30 CFR PART 57 ) ) DIESEL PARTICULATE MATTER ) EXPOSURE OF UNDERGROUND METAL ) AND NONMETAL MINERS; PROPOSED ) RULE ) Pages: 1 through 91 Place: Albuquerque, New Mexico Date: May 13, 1999 UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION 30 CFR PART 57 ) DIESEL PARTICULATE MATTER EXPOSURE ) OF UNDERGROUND METAL AND NONMETAL ) MINERS; PROPOSED RULE ) Salon III DoubleTree Hotel 201 Marquette, N.W. Albuquerque, New Mexico Thursday, May 13, 1999 The hearing in the above-entitled matter commenced, pursuant to notice, at 8:30 a.m. PANEL: THOMAS TOMB, Chief, Dust Division, Pittsburgh Health and Safety Technology Center, MSHA, Pittsburgh, Pennsylvania JON KOGUT, Office of Program Evaluation and Information Resources GEORGE SASEEN, Technical Support ROBERT HANEY, Technical Support SANDRA WESDOCK, Office of the Solicitor JAMES CUSTER, Metal and Nonmetal Division RONALD FORD, Office of Standards, Regulations and Variances PAMELA KING, Office of Standards, Regulations and Variances SPEAKERS: PATRICK S. ALLEN, Getchell Gold, Golconda, Nevada PAUL SCHEIDIG, NVMA, Reno, Nevada BRUCE WATZMAN, NMA, Washington, D.C. DEBORAH GREEN, U.S. DOL, Office of the Solicitor I N D E X STATEMENT: PAGE: THOMAS TOMB, CHIEF, DUST DIVISION, PITTSBURGH 3 HEALTH AND SAFETY TECHNOLOGY CENTER, PITTSBURGH, PENNSYLVANIA PATRICK S. ALLEN, CMSP, LOSS CONTROL MANAGER, 12 GETCHELL GOLD, GOLCONDA, NEVADA DEBORAH GREEN, U.S. DOL, OFFICE OF THE SOLICITOR 44 BRUCE WATZMAN, NATIONAL MINING ASSOCIATION, 61 WASHINGTON, D.C. P R O C E E D I N G S OPENING STATEMENT OF THOMAS TOMB, CHIEF, DUST DIVISION, PITTSBURGH HEALTH AND SAFETY TECHNOLOGY CENTER, PITTSBURGH, PENNSYLVANIA CHAIRMAN TOMB: All right, I'd like to get this hearing started. For the record I'd like to read the following opening statement: My name is Thomas Tomb and I am the Chief of the Dust Division, Pittsburgh Health and Safety Technology Center in Pittsburgh, Pennsylvania. And I will be the moderator for this public hearing on MSHA's proposed rule addressing diesel particulate matter exposure of underground metal and nonmetal miners. Personally, and on behalf of Assistant Secretary J. Davitt McAteer, I would like to take this opportunity to express our appreciation to each of you for being here today and for participating in the development of this rule. With me on the panel today from MSHA are Jon Kogut, from the Office of Program Evaluation and Information Resources; George Saseen and Robert Haney, from Technical Support; Sandra Wesdock, from the Office of the Solicitor, Mr. James Custer from Metal and Nonmetal's Health Division; Ron Ford and Pamela King from the Office of Standards, Regulations and Variances. This hearing is being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is the practice of this Agency, formal rules of evidence will not apply. We are making a verbatim transcript of this hearing. It will be made an official part of the rulemaking record. The hearing transcript along with all of the comments that MSHA has received to date on the proposed rule, will be available to you for review. If you want to get a copy of the hearing transcript for your own use, however, you must make your own arrangements with the reporter. We value your comments. MSHA will accept written comment and other data from any one, including those of you who do not present an oral statement. You may submit written comments to Pamela King, who is on the panel here, during this hearing or send them to Carol Jones, Acting Director of the Office of Standards, Regulations and Variances, at the address that's in the notice. We will include them in the rulemaking record. If you feel you need to modify your comments or wish to submit additional comments following the hearing, the record will stay open until July 26, 1999. You are encouraged to submit to MSHA a copy of your comments on computer disk. Your comments are essential in helping MSHA develop the most appropriate rule that fosters safety and health in our nation's mines. We appreciate your views on this rulemaking and assure you that your comments, whether written or oral, will be considered by MSHA in finalizing this rule. In April 1998, MSHA published a proposed rule to address exposure to diesel particulate matter in underground coal mines. Hearings were held in 1998. The rulemaking record will close on July 26, 1999 for that rulemaking, the same date as it is for the metal and nonmetal comment period. The scope of this hearing today is limited to the October 28, 1998 proposed rule published to address diesel particulate matter exposure of underground metal and nonmetal miners. This hearing is the second of four public hearings to be held on the proposed rule. The first hearing was held in Salt Lake City, Utah, on May 11. Additional hearings are scheduled to be held on May 25 in St. Louis, Missouri and on May 27 in Knoxville, Tennessee. On October 29, 1998, MSHA published a proposed rule that would establish new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines. The proposed rule is designed to reduce the risks to underground metal and nonmetal miners of serious health effects that are associated with exposure to high concentrations of diesel particulate matter. Diesel particular matter is a very small particle in diesel exhaust. Underground miners are exposed to far higher concentrations of this fine particulate than any other group of workers. The beset available evidence indicates that such high exposures puts these miners at excess risk of a variety of adverse health effects, including cancer, lung cancer. The proposed rule for underground metal and nonmetal mines would establish a concentration limit for diesel particular matter and require mine operators to use engineering and work practice controls to reduce diesel particulate matter to that limit. Underground metal and nonmetal mine operators would also be required to implement certain "best practice" work controls similar to those already required of underground coal miners under MSHA's 1996 diesel equipment rule. Additionally, operators would be required to train miners about the hazards of DPM exposure. Specifically, the proposed rule would require that: The limit would restrict DPM concentrations in underground metal and nonmetal mines to about 200 micrograms per cubic meter of air; Operators would be able to select whatever combination of engineering and work practice controls they want to keep the DPM concentrations in the mine below this limit; The concentration limit would be implemented in two stages: An interim limit that would go into effect following 18 months of education and technical assistance by MSHA; and a final limit after five years. MSHA sampling would be used to determine compliance. The proposal for this sector would also require that all underground metal and nonmetal mines using diesel- powered equipment observe a set of "best practices" to reduce engine emissions, such as the use of low-sulfur fuel. The comment period on the proposed rule was scheduled to close on February 26, 1999. However, in response to requests from the public for additional time to prepare their comments, and with additional data added to the rulemaking record by MSHA, the Agency extended the public comment period until April 30, 1999. The Agency welcomes your comments on the significance of the material already in the record, and any information that can supplement the record. For example, we welcome comments on: additional information on existing and projected exposures to DPM and to other fine particulates in various mining environments; the health risks associated with exposure to DPM; on the costs to miners, their families and their employers of the various health problems linked to DPM exposure; or additional benefits to be expected from reducing DPM exposure. The rulemaking record will remain open for submission of post-hearing comments until July 26, 1999. MSHA received comments from various sectors of the mining community and has preliminarily reviewed the comments it has received thus far. MSHA would particularly like additional input from the mining community regarding specific alternative approaches discussed in the economic feasibility section of the preamble. As you might recall, some of the alternatives considered by MSHA included: an approach that would limit worker exposure rather than limiting particular concentration; a lower limit; shortening the time frame to go to the final limit; more stringent work practices and engine controls; and requiring particular filters on all equipment. The Agency is also interested in obtaining as many examples as possible of specific situations in individual mines; for example, the composition of the diesel fleet, what controls cannot be utilized due to special conditions, and any studies of alternative controls you might have evaluated using MSHA's computerized Estimator, which was published in the "Federal Register." We would also like to hear about any unusual situations that might warrant the application of special provisions. The Agency welcomes comments on any topics on which we should provide initial guidance, as well as any alternative practices which MSHA should accept for compliance before various provisions of the rule go into effect. MSHA vies these rulemaking activities as extremely important and knows that your participation is also a reflection of the importance you associate with the rulemaking. To ensure that an adequate record is made during this proceeding, when you present your oral statements or otherwise address the panel, I ask you to come to the podium and clearly state your name, spell your name, and state the name of the organization that you represent. It is my intent that during this hearing anyone who wishes to speak will be given an opportunity. Anyone who has not previously asked for time to speak needs to tell us of their intention and sign the speaker sheet that is -- is it still out in the front, Pam? MS. KING: Yes. CHAIRMAN TOMB: That's out on the table outside the room. Time will be allocated for you to speak after the scheduled speakers. We are scheduled to go until 5 p.m. today, however, we will call a limit or a halt to the hearing if we're out of speakers. I will attempt to recognize all speakers in the order in which they requested to speak. However, as a moderator, I reserve the right to modify the order of presentation in the interest of fairness. I doubt that it will be necessary, but I also may exercise discretion to exclude irrelevant or unduly repetitious material, and, in order to clarify certain points the panel may ask questions of the speakers. Today we have three people that have signed up to speak. The first is Mr. David Sheffield from the Nevada Mining Association. He spoke in Salt Lake. MR. SCHEIDIG: David spoke in Salt Lake and won't be here today. So I think we had reserved that in each of the hearings. But it won't be necessary to today to take that spot and that time. CHAIRMAN TOMB: Okay. Is he going, is he going to be at the other hearings though? You mentioned you signed up. MR. SCHEIDIG: I'm with the Nevada Mining Association. And David may be at one of the other hearings. I will, I will definitely speak in Knoxville in his place. CHAIRMAN TOMB: Okay. But you're not going to make a presentation? MR. SCHEIDIG: No. No, sir. CHAIRMAN TOMB: Could you give us your name? MR. SCHEIDIG: Paul Scheidig. CHAIRMAN TOMB: Paul? MR. SCHEIDIG: Yes. S-C-H-E-I-D-I-G. And I'm with the Nevada Mining Association. CHAIRMAN TOMB: All right, thank you. MR. SCHEIDIG: You're welcome. CHAIRMAN TOMB: The next person we have on the list is Mr. Henry Chajet from Patton & Boggs. MR. SCHEIDIG: When I was speaking to Henry the other day in Salt Lake he wasn't going to make this one but I thought he, I think he said he was going to be in St. Louis. CHAIRMAN TOMB: Okay, thank you. And the final speaker that we have on our list so far is Mr. Patrick Allen from Getchell Gold. MR. ALLEN: Yes, sir. CHAIRMAN TOMB: Okay. MR. ALLEN: I'm here. (Laughter.) CHAIRMAN TOMB: You have the rest of the day. MR. ALLEN: All right. I've got a 35 cents sermon here this morning. STATEMENT OF PATRICK S. ALLEN, CMSP, LOSS CONTROL MANAGER, GETCHELL GOLD, GOLCONDA, NEVADA