDY: As far as the procedures that were in place at the time, they were inadequate as far as deficiencies within the -- the improved decisions themselves, not saying that it was flawed to the point it wouldn't work, but if in fact, the responsible person had the correct knowledge, if in fact he did, we don't know. It was testified to that he was told on the onset that there was an explosion. He testified and it wasn't clear whether or not he gave people underground the right information, whether he told them, which he said he did, but those persons who testified said they were told a host of different things that were occurring underground. Now there was confusion there. If another person had been outside, then he would have had the obligation, if you will, to have reported because two people would have heard the same thing that it was an explosion, so the urgency of the word "explosion" would have caused the two individuals to have been -- to have reacted more quickly and possibly had been able to make a decision so -- the order underground, which even though if they had, there were miners underground they didn't even know was in there. There were three miners working in an area of the mines didn't have -- that he had no knowledge of those miners -- well, those miners were underground in the second explosion anyway. They did survive because they were way off outby the number four section, but I don't know if that's clear enough for you or not. If in fact he had reacted with the knowledge that there had been a first explosion and he had notified the miners underground -- DIRECTOR NICHOLS: Right. MR. KENNEDY: -- that there was an explosion, you need to evacuate, then there's no doubt in my mind the majority of those miners would have started toward the surface. DIRECTOR NICHOLS: Yeah, that's the critical issue. All other issues are important to make that decision to evacuate after the first explosion. MR. KENNEDY: Well, that's my point. No one person should be able to make that decision. It should be a combination of at least two people on the surface with responsibility and knowledge of what is going on to make that decision. DIRECTOR NICHOLS: In case one doesn't understand it -- MR. KENNEDY: Right, that's right. DIRECTOR NICHOLS: -- you're not going to stand there and debate. They've already had the explosion. MR. KENNEDY: Right. MR. LUNDGREN: So to clarify when we have two people, I assume you mean either one could order the evacuation. You meant we don't have to state evacuate or don't evacuate if they disagree for some reason? MR. KENNEDY: I think that would be addressed in the evacuation plan as to the situations because most of the evacuation procedures as far as a 101(c) petition is spelled out what they do underground if they have an alert. It doesn't mean it's critical enough for them to come outside. It may be critical enough for them to come out by the sensor alarm. So given the situation, the two individuals will be more prepared to deal with it than one person is the point I'm trying to make. DIRECTOR NICHOLS: Okay, Max, thanks. I appreciate it. MR. KENNEDY: Thanks. (WHEREUPON, the hearing was concluded.) // // // // // // // // // // // // // // // // // // // // // // REPORTER'S CERTIFICATE STATE OF WEST VIRGINIA, COUNTY OF KANAWHA, to wit: I, NANCY MCNEALY, Certified Verbatim Court Reporter, do hereby certify that the foregoing is, to the best of my skill and ability, a true and accurate transcript of all the proceedings as set forth in the caption hereof. Given under my hand this 19th day of February, 2003. My commission expires November 26, 2010. Certified Court Reporter ?? 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 Heritage Reporting Corporation (202) 628-4888 Heritage Reporting Corporation (202) 628-4888 Heritage Reporting Corporation (202) 628-4888