MR. ALLEN: Mr. Chairman, members of the panel, I appreciate this opportunity to speak to you this morning. My name is Patrick, P-A-T-R-I-C-K, middle initial S, last name Allen, A-L-L-E-N. I am the Loss Control Manager for Getchell Gold. And at the end of my presentation -- or you're getting them now -- I have some comments there. I'm not going to read those to you. You'll find out I don't read so well. But if I may, an opening statement this morning or story. I'm reminded as I came in here this morning of a minister during the Depression. He was asked to fill the pulpit for another minister who was called away suddenly. So as he went into the church he took his young son with him. And back in those days, as you well recall, a quarter was worth something. At the back of the church in the foyer there was a little sealed box where you put your tithe in. And as the minister walked in he dropped his quarter into the box. He got up and he delivered what he thought was the finest sermon he had ever given. And, boy, he was just happy. It was over. And one of the elders approaches and says, "As our tradition is, we're going to give today's tithe to the minister." Well, lo and behold, they opened up that tithe box and there was a quarter in it. And as they were leaving the church that day the minister was somewhat dismayed. And he was just shaking his head. And his young son looked at him and he said, "Dad, had you put more into it you would have gotten more out of it." That's kind of the position we in mining are right now. We have something to say, we want to say it, and we hope we get something out of it and it's worth our time. And that's why I'm here today. There is nothing that I can recall in the short term or even the long term that has unified mining, and especially mining in northern Nevada, as this proposed rule. I am not an industrial hygienist. I am not an engineer. I have nothing but a CMSP. I'm a certified mine safety professional. I implement and I oversee safety programs. And I'm also a dumb Kansas farm boy. And that's where I'm coming from today, I hope from a common sense approach as to why this rule should not go as it's written or proposed. As I've said, this has unified the mining industry in northern Nevada, and I think you're going to see it throughout the United States because we have some concerns. They are spelled out in my comments this morning. But one of the things that really concerns me is the fact that there is a possible health hazard associated with DPM. And I use the word "possible." I have a 22-year- old son. He works at the mine during his summer breaks from college. And I can tell you as a father and as somebody concerned about the health and safety of the miners at our mine I would not knowingly expose my son or somebody else's son, husband or relative to a known hazard. I would not. I could not in all clear conscience do that, nor would I. I'm in the wrong profession. But they're possible health effects and we are concerned about them. I think there are some things that could be done. But the one thing that worries us is that this proposed rule is a premature rush to regulation. You know, I was in California last week. And a lot of impetus comes out of California for this rulemaking. And as I stood in a restaurant I was reading a sign, a placard on the restaurant wall that said something to the effect, if I can paraphrase it, caution: drinking of distilled liquors, beer and wines may cause cancer. The air we breathe may cause cancer. Are we going to tell all miners they have to stop drinking because there is an associated or a possible health effect? It would really limit the number of miners we have out there. It's a common sense approach. There is nothing concrete that spells out that DPM is a carcinogen. You're asking us to fight a battle; we don't know who the enemy is or what it is. In its preamble, the Agency refers repeatedly to the Supreme Court's "Benzene Decision." It is worth recalling, however, that the "Benzene Decision" struck down OSHA's benzene regulation because it was not supported by adequate findings. In the "Benzene Decision" the Supreme Court emphasized its serious concern with the inadequacy of OSHA's findings concerning a dose response correlation between adverse health effects and any realistic occupational exposure level. We find MSHA's Risk Assessment singularly lacking in reliable evidence based on reputable scientific thought that any particular occupational DPM exposure level is associated with adverse human health effects. And the existing studies are far from dispositive and reveal many conflicting and inconclusive results. And we just need to take our time and we need to weigh it and more studies need to be done. To compare miners to rats is an irrational thought to me. These are living, breathing human beings, they are not caged laboratory animals. And there has not been a study on these miners as to what the effects are. The Mine Act requires as a necessary predicate for a health standard dealing with a potentially toxic substance the best available, reliable evidence that miners are at significant risk of suffering material impairment of health at given levels of the occupational exposure in question. In our view, the cumulative weight of all of MSHA's needed disclaimers in its proposal as to the flaws, inadequacies, contradictions and inconclusiveness of the various studies means that the best available evidence really isn't very good at all for the proposition that there are significant occupational DPM health risks justifying the severe PELs proposed. In view of the uncertainty of this available evidence, we urge MSHA to adopt a more reasonable approach to DPM control. Such a stance is particularly appropriate because, as noted by the Agency and the National Cancer Institute, two other arms of the government, are presently conducting what may prove to be, if appropriately designed, a more illuminating study of the relationship between DPM and health effects. And we'd also join as Getchell Gold in the Nevada Mining Association's recommendation in its 1999, April '99 letter to you of MSHA, that MSHA continue development of its 1997 Toolbox approach in reducing exposure to DPM. And like the Nevada Mining Association, we believe the continued application of the flexible Toolbox process is the most reasonable regulatory and industry strategy. Moreover, we strongly suggest that MSHA conduct an endeavor in meaningful concern with all segments of the mining industry. When we talk about a level playing field, that's the only way we're going to get a level playing field is for industry and the regulatory agencies to set down and have some dialogue and do what's best for our miners, if that's what we're all about. As I said before, I'm not an industrial hygienist. I don't conduct the tests at the mine, but I can tell you this, that since the 1st of January we have spent thousands of dollars on doing sampling underground. And the NIOSH 5040 methodology in the Nevada undergrounds, and that's what I'm talking about today, and in particular the Getchell Gold, is flawed. Getchell has conducted its own extensive sampling for DPM using the NIOSH 5040 method set forth in the Proposed Rule. The fact of the matter is we not only have carbonaceous ores which was taken into consideration in coal mining, we also have graphite bearing ores which also impact the 5040 methodology. We have oil mists down there from jacklegs, pneumatic drills, etc. Our results are completely unreliable as indicators of DPM. Similar problems with testing in underground coal mines led MSHA in its coal proposal to reject a PEL approach to control of DPM exposure in the mining sector. And PEL methodology is no more appropriate for underground Nevada mines with carbonaceous ores, and it should be rejected here too for substantially the same reasons. To force PEL approach in these circumstances, while rejecting it in similar context, would be arbitrary and would be capricious. If adopted, the proposed rule would be financially burdensome on Getchell. Where we came up with this 89 to 100 thousand dollars first year I don't know, but if cabs alone at $7,000 and we've got over 60 pieces of mobile equipment underground, that's over a half a million dollars. And I'm not a match expert either. That's just for one proposed reg. And cabs to me are just a no-brainer. Because not everybody can work in contained environment. What about that miner out there at the face drilling the round? What are we going to do for him? How do we control it for him if it is the health hazard that everybody says it is? Do we put him in protective suits which increase the hazard? I think not. Going to electrical equipment is just, it's out of the question. The feasibility. Now, I'm talking strictly about precious metals now, and I don't know how in tune you are to what gold's doing, but the fact of the matter it's dropping. At some point in time enough is enough. The other thing when it comes to feasibility is it's unattainable. This standard is unattainable for the mining industry. What's going to happen is if you go with the 400 PEL and then you drop it to the 160 as the proposed rule says, we in mining are going to do one of two things: we're going to fly in the face of it and we're going to get closure orders. And then what about the economic impact? We only employ 670 employees. That's a major impact in Winnemucca, Nevada, if they're not working. Or, as I say, we're going to fly in the face of those orders and we're going to end up by litigating. And I don't think that's a reasonable outcome. I believe that dialogue is the way to go. Let me say that Getchell cannot afford to eliminate and replace its diesel fleet and continue profitable mining. And why are we in business? Nor can it realistically absorb the heavy cost of refitting that fleet and upgrading ventilation to comply with the proposed rule. Ventilation. We estimate that it would add about $10 per ton to production to do the ventilation necessary to control the diesel particulate as outlined in this rule. Now, that begs the question of an already identified hazard being silicosis. One way we control it is by keeping our roads wet. So what does the increased ventilation do to us? How do we keep those roads. How do we control dust. All of a sudden we have increased our exposure to another health concern. To assess the validity of the proposed rule Getchell has carried its own preliminary DPM sampling with NIOSH 5040 method set forth by MSHA in its proposal. We have also preliminarily analyzed compliance costs with the Proposed Rule. And as discussed, the resultant data is very troubling and has convinced us that MSHA just substantially rethink its approach. And as noted, Getchell's mobile fleet is almost entirely diesel powered. Based on realistic estimate costs of outfitting our affected diesel vehicles with appropriate aftertreatment control devices, and some of which do not actually exist in today's market, and/or installation of fully enclosed cabs, needed ventilation upgrades to accommodate the stringent proposed PELs, and annual costs, maintenance and upkeep tied to such changes, we find that our annualized costs would be approximately five times that identified in this Proposed Rule. We will supply specific economic data in our final comment. Wholesale replacement of our diesel fleet is simply not an option from an economic standpoint. And the other thing that concerns me about diesel particulate -- and like I say, I'm not a rocket scientist here -- but the cleaner you get that diesel engine to burn the smaller the particulate comes out. Now we've bypassed a natural defense in our body. As you know, the hair in your nose is intended to keep larger particulate out of the system. Now all of a sudden we've increased the exposure to our miners because we have cleaner burning. And I'm not saying we need dirty burning engines down there either. But I think that we could come to some amiable remedy to this. And, as a matter of fact, speaking for Getchell I know that we replace engines on the average of every two years and we put the most modern on the market in at the date that we install them. It's an ongoing process. Our entire fleet is less than three years old. We urge MSHA and the Department of Labor, of which it is a constituent part, not to lose sight of the economic health of this industry. At what point are speculative marginal improvements in health protection based on inconclusive evidence outweighed by the disappearance of the jobs assertedly protected as a result of the imposition of the heavy new compliance costs? Concerns with the Proposed Rule's provisions. And it is a concern, there are so many new things added to it. The preceding comments address the basic, but infirm, rationale of the Proposed Rule. Getchell also has concerns with many of the proposal's specific provisions. Like the Nevada Mining Association we find the proposal overly complicated. That old acronym I remember as a Marine was KISS, "keep it simple stupid." Napoleon had a rule that before he issued an order for battle he wouldn't have his officers read it, instead he'd go out to the corporal who stood guard outside his tent, he would give him that battle order and say, "Corporal, do you understand this?" And if the corporal didn't he'd rewrite it. We need to keep it simple. As one example of the flaw, note the proposal's addition of a separate new training component for DPM. That's already covered in Part 48. Hazard communications; there's a section in there. Mine gases is covered in Part 48. Why do we need a separate new entity out there that just causes more paperwork? Similar problems with overcomplexity exist with regard to the Proposed Rule's recordkeeping and equipment maintenance requirements. There are already maintenance requirements, i.e., an operator does a pre-op check on his piece of equipment. If he finds something that affects safety, etc., he's to red tag it, notify the shop. The shop is to keep that pre-op card until the correction is made and then there is a permanent record in that vehicle's file already. Why do we need to throw more records to keep? Is it a way of circumventing what we're already required to keep and adding more paperwork to us? Simplicity is the key to acceptance, implementation and success of any reasonable strategy to control DPM exposure. Not only that, now we have to keep records on our mechanics. Now, I ask you, if you had a $250,000 piece of equipment would you just let anybody work on your equipment? I think not. I think you bring in the manufacturer's rep and he trains these people already on how to work on it. Why do we need to keep more records. Downgrading of PPE. We also endorse the Nevada Mining Association's criticism of the Agency's continuing downgrading of administrative controls and the use of personal protective equipment in favor of considerably more expensive and presently infeasible engineering controls. Operators will act in good faith to use all available methods to reduce exposure to toxic substances, and miners today will accept PPE. If MSHA's goal is the protection of miners in the context of actual jobs in a viable industry, it must permit flexible control approaches and not penalize operators for using one of the most efficient tools it has, and that's PPE. Getchell welcomes a constructive dialogue with the Agency, and urges MSHA not to commit itself to the proposed approach, which, for the reasons summarized above, is premature, overly-stringent and infeasible. Getchell is committed to proactive approach to mine safety and health and environmental issues. For example, there is a Toolbox out there concerning mercury. The crux of that toolbox was the settlement and the agreement which Getchell worked out with the Secretary of Labor back in 1997-1998. Davitt McAteer himself has used that in many talks about the interaction between industry and the agency. And if we can do it once I know we can do it again. And it's imperative that we do it. As one grassroots member of the mining community, we would be pleased to work with the Agency to develop a more reasonable strategy than the Proposed Rule for controlling DPM exposure. And if I might, in closing, you know, I, and I'm not an attorney either but I've spent a lot of time with attorneys here lately, but I kind of feel like an attorney. You're the jury. We've got a man convicted of murder out here. Rightfully or wrongfully there's been a lot of press on him. And, by golly, I hope that I'm not and that the mining industry itself is not delivering its closing arguments to a jury that's already made up its mind. I hope not. Because we're all in it for the same reasons I believe, and that's the protection of these miners and to keep an industry viable and alive in the United States. There are things we can do. And I think as a group both industry and as the Agency we can work it out. Thank you for your time. CHAIRMAN TOMB: Thank you, Mr. Allen. Don't leave. MR. ALLEN: All right. I'm an industrial hygienist. I have no technical data with me. That will be provided later. CHAIRMAN TOMB: Do you have any questions? MR. SASEEN: Yes. CHAIRMAN TOMB: George? MR. SASEEN: You said that you change your engines out every two years? MR. ALLEN: Approximately, yeah. MR. SASEEN: Is that the entire fleet or just more your production, loaders, trucks, larger horsepower type engines? MR. ALLEN: Yeah. I like to think that everything we have is production. MR. SASEEN: Okay. MR. ALLEN: So we have no unnecessary pieces sitting around. But that's on average is the engines wear out. Some of those we'll change out even more often. You know, and the majority of ours are now the new computerized D-beck type engines, cabs. A lot of the old air-cooled are going by the wayside. So we get better efficiency out of what we do have. But that's just on average is about two years just by wear and tear. MR. SASEEN: What's the horsepower range of your fleet just roughly? MR. ALLEN: I didn't even bring that information with me. MR. SASEEN: Okay. MR. ALLEN: But the Wagner six yards, Elfenstone which is a new product with Cat engines in them. So. MR. SASEEN: You made a, you also made a statement that some aftertreatment controls were not available. And I assume you may be meaning filters. Was that based on the size of your engines they're not available or is that based on the duty cycle of your vehicles that they're not available? MR. ALLEN: I believe it's on the size of the engines. Everything I've gathered is that people say, yeah, we can make them. Well, you can make anything for a cost. MR. SASEEN: Okay. MR. ALLEN: You know. MR. SASEEN: Okay, thank you. MR. ALLEN: You bet. CHAIRMAN TOMB: Jim? MR. CUSTER: Here, as in Salt Lake, you've raised the issue that MSHA has I guess the word is deprecated the use of PPE and administrative controls. And I gather from the presentations there and here that one of the problems you have with the proposed rule is that it is indeed an environmental standard as opposed to a personal exposure standard. Given that, do you believe, and I realize you can't speak for all the stakeholders, but given that would you be willing as representing Getchell to accept a standard that indeed was a personal exposure standard and in line with the application of good industrial hygiene practice agree to look at the hierarchy of controls: engineering, PPE, administrative? MR. ALLEN: Yeah, feasible engineering would -- MR. CUSTER: Feasible, obviously. MR. ALLEN: I mean that word, you know, we say "engineering" but I think you need to look at feasible engineering. That's always been the way it's been enforced in the field. If you have a health or a safety standard it's feasible engineering, noise control. In the recent noise proposal, you know, PPE is not given any credence, it's just, you know, it used to be all right, now it's not all right. And what I think, I'd have to give that some thought. MR. CUSTER: I think in the noise proposal we do look at the hierarchy of controls, engineering first, obviously, to control at the source and then PPE -- or administrative controls and essentially PPE last. But the rule does not preclude the use of PPE. Thank you. CHAIRMAN TOMB: Ron? MR. FORD: Yes. Mr. Allen, do you have any aftertreatment devices on any of your existing machines now? MR. ALLEN: We use a catalytic converter type or a scrubber type device on them. MR. FORD: On your production pieces? MR. ALLEN: Uh-huh. That's pretty normal MR. FORD: You talked about the tag-out provision that how you follow the existing tag-out provisions that are on the books now. MR. ALLEN: Uh-huh. MR. FORD: Does that account for also emission problems like when if someone sees a lot of black smoke coming out do they tag out the machine or? MR. ALLEN: They have that, not only that responsibility, they have the authority to do that. If they feel that there is something -- I don't care if we have to go in there and do a gas test for them, which we had the TMXes readily available to go in and do it, we do it. They have that authority right now. I mean I tell every miner that hires on there, don't make them make you do an unsafe act or operate an unsafe piece of equipment. And I mean that, and so does the rest of the management. We're that strong on it. So they do. I mean if they feel if that machine is not operating properly, it's running rough or what have you, they can shut it down (right then and there. And we expect them to. MR. FORD: Okay. And they have shut it down for) emission type problems in the past? MR. ALLEN: They've noted on their operator cards exactly, you know, that this thing needs to be looked at, etc. MR. FORD: I've just got one more question. And that is, you talked about your mechanics a lot of times manufacturer reps will come in and train them on a particular task. MR. ALLEN: Or on a piece of equipment. MR. FORD: Or on a piece of equipment. MR. ALLEN: Yeah. MR. FORD: When they do that do they ever given them a paper or anything saying they're certified or do you make a record in the book that as of this day this person was trained or received this training? MR. ALLEN: It has not been a requirement up to this point in time. And like I said, when we bring these guys in they're not training them on a particular task. For example, Elfenstone, we have the largest fleet of Elfenstone equipment right now in the United States at our Turquoise Ridge Mine. So we bring Elfenstone in on a regular basis to work on the equipment with our mechanics. And Elfenstone will, you know, they'll hand out a certificate if you would, you know, just kind of a has met the 40 hour requirement, whatever type training he's getting. It's kind of a "attaboy" type thing. MR. FORD: Okay. Do you keep that certificate on file in the company at the mine or? MR. ALLEN: If we're made aware of the training they've got we'll make a copy for their safety record. But to say right now that we do it unequivocally without fail, I wouldn't make that statement. MR. FORD: Okay. Thank you. CHAIRMAN TOMB: Just a, I just want to pick up on one of his questions, Mr. Allen. From your presentation, from the tag-out procedure, what in the rule requires more than what you're doing right now? MR. ALLEN: It's the fact that it's just another step out there that M -- that having to deal with the inspectors on a daily basis almost here recently. You know, the unfortunate thing is not all inspectors inspect the same way, you know. CHAIRMAN TOMB: I know, but -- MR. ALLEN: They see an apple and I've got an orange. And then they're going to write me citations because that thing doesn't appear to be running right or what have you. Where's your tag? You know, why is he operating? I don't know. It's a personal judgment type thing. CHAIRMAN TOMB: I don't think that's -- in the discussion of the rule that hasn't been a issue for compliance purposes. I mean in examples that are given that isn't one of the permanent things. MR. ALLEN: But why would you, if you've already got it, if it's already established why do you need to put another standard in place for us? It's just one more we get beat up on. CHAIRMAN TOMB: Well, okay, but I guess the question, it seems like you do these things out of habit, okay. MR. ALLEN: Right. CHAIRMAN TOMB: But there are other mines out there that should be doing them that don't. MR. ALLEN: Then we should be enforcing the existing standards on them and not creating more standards and more paperwork for us. Because if I'm in violation of - - CHAIRMAN TOMB: And that's my question, though, from what you just said -- I don't mean to interrupt you -- but just from what I just said then, from what you just said, what additional paperwork are we create -- is the rule creating, not us, is the rule creating over what you do now, right now? MR. ALLEN: What I perceive happening is you're going to come up with a new section on diesel particulate just as you did air quality Part 5800, okay. You're separated it out. 14.100 already tells me that if I have a, if I have a -- I'm looking for the right terminology here. I know the standard. CHAIRMAN TOMB: Defect. MR. ALLEN: Yeah. If you have a defect in it and it applies to safety, you know, for the piece of equipment that you are to tag it out and repairs are to be made as soon as possible, okay, it's already there. CHAIRMAN TOMB: Yeah, but if those are the words though we don't have "health" in there. That's, then that's the sticking point. That's an argument. MR. ALLEN: I don't have my CFR with me. CHAIRMAN TOMB: Okay. Well, anyway, that's -- MR. ALLEN: But anyway, my sticking point is, you know, if you're training them under health hazards, if you're training them during their initial training about orange card operators' responsibilities, etc., which we do, which most of the mines around here do, you've already covered it. And what you're doing is you're just giving us one more standard that we're going to get hammered on, that we're going to be written for on a very regular basis. And that's our position is it becomes another hammer for enforcement. And I'm being, I'm being honest with you. CHAIRMAN TOMB: Yeah, okay. Okay. That's my question. MR. ALLEN: Because I have to deal with this on a daily basis. MR. CUSTER: Let me just finish up Tom's question. If the diesel particular standard had a section or a, yeah, a section or a paragraph stating that equipment would need to be inspected in accordance with, what is it, 14 -- MR. ALLEN: 14.100. MR. CUSTER: -- 14.100, would that be acceptable to the industry? MR. ALLEN: I can't speak for the industry. MR. CUSTER: I understand, but would it be acceptable to Getchell? Because it's not putting another standard on, it's merely reiterating a current standard. And I'm not sure, but I thought 14.100 indeed did mention health in there. MR. ALLEN: I think it does too. That's what I said, I don't have my CFR with me. And I -- CHAIRMAN TOMB: I don't either. That's -- MR. ALLEN: You know, I've got good recall but not total. MR. CUSTER: I think it's defects affecting health and safety. MR. ALLEN: Health and safety. I think you're exactly right. And it's already there. And why not include that in the preamble of that particular standard of 14.100. MR. CUSTER: But would it create a problem for Getchell to have it simply reiterated -- MR. ALLEN: Oh, I think any -- MR. CUSTER: -- there as a reminder? MR. ALLEN: Oh, I don't know about Getchell. But I know about me personally it would. Because it just becomes one more thing that we have to deal with and it's already covered. MR. CUSTER: Well, you're already dealing with it. This is simply -- MR. ALLEN: Yeah, but. MR. CUSTER: Well, I don't want to debate the issue. CHAIRMAN TOMB: Okay. Are you done, Jim? MR. CUSTER: Her's looking that up. CHAIRMAN TOMB: Oh, okay. MR. SASEEN: Tom. Could you -- back to my engine question, Mr. Allen. Could you supply us with an inventory of your engines? MR. ALLEN: I'd be more than happy to when we do our closing comments -- MR. SASEEN: Okay. MR. ALLEN: -- by July the 26th. MR. SASEEN: Fine. MR. ALLEN: We'll give the technical data we need to at that time. MR. SASEEN: Have you had the opportunity to do any estimate using the Estimator? MR. ALLEN: No, we have not. MR. SASEEN: Okay, thank you. MR. ALLEN: You bet. CHAIRMAN TOMB: Bob? MR. HANEY: I just, I had a couple of questions to help me clarify the conditions at your mine. What mining height do you normally have? MR. ALLEN: Backs? MR. HANEY: Yeah. MR. ALLEN: We're running 14, 15 feet in the back. MR. HANEY: Of those 60 pieces of equipment that you have do any of those have cabs on them currently? MR. ALLEN: No, they do not. We have ROPs. And it's hard to keep the ROPs on. MR. HANEY: Your loaders and your stopes don't have cabs? No? MR. ALLEN: No. MR. HANEY: Okay. When you said you replace equipment every two years is that the equipment or the engines? MR. ALLEN: The engines. MR. HANEY: Okay. And what about -- MR. ALLEN: And it's just a rotation, it's must a matter, it's just normal maintenance procedure. You schedule or budget X number of engines and that's usually what you end up replacing. MR. HANEY: Do you have any idea how frequently you would be replacing the equipment, what the life of a piece of equipment is? MR. ALLEN: Three to five years would be a norm for underground mining equipment. But you can get, you know, it depends on the operators how often they take it into the rib and other unknowns at this time how long you would keep it. MR. HANEY: Are you currently using low-sulfur fuel? MR. ALLEN: I believe we are. But I'm saying that as I haven't checked into it, to tell you the truth. MR. CUSTER: Mr. Allen, I stand corrected on the 14.100. It indeed does strictly -- MR. ALLEN: Safety. MR. CUSTER: -- say safety. So I guess the follow-up question then to that would you, representing Getchell, be agreement to an amendment to 14.100 to include health as one of the things that you would look for in defects that would have an effect on the miner's health issue? MR. ALLEN: I think that if I said no I'd be lying to this committee. You know, I believe it should be. MR. CUSTER: And if it were entirely, if that were entirely removed from the diesel particulates Proposed Rule and this simply amended to include health would then -- MR. ALLEN: Yeah, it would be -- CHAIRMAN TOMB: -- address your concerns? MR. ALLEN: Well, health is a concern. So, yes. MR. CUSTER: Thank you, sir. CHAIRMAN TOMB: Do you have another question, Bob? MR. HANEY: I have a few more questions. You said it would cost, add $10 a ton to your cost to provide ventilation to meet this PEL. Is that ventilation to dilute to 160 micrograms? MR. ALLEN: That's just to meet the 400 to start with. MR. HANEY: Okay. So that would be to dilute to 400. Okay, so then you must have some idea of what your current levels are? Do you have? Would you be willing to share those with us? MR. ALLEN: I don't have that information with me. As I said, that was a best guess estimate at this time as to what we would be adding to it. But I know that we're moving over 200,000 cfm into those mines. And I believe at the Turquoise Ridge it's even closer to 300,000 right now. MR. HANEY: Is that on a single, continuous split through the mine or do you have several air splits going through the mine? MR. ALLEN: The Turquoise Ridge is a shaft mine. So we're pulling off each one of the levels. MR. HANEY: Okay. And you said you're in favor of the Toolbox approach. What criteria would you use as a leveling criteria to ensure that all companies or maybe just your company was doing everything equally across the industry so that it wasn't left open to individual mines to decide what was feasible for their mine? MR. ALLEN: Well, I think the first thing is we need to have the dialogue. I don't believe that the Agency should have the burden of writing, you know, that Toolbox. As I said before, even on the lead and mercury or on the mercury toolbox, most of that was the result of dialogue between the Agency and Getchell Gold. Those best practices in there, that was our settlement agreement in essence that became -- So there was some dialogue. And that's what needs to happen here. For a Toolbox it needs to be the mining, whether it's mining associations or whoever need to sit down with the members of the Agency and let's work it out. Because if they have the input, you know, it's one of those things that if I have input into it and I feel comfortable with what I said then I'm going to do what I said. And mining is that way. But if we have no say in it, you know, it's just, it's frustrating. MR. HANEY: Okay. then one final question. You said you're not an engineer and you're not an industrial hygienist but then you went and said this is unattainable. What are you basing that on? MR. ALLEN: The fact that it's an arbitrary number. You know, and what we've seen in our mines with everything out there, you know, with the results of our studies, we're not going to get there from here. As I say, this is a common sense thing. I'm just a dumb Kansas farm boy. And you haven't proven to me, first of all, or to the industry that we have a health effect. I mean you can't say it may then say it is. Either it is or it isn't. And just to throw numbers out there, nobody has shown me how we came to those numbers. Nobody. It's an arbitrary, capricious ruling right now, or proposed rule. CHAIRMAN TOMB: Ron? MR. FORD: Just a quick question. In your written comments you say, you make, you also make the statement that to put on aftertreatment control devices including, and also including the ventilation, would cost five times as much. MR. ALLEN: Uh-huh. MR. FORD: And then you also made the statement that you haven't on -- I don't know on how many pieces of your equipment, but on some you can't even -- you don't even know how to do it, how to put that stuff on. I'm just kind of wondering how did you get your estimate of five times more? MR. ALLEN: Well, like I say, a cab is an aftertreatment because we have no cabs. Put the cabs on and just using a conservative figure of $8,000 to retrofit that cab, that's over $500,000. MR. FORD: Okay. MR. ALLEN: And that's five times more. And that's just for one fix. MR. FORD: Okay. MR. ALLEN: If you go with ceramic scrubbers or ceramic filters out there, after so many hours you have to take them out and send them off and get them cleaned because we can't afford a half a million dollar processing plant to clean those ceramic filters. So now we have to carry two filters for every piece of equipment. But it does get costly. CHAIRMAN TOMB: Jim? MR. FORD: Thank you. CHAIRMAN TOMB: Oh, I'm sorry, are you don't? MR. FORD: Yes. CHAIRMAN TOMB: Jim? MR. CUSTER: While you may have started out as a poor Kansas farm boy I think you've certainly evolved into quite an intelligent mining individual. And in line with that, what I've said, and in line with the dialogue that you would like to establish I would like to throw out -- well, I don't want to throw out -- I want to put out to the audience because in the audience there's an NVMA representative, there's an NMA representative and other people here, I'd like to throw out to them the challenge to provide comment if they would in regard to the issue of the health and safety defect inspection since we seem to have gone down that line just a bit today. MR. ALLEN: Okay. MR. CUSTER: Thank you. And yourself, too, sir. MR. ALLEN: One other thing, too, that I didn't mention in this, when we talk about the unnecessary burden is all of a sudden we look at a control plan also. If we go with the 400 and the 160 there's also a control plan that we have to maintain. And once we put that in writing if we don't maintain that control plan we're hammered, you know. We have no way out. CHAIRMAN TOMB: I think that's only for situations of where the standard's been found to be exceeded, isn't it? MR. ALLEN: Yeah, but by the same token I don't believe we're going to get there. CHAIRMAN TOMB: Oh, okay. Well, I'm just saying - - MR. ALLEN: Okay. CHAIRMAN TOMB: -- I'm just making the point that that is not a across-the-board requirement -- MR. ALLEN: Right. CHAIRMAN TOMB: -- of the standard, that's all. MR. ALLEN: And I think in northern Nevada mines it may very well become that just by virtue of the fact we have all this carbonaceous ore out there. MR. SCHEIDIG: Could you gentlemen speak up a little bit? I'm having difficulty hearing your questions again, especially since you said something about the Nevada Mining Association. I couldn't hear what. MR. CUSTER: What I had asked is because there are NVMA and NMA representatives here as well as representatives from other companies, in light of the dialogue that's been asked for I would like to see comment come in from you folks in regard to 14.100, amending that to include health as one of the defects that we look for, whatever affects health as well as safety, and your views or your perspective on making that amendment, and then not having that blurb appear in the diesel particular rule. MR. SCHEIDIG: Thank you. MR. ALLEN: And I think along the same lines that issue on the training could be addressed under Part 48. MR. CUSTER: I think that as I recall, as you're aware there is the rider which obviously I think is somewhat by the boards now with Part 46. MR. ALLEN: Right. MR. CUSTER: But there was concern that some parts of the metal/nonmetal industry would be automatically exempt, or not exempt from the training but exempt from the enforcement of the training requirement. And I think that's why that was written originally. Is that correct, Deborah? MS. GREEN: I'm sorry, I was thinking of something else. MR. CUSTER: Oh, okay. That's okay. MS. GREEN: What's your question? Please restate the question. MR. CUSTER: The question of Part 40 and including this additional training in the diesel particulate rule, wasn't that done in order to bring into those, bring under the rule those operations that were exempt from enforcement of the current Part 48 regulation as a result of the budget rider? MS. GREEN: My name is Deborah Green. And I work for the Solicitor's Office. I'm counsel for metal and nonmetal. The approach that the Agency took in the proposed rule in reference to training is consistent with its approach it has taken in all of the health rulemakings with regard to training. It's the same in hazard communication. It's the same for any training where we require it in a health regulation. We like to have a separate component to make certain that specific areas of training are covered. Part 48, notwithstanding its application, because it applies to all underground mines. We can -- It applies to all mines but we can enforce it with all underground mines presently. But in the Part 48 training it's not always so specific as to what has to be covered under a particular health regulation. It's not that specific. And the Agency wanted to make certain that minimal requirements for training were covered for purposes of diesel particulate. Now, whether or not that approach is taken in the final rule has a lot to do with looking at the comments of a necessity for the requirement in the final rule. Thank you. MR. CUSTER: Thank you. CHAIRMAN TOMB: I told you, you have eight hours to kill here. (Laughter.) CHAIRMAN TOMB: Okay, anybody else at this end of the table have some questions? MR. CUSTER: No. CHAIRMAN TOMB: Okay, I'm going to go down the table this way. So let me ask a couple, okay? Can you supply us with some information relative to how many pieces of equipment of your 60 pieces of equipment are operating at one time in the mines, you know, during a -- MR. ALLEN: Duty cycle? CHAIRMAN TOMB: -- duty cycle? Yeah. MR. ALLEN: We would make that available I think. CHAIRMAN TOMB: Yeah. I mean I'd expect that. MR. ALLEN: Yeah. CHAIRMAN TOMB: Okay. One thing that I'm a little confused about from both comments that were made at this hearing and the last hearing relative to the Toolbox. What, when you say we should use the Toolbox approach, to be honest with you that's what we tried to do when we wrote the rule. And I'm not clear on what's different from your definition of using the Toolbox to what, I mean the Toolbox approach compared to what yours is or ours is? MR. ALLEN: Well, what we have is we have another rule that we're going to be enforced on. You're setting a standard, says 400, 160. And if we don't meet it. CHAIRMAN TOMB: Yeah, but I mean what is the Toolbox approach? MR. ALLEN: The Toolbox is just simply best practices, if you would. If we're doing this, this and this then we're doing all we can without enforcement. CHAIRMAN TOMB: Okay, with not everybody getting down to trying to achieve the same level; is that what you're saying? Everybody can do what they can do? I'm just trying to clarify this. MR. ALLEN: Yeah, well, because you're going to come into these mines, like I say, you're going to come into northern Nevada and you're going to shut us down. It's plain and simple because of our ore type and everything that hasn't been taken into consideration. And I think in the interim before a Proposed Rule comes out and it gives us some time to have this dialogue on this rule, you know, at least we have something out there that we can be working towards. That's what a toolbox is. A toolbox is not an enforcement tool. CHAIRMAN TOMB: Okay. MR. ALLEN: It's just to get us started and get us all on the same page. And it's not a perfect document. CHAIRMAN TOMB: Okay. We're using toolbox in the definition of the technology out there that has been demonstrated to reduce DPM. And we sort of tried to make that kind of information available to the industry. And the industry can pick and choose that technology that's out there that best suits their operation and gets down to the levels that we've proposed. MR. ALLEN: Yeah. CHAIRMAN TOMB: Okay. And that, I guess the difference is we say that you can use that technology to get down to the level and you're saying you don't want the level specified. MR. ALLEN: Exactly. CHAIRMAN TOMB: The same thing. Okay. Okay, another question that I have relative to your presentation is that you said you spent thousands of dollars in making measurements in your mines. And I was wondering if you could make that data available to us, whatever you've done and what you've found and relative to your specific mine, not as an overall Nevada. MR. ALLEN: Well, we would include that with the Nevada Mining Association when they -- CHAIRMAN TOMB: Okay, is it going to be broken out so that we know what -- MR. ALLEN: Well, I believe that is going to be broken down. Isn't it, Paul? Or are we going to generalize it? Or we haven't even talked about it. MR. SCHEIDIG: We haven't talked about the policy of the underground mines. MS. KING: Excuse me, could you come to the podium so the reporter can get your dialogue? MR. SCHEIDIG: Thanks for helping, Paul. (Laughter.) MR. SCHEIDIG: I misunderstood your question. This is Paul Scheidig. But we haven't yet decided as to how we're going to present all that. I think that Chris Rose and Dave Sheffield at the Salt Lake Hearing made it quite clear that what we'll do is put the data in a form that is somewhat genericized, if you will. That was also sort of agreed to at the Salt Lake meeting. And we haven't yet I don't think decided exactly what form we're going to put that data in. CHAIRMAN TOMB: Okay. MR. SCHEIDIG: But the data will be on the sampling data. I misunderstood, I thought you were talking about some of the cost data relative to -- CHAIRMAN TOMB: No, I just think it would be important that if Mr. Allen's mine has specific information on levels that he measured. You said some of your mines had graphitic ore and others didn't. That seems to be a big component of the interference that we're looking at from the sampling standpoint. And if he's made assessment of his DPM exposures it's my -- I think it would be important to the committee if we had that kind of information. MR. SCHEIDIG: I think you'll get a very good representation from Nevada Mining Association as to the exposure and other data that we found in the Nevada, period, from all mines. CHAIRMAN TOMB: Okay. I would just like to reiterate, and I think I asked this, asked you to do this before, if you can and when you turn in your written comments maybe emphasize for like the maintenance, the training and the -- what was the other one we were discussing? MR. CUSTER: Recordkeeping. MS. WESDOCK: Recordkeeping. CHAIRMAN TOMB: Yeah, the recordkeeping that would be above and beyond, you know, what you'd be doing right now in your particular mine. You know, because I mean you might be doing everything that this rule requires. MR. ALLEN: And speaking from my point of view we may very well but also, you know, it's just another requirement out there. You know, and if you're doing it and if you have a way of already enforcing it, you know, why keep building on it? That's my whole take on it. CHAIRMAN TOMB: Okay, but just realize that every mining situation isn't identical. MR. ALLEN: Oh, I'm -- CHAIRMAN TOMB: All right? And maybe you're the only one that's following "perfect practices." MR. ALLEN: Oh, no, no. CHAIRMAN TOMB: And I'm just using that as an example. MR. ALLEN: All mines do it. CHAIRMAN TOMB: Okay. MR. ALLEN: Just kidding. CHAIRMAN TOMB: I guess my last question would be you mentioned in summing up a more reasonable strategy and that the Agency should follow. And I'm not asking you to answer that question right now. MR. ALLEN: Thank you. CHAIRMAN TOMB: But if you're going to have a summation for your mine that you could submit to us maybe you could be a little specific on that, you know, other than just a more reasonable strategy, you know, what did you have in mind? MR. ALLEN: Okay. CHAIRMAN TOMB: Okay? Jon? MR. KOGUT: Yeah. Please -- Thank you very much for your comments. And I appreciated in particular what you had to say about your concern for potential health effects if they were established. I did get the impression from your comments, though, that you were under the impression that we did not - - that there were no human-based studies linking miners who are exposed to diesel particulates with lung cancer. And that there were no human-based studies establishing a health effect for particulates in general. So there are just sort of two parts to what I want to say. And the first of them is in the nature of a question. Part of what our risk assessment was based on was apart from the literature that directly links diesel particulate specifically to lung cancer or other health outcomes, adverse health outcomes, there is also a large body of literature looking at associations between particles in general, fine particles specifically but particles in general and adverse health outcomes. And the main body of that literature is not occupational but comes from studies on air pollution in various cities and the effects that are seen on air pollution. As a result of those studies and a lot of other research that's been carried out in support of those studies the Environmental Protection Agency has come out with clean air standards that regulate the level of fine particulates in the atmosphere to a limit that's quite a lot lower than not only the concentrations of fine particulate that we've seen in mining environments but even quite a bit lower than what we're proposing to set as a limit here. So the first part of what I want to ask is what is your reaction to these proposed limits in view of the fact that they're considerably higher than the EPA regulations? MR. ALLEN: Well, I think the EPA when they do theirs they look at places like Los Angeles, Spokane, Washington, where you get into a valley down there, there is no air movement. You have all these, especially during the winter your stoves are going full bore, etc. We're moving 200,000 plus cfm through a mine. We are moving air as it is. That's not saying that there aren't some dead headings down there, etc., but still, we have a wind going through that mine at all times. We have ventilation to keep it circulating. And the fact of the matter is we have elements out there that interfere with this carbon reading, okay. Smokers are the biggest health risk going. Are we concerned about miners who smoke? If so, why don't we make all miners non-smoking? It's a proven carcinogen. MR. KOGUT: That's possible. But what I'm talking about specifically is whether it comes from smoke, there's fine particulate in smoke, there's fine particulate in diesel. Now, you know, there's even some amount of fine particulate that comes from the tail end of the size distribution in, you know, from the extracted ore. But the point that I'm making is that EPA saw a need and saw plenty of evidence to justify regulating the concentration of fine particulate to down at the level of, say, 15 micrograms per cubic meter. Now, are you saying that with the, all the ventilation that's available in mining that meeting a limit of 15 micrograms per cubic meter is not a problem or what? MR. ALLEN: I'm saying it is a problem. MR. KOGUT: Yeah. MR. ALLEN: I'm saying it's a problem because we don't live in a perfect world. You know, and there are certain risks associated with every job. If we could remove all the risks or if I could tell you how to do that I'd be worth some money. Okay. But the fact of the matter is, you know, I'm not aware of these studies that you allude to on the human beings. And how long did those studies go? MR. KOGUT: You're talking about the fine particulate in general or? MR. ALLEN: Yeah. Yeah. Well, and the one that you alluded to that said that there was a cause and relationship between health and DPM. The fact of the matter is we know that the cleaner engine these -- or cleaner burning these engines get the smaller and the finer the particulate gets. Okay. Have we in fact increased the exposure of these miners, you know? MR. KOGUT: Okay. I think we'll address that in our response to these hearings. The other part of the point, though, that relates specifically to diesel particulate is that I think you left the impression that there weren't any studies specifically relating or looking for associations between miners and associations with their exposure to diesel particulate and lung cancer. And I wanted to point out to you or suggest that you take a look at tables in the preamble, Tables III-4 and III-5. And part of the purpose of those tables was to do exactly what I think you rightfully suggest that we do do and put this in a language that is easily digested and easily read by not just experts but anybody who is interested in the subject. And certainly the members of the mining community would be. In Tables 3 and 4 there are six studies, a total of six studies identified that look for an association between miners' exposure to diesel particulate or miners and an increased risk of lung cancer. Table III-4 which is a compilation of cohort studies contains two such studies. First there is one by Boffetta, that's B-O-F-F-E- T-A, et al., in 1988. And in that study after adjusting for smoking differences in the cohort, after adjusting for smoking and also adjusting for occupational exposures to asbestos, coal and stone dusts, coal tar and pitch and gasoline exhaust, adjusting for those factors in addition to age and smoking, the relative risk relative to workers who were not miners was found to be 2.67. That means that the risk of lung cancer was 2.67 times the risk in non-miners after making those adjustments. And that's a statistically significant result. The other cohort study listed in that table is one by -- that relates to miners is one by Waxweiler, et al., in 1973 which was on potash miners specifically. I should say that the Boffetta study didn't look just at miners, it looked at a lot of different occupations. And that was, the result I gave was just the one tied to miners. The Waxweiler study in 1973 was done specifically on potash miners. In that study, and we didn't -- we found some shortcomings in that study because there was no smoking adjustment, no allowance made for smoking. There was also no adjustment for any kind of a healthy worker effect. But still the relative risk of miners compared to workers in New Mexico -- or, I'm sorry, the general population in New Mexico was greater than one. And one problem with that study is that the comparison was drawn to the population of New Mexico as opposed -- I'm sorry, to the general U.S. population rather than to the population in New Mexico where these workers resided. And, actually, the lung cancer rate at that time in New Mexico was lower in New Mexico than it was in the general population. So if you adjust for that and make that adjustment then the relative risk compared to population of New Mexico would be about 1.5. That was based on a small sample and so it didn't achieve statistical significance but, again, it's an elevated risk. There are in the next table, in Table III-5, there were four studies identified. All four of those studies showed, all four of those case control studies showed and elevated risk of lung cancer for miners. There's one by Benhamou, et al., 1988, which was adjusted for smoking and showed relative risk of 2.14. And that's statistically significant. There was one by Lerchen, et al., 1987, which was adjusted for smoking. And it showed an odds ratio, an elevated risk of 2.1 for underground non-uranium miners. There was one by, I'm not sure how to pronounce this but the spelling is S-I-E-M-I-A-T-Y-C-K-I, et al., 1988, which was also adjusted for smoking. It showed an elevated risk with an odds ratio of 2.8 for mining. And there is one by Swanson, et al., 1993, which was an extension of a study by, published by Burns and Swanson, 1991, which showed an elevated risk for mining machine operators. And the odds ratio in that study was 5.03 which is quite a large elevated risk. And that's a statistically significant result. That study also was adjusted for smoking. So that's six studies out of six that looked at miners. And all six of those studies although they admittedly differ in the quality of the study they all showed an elevated risk for mining. And some of them were statistically significant results. Now, as we said in the text of the risk analysis, we did not want to do just a simple tabulation of the studies because we recognize that studies differ in quality and you can't just do a tally, you know, and count out how many come out one way and come out another. But even so, the fact that all six of those studies showed at least some elevated risk for miners, you know, that has to raise some concern I would think. What's your reaction to that? MR. ALLEN: There is concern. But once again, you know, several questions are raised. 1973, that was pre the act when metal/nonmetal wasn't, you know, it was out there. What was the ventilation in each one of these mines? What type of, you know, did they have scrubbers on this equipment, on these machine operators? You know, there are questions that just come to mind to me that, you know, they're available out there. So although it does show and elevated, and I'm not going to discount them and say that they're not there, I think that more work needs to be done in conjunction with the mining associations, etc. MR. KOGUT: Okay. And I just wanted to clear up the impression, though, that we were not, you know, that we weren't taking into account any studies having to do with mining and that we were relying entirely on -- MR. ALLEN: Rats. MR. KOGUT: -- rat studies whose, you know, whose applicability to humans might be questioned. MR. ALLEN: Right. But, you know, and my position is I appreciate, you know, the clarification but by the same token I guess I'm from Missouri and on some days you have to show me, you know, what all was included in those studies, i.e., the type of ventilation they moved, type of equipment they were operating. Was it air-cooled equipment as opposed to the water-cooled type? You know, were they in areas where they allowed their equipment to idle? There are a lot of questions I'd have. And I think the mining, we would all have those questions. CHAIRMAN TOMB: Okay, any other questions? Cassandra? MS. WESDOCK: Cassandra? CHAIRMAN TOMB: I'm sorry. MS. WESDOCK: No. You asked all my questions. So I don't have any. CHAIRMAN TOMB: You don't have any? MS. WESDOCK: No. CHAIRMAN TOMB: Okay. Pam? MS. KING: No. CHAIRMAN TOMB: Okay, thank you very much. MR. ALLEN: Thank you. CHAIRMAN TOMB: I'm sorry I couldn't extend this a lot longer. I appreciate your comments though. MR. ALLEN: Thank you. CHAIRMAN TOMB: And really hope that you can supply some details on the information in your final comment submittal. MR. ALLEN: And I think you will see them forthcoming. It just is, you know, this is our first kick at the can. CHAIRMAN TOMB: Yeah, my specific comments are very good to look at. Okay. MR. ALLEN: But I appreciate everybody's attention, questions. And, you know, I do take it personally because I am concerned about the health and welfare of those guys down there as are the other mine companies. And appreciate your attention. Thank you. CHAIRMAN TOMB: Thank you. I think what we'll do at this time, at this time I think we'll take a 15 minute break. If anybody else wants to make a sign-up and make a presentation after we come back, I guess, Bruce, you want, you want to say something? Okay, I will do that. Yes? MR. WATZMAN: Mine will only take two minutes if I'm the only one. CHAIRMAN TOMB: Well, I'll tell you what I'd like to do. I'd like to take a break and then just if anybody else, you know, wants to come or something if it's okay with you. If you wanted to leave I would be glad to give you time to do that. MR. WATZMAN: No, I'm fine. I'm fine. CHAIRMAN TOMB: Okay. Why don't we do that when we come back then and do this. Thank you. (Brief recess.) CHAIRMAN TOMB: If you take your seats we'll get back on the record. Our next speaker will be Mr. Bruce Watzman from the National Mining Association. STATEMENT OF BRUCE WATZMAN, NATIONAL MINING ASSOCIATION, WASHINGTON, D.C. MR. WATZMAN: Thank you, Tom. My name is Bruce Watzman. That's spelled W-A-T-Z-M-A-N. And I'm with the National Mining Association. I did not intend to speak today but based on the discussion that took place previous to the break I felt the need to do so. And I need to start out by asking Dr. Kogut if he would, he referenced six studies that looked at miners' exposure and lung cancer. You named Boffetta and there were five others. And if you could run down the names of those for me, please? MR. KOGUT: I might say, though, that you said that looked at miners' exposure. One of the reasons that we stated in the preamble that we relied more heavily on other studies than on these studies, despite the fact that these related to miners, was that they didn't necessarily look at levels of exposure to diesel particulate specifically. MR. WATZMAN: That's fine. If you could -- MR. KOGUT: Yeah. MR. WATZMAN: -- run down the name of, the six names. MR. KOGUT: You have the Boffetta, et al.? MR. WATZMAN: I have Boffetta. MR. KOGUT: Okay, the next one which is in the same table, that's in Table III-4, is Waxweiler, et al. That's W-A-X-W -- MR. WATZMAN: I have that. I'm going through the references in the rule and I'm trying to identify them. So if you could just give me the six names. MR. KOGUT: Oh, okay. MR. WATZMAN: And I'll circle them as you go. MR. KOGUT: Benhamou. That's B-E-N-H-A-M-O-U. MR. WATZMAN: Say that one more time? MR. KOGUT: I don't know how to pronounce it. It's B as in ball. MR. WATZMAN: Oh, B. MR. KOGUT: -- E-N-H-A-M-O-U, et al. MR. WATZMAN: Okay. MR. KOGUT: 1988. MR. WATZMAN: Thank you. MR. KOGUT: Lerchen, et al. That's L-E-R-C-H-E-N. MR. WATZMAN: Okay. MR. KOGUT: Siemiatycki. MR. WATZMAN: Right. MR. KOGUT: Okay. And Swanson, et al. MR. WATZMAN: Swanson. And those were the six that you drove, you made specific reference that those six studies were used in the preparation of figures III-4 and III-5; am I correct? MR. KOGUT: No. It's not, no, not figures. They were included in the tabulations in tables III-4 and table III-5. MR. WATZMAN: In the risk assessment, not the tables of exposures? MR. KOGUT: No, this has nothing to do with exposures. MR. WATZMAN: Okay. MR. KOGUT: This has to do with the risk assessment. So it's tables III-4 and III-5. MR. WATZMAN: Okay. MR. KOGUT: Which are a table of cohort studies and case control studies. MR. WATZMAN: And of the six studies that you mentioned how many of them were specific to miners as opposed to looking at miners as one of the populations looked at? Of those six how many looked only at the miner population? MR. KOGUT: Let's see. I think it may only have been Waxweiler. Let me verify that. MR. WATZMAN: Only Waxweiler. So then there really is only as far as you know and as what's contained in your reference documents, only one study that looked at the miner population? MR. KOGUT: I'm just verifying that. Yeah, all six of these looked at the miner, population of miners as subpopulations of larger populations. They all looked at miners. But only that one looked exclusively at miners. MR. WATZMAN: Okay. That's what I needed to know because that was my reading of them. Yet you gave the impression that those six studies, at least you gave the impression to me sitting in the audience that those six studies looked at miners as a population and studying the exposure to diesel particulate matter and the incidence of lung cancer. MR. KOGUT: They did do that. They did look at miners but they also looked at -- MR. WATZMAN: Not solely miners. Only one of them looked solely at miners? MR. KOGUT: Right. MR. WATZMAN: Okay. That's what I wanted to clarify that. The other matter, Mr. Chairman, that I wanted to mention is you have asked here as you did in Salt Lake City for mining companies to provide information to the panel. In some instances very specific information. And I think to the degree that they can do so they will provide that information. But I have to let you know that earlier this year I obtained from the agency the 25 metal/nonmetal studies that served as the basis for Figure III-4 in the preamble and the 12 I believe it was underground coal surveys conducted by the Agency that serve as the basis for the range of exposures for underground coal miners. Additionally, I received copies of the surveys that the Agency conducted that were not included in the preparation of these tables. Following my review of those I've submitted two follow-up letters to the Office of Standards and the Acting Director Carol Jones. The first letter was submitted in February. The second letter was submitted in March. I have yet to receive responses to those letters. The information I have requested is central to us completing our review of this rule by the July 26 deadline. I'm going to be submitting requests for additional information. I'd like to know what sampling MSHA has conducted using the NIOSH 5040 method for analysis. We'd like the results of those samples -- that sampling, just as you've asked that of the industry. We'd like to know the organic component of those samples, the elemental and the total. We'd like to know the loadings on those filters. We'd like to know whether those filters, if there was a belief that they contained carbonaceous ores, if those filters were acid washed prior to them being analyzed. So there is a wealth of information that you may have that we'd like to review at the same time so that, hopefully, at some point we will come to some meeting of the minds regarding the utility or lack thereof of the NIOSH 5040 method. But these requests are pending with the Agency, at least two of them. I want to know of the 25 metal/nonmetal surveys that were conducted, the preamble makes reference to the fact that all but two of them were analyzed using the RCD method. I want to know the validity of that in terms of the NIOSH 5040 method. We know that the RCD method burns the filters at 400 degrees. We also know today that there are carbonaceous ores that don't burn off until in excess of 900 degrees. What impact does that knowledge have on the validity of this table? So -- MR. HANEY: In response to your question -- CHAIRMAN TOMB: Let him finish, okay. MR. WATZMAN: Go ahead, Bob. MR. HANEY: in response to your question the RCD method uses the amount that was burned off, not the amount as Mr. Ing incorrectly said in his testimony in Salt Lake, the remaining. Therefore, by burning the sample off at 400 degrees we remove only the diesel particulate, we do not remove the carbonaceous material which as you correctly said does not burn off until 900 degrees. MR. WATZMAN: Do we remove other confounders that may be on the filter so that we know at that point that only the diesel particulate is remaining? MR. HANEY: We know that it removed the organics. There are also several minerals such as bicarbonates and gypsum where it has moisture hydration which also comes off at those temperatures. So that's why we recognize that the RCD method is not a universal method. But for most of the studies that are shown on that table RCD is an appropriate method of analysis. MR. WATZMAN: When you say for most of them, Bob, is it appropriate method of analysis for the 23 that use the RCD? And what method of analysis was used for the two that did not use the RCD method? I mean these are some of the things that I've laid out in the letter. And, you know, if it's as easy to answer as you just implied to me then I don't know why it has taken as long as it has for me to get a response to the inquiries that I have before the Agency. And that's all I'm asking. If we can't get this information then I can guarantee you that come the end of July we're going to be coming to the Agency and saying we need more time. CHAIRMAN TOMB: Okay, let me have -- MS. WESDOCK: Tom. Tom. CHAIRMAN TOMB: Yes? MS. WESDOCK: I, Mr. Watzman, in regards to your four letters it is my understanding -- MR. WATZMAN: Three letters. MS. WESDOCK: Well, there was one dated April 1999 that we just, we received not too long ago. MR. WATZMAN: That's correct. MS. WESDOCK: It is my understanding that all those letters have been answered and forwarded to you. If you have not received those letters, the responses, please let us know. But those letters have been answered. MR. WATZMAN: Well, I can tell you as I stand here that by the -- when I left my office close of business last Friday I had not received responses to two of the four letters. MS. WESDOCK: Well, please let us know because as I'm sitting here before I left my office for this hearing I surnamed the last letter of April 1999. If, like I said -- MR. WATZMAN: That's the only response that I've received. MS. WESDOCK: Then you should have received the February, the two letters in February and the March letters because we also surnamed those letters. So they should have been out. MR. WATZMAN: Well, then maybe it would just be simpler if you're sure that you've already sent me responses if early next week you could send me copies of the responses. MS. WESDOCK: We'll do so. CHAIRMAN TOMB: Go ahead, Jon. MR. KOGUT: I just wanted to clear up one question that you said that you asked about in the letter. I don't know if I can clear up the other one about whether the RCD is appropriate for the 23 mines that it was used for. But with regard to the two in which the RCD was not used I think you asked what method was used for those two. And in the caption to Figure III-2, three dash two, which utilizes exactly the same data as what went into Figure III-4, it says that measurements at mines other than D and T were made using the RCD method. Measurements at mines D and T which are the remaining two mines were made using the size- selective method based on gravimetric determination of the amount of submicrometer dust collected with an impactor. MR. WATZMAN: Fine. Thank you. CHAIRMAN TOMB: Also, one comment that I can add maybe, Bruce, is that most of those comments came down to our office for response. And I had looked at the material for response. And if you, my opinion is if you look at the reports closely, okay, all the data is in there that can answer the questions that you. Not that we, not that -- not that we're reluctant to answer the questions specifically, but I'm just saying to do that I went to the reports to respond to them. So that material is in there and if somebody is reading it you can find out what samples were RCD samples, what samples were size-selective samples, and what samples were analyzed for elemental and organic. The data is there. Okay? We're not pulling the data to answer those questions is not coming from anyplace else. Is that correct, Bob? MR. HANEY: Yes. CHAIRMAN TOMB: Okay. MR. WATZMAN: Okay. CHAIRMAN TOMB: So I'm just saying it's -- and the data was, the individual reports that you asked for was submitted as soon as we could get it out to you. And you've had it quite a while, so. MR. WATZMAN: That's correct. CHAIRMAN TOMB: Yes. Okay. MR. WATZMAN: And that's -- CHAIRMAN TOMB: And we'll be happy to answer the -- MR. WATZMAN: That served as the basis for the -- CHAIRMAN TOMB: Yeah. MR. WATZMAN: -- two follow-up letters. CHAIRMAN TOMB: We'll be happy to answer any questions you have. But I'm just saying all what we do to go back, to be honest with you, we go back to those reports because that's the documentation that was there when we compiled the data for the preamble. MR. WATZMAN: Okay. Tom, on my last question, has the Agency conducted, have you analyzed based upon samples you've taken diesel particulate using the NIOSH 5040 method? CHAIRMAN TOMB: Yes. MR. WATZMAN: Will you share those with the industry, the results of that sampling? They are not -- CHAIRMAN TOMB: You mean other than what's in, what already out there in those reports? MR. WATZMAN: Yes. Have you conducted sampling -- You did not sampling using the NIOSH 5040 method in preparation for this? CHAIRMAN TOMB: Yes, we did. MR. WATZMAN: Or it's not contained in here, the results of which are not contained in here. (Pause.) CHAIRMAN TOMB: Do they have that information? MR. WATZMAN: I mean, if I go to the table we've been talking about, III-4, and the 25 surveys, 23 were RCD and two were by another means. None of them were analyzed, none of those samples used in the preparation of that table were analyzed using the NIOSH 5040 method. CHAIRMAN TOMB: Okay. Right. MR. HANEY: I believe we had forwarded you an electronic copy of the data that we used that contained the results of the multiple sampling. MR. WATZMAN: No, you have not. MR. HANEY: I believe we have. MR. WATZMAN: I never requested that. What I requested was the studies that served as the basis for Figure III-4. CHAIRMAN TOMB: Okay, but somebody when it came across my desk, the questions, you specifically asked for information relative to the method 5040. And I went back to those reports. And whether that data was used in here or not I can't -- I think Jon and Bob put the tables together - - but I know that date is in those reports. I mean, if we go out and do it -- MR. WATZMAN: Tom, some of these reports that serve as the basis for Table III-4, these surveys pre-date the NIOSH 5040 method. CHAIRMAN TOMB: Yeah, but then, then if there's carbon data presented then those reports wouldn't have carbon data in them. MR. WATZMAN: Forget these reports for a minute. All I'm saying is can we get from you -- CHAIRMAN TOMB: Yeah, you can get it. MR. WATZMAN: -- any subsequent information -- CHAIRMAN TOMB: Right. MR. WATZMAN: -- you have developed where you utilized -- CHAIRMAN TOMB: Yes. MR. WATZMAN: -- the NIOSH 5040 method -- CHAIRMAN TOMB: Right. MR. WATZMAN: -- to analyze samples? CHAIRMAN TOMB: Yes. But my comment on that is we will look. But I think you have all of that data already in those reports. And if there isn't carbon data presented then the samples that were reflected on that survey were not analyzed using method 5040. MR. WATZMAN: Go ahead, Bob. MR. HANEY: The reports that you have that weren't included in the preparation of this table, there was half a dozen or a dozen subsequent studies, those are the ones that would have the carbon data in it. There are a few of these that are used that have carbon data in it but because there was not that many it was not included in these tables. But the subsequent reports is where you will find the carbon data. MR. WATZMAN: Those are the reports we'd like. MR. HANEY: We've provided those already but if they're not sure let us know what you still need. MR. WATZMAN: Okay. I'm not -- I was -- I, my impression was the reports I got were the ones that were specific to the preparation of these tables. MR. HANEY: I believe we sent you everything to date that we had even if it wasn't included in these tables. MR. WATZMAN: Okay. Have you done any additional sampling using the NIOSH 5040 method? MR. HANEY: I would say maybe two or three mines since then. MR. WATZMAN: If we could have those as well. CHAIRMAN TOMB: Okay. MR. WATZMAN: Thank you. CHAIRMAN TOMB: Let me ask you a question. (Laughter.) MR. WATZMAN: No. CHAIRMAN TOMB: Since we are going to supply you all this data are we going to get all this data back from what we requested? You don't have to come to the podium to answer that. MR. WATZMAN: Tom, I think that, you know, I can't speak for the individual companies. CHAIRMAN TOMB: I know. MR. WATZMAN: And some of whom represented the two associations yesterday, others of which appeared on their own. Each company will make its own determination. I'm sure that to the degree they feel that they can share the data in the format that's useful to you they will. And we will do the same. As far as obtaining the sample filter medium themselves, I doubt if many companies have those. CHAIRMAN TOMB: Fine. MR. WATZMAN: Or if the labs retained those. And I doubt -- CHAIRMAN TOMB: We understand that. If they don't have it and they can't supply it -- MR. WATZMAN: Yeah. CHAIRMAN TOMB: -- then that's an explanation. MR. WATZMAN: But to the degree they'll share the information with you, I'm sure they will. Our objective is the same here. I mean we're really not at odds. We want to arrive at a useful program, a reliable program and a verifiable program. We don't think that exists today. And through the sharing of this data if we can arrive at that we're all better off. CHAIRMAN TOMB: Okay. The data that we have, why we're so concerned is the data that we have using the NIOSH method, all right, we have not found the same degree of problems, okay, not that there may not be some interferences. We're not saying that. Okay, any analytical method has some interferences when you go out to sample. And it's subject upon the analysts, okay, providing you give him the information that you get the reliable number back or you don't get a reliable number back. And if the Agency didn't get reliable numbers back then they couldn't withstand a court challenge for a citation, okay, then that wouldn't be used to issue or the basis for a citation. But, you know, we're right not at the point where we see the majority of the samples that we collect and analyze -- I don't want to say a majority. That looks at sometimes 50 percent. The preponderance are, the preponderance of the information we have says that the NIOSH 5040 method is a viable method for determining total carbon in mine environments, not coal mine, other than coal mine environments. All right. Now, we're seeing other information that's coming in, all right, that says, hey, there's problems out there and we have all this data available. And we need that data. And we need the specificity of the data because, you know, we're going to go back to NIOSH and we're going to say, you know, here's a method you recommended for elemental carbon and for total carbon. And now we're finding that we have these problems when we use it in these certain mining situations. And, you know, we're looking to get the right answer, you know. MR. WATZMAN: Understood. CHAIRMAN TOMB: Do we or don't we have a good method to use? And that's why, you know, we're not trying to pinpoint people to come in and say, you know, we're going to challenge that data. That's not what we're looking for. Okay. But, you know, what are the problems with the method, if they're there? And can they be corrected? MR. WATZMAN: I understand that, Tom. I will tell you again, to the degree they can share it, they will. Our experience and our track record has not been very good. And I can only go back to the noise proceeding where we as an industry undertook a very detailed audiometric study of some 6,000 miners and presented the results of our study to MSHA. And MSHA then turned around and went to Dr. Franks at NIOSH and said, Will you please critique this study? And NIOSH's critique of our study then became a part of the rulemaking record. And then we had to rebut Dr. Franks' work. So recognize that we don't walk into this process everyone with clean hands. And there are some scars that have to be overcome. And to the degree that companies feel that they can share this freely with you, they will. CHAIRMAN TOMB: Yeah. Okay. Well, that's all we can ask. You know, that information I can only point out is valuable to us for developing the Proposed Rule. All right. And if all our data says we can go out to a mine and make a appropriate measurements that we think could withstand an enforcement action, if we don't have any other data that we can look at that sort of says, Hey, you know, there's problems with the method, this is it, or where we can intelligently sit down and discuss with people what the differences are between the way we're looking at the data and you're looking at the data, that doesn't do us any good. That's the problem. MR. WATZMAN: I agree. CHAIRMAN TOMB: So. MR. WATZMAN: I agree. CHAIRMAN TOMB: We appreciate your comments. MS. WESDOCK: Mr. Watzman. MR. WATZMAN: Yes? MS. WESDOCK: Once you go back to your office if you, you know, go and if you don't have the information that you requested just now as regarding, you know, the 5040 method that you were asking here, if you don't have it please let us know and that information will be forwarded to you. MR. WATZMAN: I have two stacks of information on diesel that probably are smaller than Bob Haney's but each of one of which is probably on the lines of two feet tall at this point. If Bob knows readily and has handy the studies that he's talking about it would be much simpler just to get copies. MS. WESDOCK: Okay. MR. HANEY: There may be some sent that you already have just to make sure you've got them. MS. WESDOCK: That's okay. I mean if we -- we'll make sure that you have the information. MS. GREEN: For the record, and this is -- I'm Deborah Green again from the Solicitor's Office. Rather than have you go through your data to look for whether or not you have it, send him another copy. The Agency will send it to you. MR. WATZMAN: Thank you. MS. GREEN: That's the bottom line. MR. WATZMAN: Thank you. Thank you. CHAIRMAN TOMB: Mr. Sheffield, I guess you -- MR. SCHEIDIG: No, it's Scheidig. CHAIRMAN TOMB: I mean Scheidig. I'm sorry. MR. SCHEIDIG: That's okay. CHAIRMAN TOMB: You want to do an hour's presentation? MR. SCHEIDIG: No, I don't want to do an hour's presentation. CHAIRMAN TOMB: Okay. MR. SCHEIDIG: This works out really well for me -- CHAIRMAN TOMB: We'll give you time. MR. SCHEIDIG: -- because I have to go to Vegas today and I was hoping this wasn't going to be until 5:00 o'clock like Salt Lake. But there's one item that was raised earlier with regards to the EPA rulemaking on fine particulate matter. I think that I am sort of curious as to whether or not MSHA is really relying on that for the basis of this particular rulemaking, especially in light of the fact that it should be clarified that, number one, that rulemaking was promulgated. However, the President, Mr. Clinton, postponed that rulemaking till -- and I can't remember the date, but sometime in the first decade of the year 2000. So it was postponed for some time for implementation because of some of the issues relative to implementation as well as a number of issues relative to some of the health and other related aspects that the industry and others raised. In fact, that particular rulemaking is under litigation right now because of the fact that the industry, many different industries, not just mining, believe that there is substantial evidence that the rulemaking was not done with and using good science and good techniques. And I think the CASAC study that was used to sort of underscore that by EPA, you know, wasn't necessarily, it was just a simple majority of the CASAC members that felt there was some substance to the 2.5 micron size parameter for rulemaking. But I think there's some real questions there. Using that as a reference to why you're going forward with this particular rulemaking maybe certainly inappropriate, certainly premature and maybe unfounded at this stage of the game. And I don't, I didn't see any real references in the rulemaking relative to that particular study, or to that rulemaking anyway. CHAIRMAN TOMB: Well, let me say something along - - let me say something, a comment. MR. SCHEIDIG: Yeah. CHAIRMAN TOMB: The Agency is not relying as far as with respect to the preamble as that for the basis for this rulemaking. I think though that this preamble presents a preponderance of information that says, that the Agency has interpreted to say that high exposures to diesel particulate matter present a health hazard to people -- MR. SCHEIDIG: Right. CHAIRMAN TOMB: -- that are exposed to those exposures and that the Agency doesn't know what the absolute safe level is. All right. But there are studies out there other than miners that have linked exposure to DPM to other health risks. All right? And, consequently, what this rulemaking is trying to do is to get the exposure of miners down to at least those levels, those levels at which at least we know other people -- MR. SCHEIDIG: Okay, I just point it out. CHAIRMAN TOMB: Okay, not getting it down to 15 or to 20, a small particulate, a fine particulate standard of 15 or 20 microns. MR. SCHEIDIG: Tom, I understand that. I just think I wanted to clarify for the record the fact that I think that you as panelists, you know, hearing the testimony of the public on this that, you know, you should maybe be careful in terms of what are the references you might bring into the record that really don't have any bearing or have minimal if not minuscule bearing on this particular issue unless you have some, some rational evidence that you've already provided to the public that says that the EPA studies on 2.5 are included and substantive to this issue. And I don't recall anything, reading anything about that nor ever hearing anything about that. So I just wanted to clarify for the record that that's not an issue. CHAIRMAN TOMB: Okay. Jon, do you have a comment on that? MR. KOGUT: Yeah. I just want to direct your attention to a few sections of the risk assessment that was published in the preamble. If you look at the -- on page 58,145 of -- MR. SCHEIDIG: Hopefully somebody is going to write this down. CHAIRMAN TOMB: You can have my copy. MR. SCHEIDIG: I've got to go get my glasses. MR. KOGUT: On page 58,145 of the "Federal Register" notice there is a table of contents, a separate table of contents for the risk assessment, which is Section III of the preamble. MR. SCHEIDIG: Right. Under lung cancer. MR. KOGUT: Okay. MR. SCHEIDIG: Under just characterization of risk. MR. KOGUT: No. The table of contents covers the entire risk assessment. MR. SCHEIDIG: Oh. Okay. MR. KOGUT: And the sections in that table of contents that I want to direct your attention to are, first of all, Section 2.a.ii., which is in -- I'm sorry, small Roman numeral iii, which is entitled "Relevant of Health Effects Associated with Fine Particulate Matter in Ambient Air." MR. SCHEIDIG: Okay. MR. KOGUT: And then below that in, under Section 3 in the table of contents, Roman numeral small ii or Roman numeral two, "Excess Risk of Death from Cardiovascular, Cardiopulmonary, or Respiratory Causes," the evidence for that section is taken from the air pollution studies. And it's also addressed in, let's see, did I say Roman -- I said that one. Okay. Also in Section III.3.c., entitled "Substantial Reduction of Risk by Proposed Rule." The first part of that section deals with a quantification of the potential health impacts of the rule on reducing -- MR. SCHEIDIG: That's referring to this Proposed Rule; correct? MR. KOGUT: It's referring to this -- MR. SCHEIDIG: Yeah. MR. KOGUT: -- Proposed Rule based on reduction in diesel particulate in their capacity as a fine particulate. The whole first part of that section relates exactly to what you were talking about, and it's based on the air pollution studies on fine particulates. It makes reference to Tables III-2 and in particular III-3. Table III-3 at the end of that risk assessment section is entitled "Studies of Acute Health Effects Using Gravimetric Indicators of Fine Particles in the Ambient Air." So I believe all of that material is directly in support of what you were talking about. MR. SCHEIDIG: Well, I won't disagree with you there. I'm just saying that's only a portion, probably of, you know, not having read through all those. But I would venture to guess having done quite a bit of work in the air quality arena in my environmental side of my business that that's only a very small portion of what EPA relied on to promulgate its rulemaking. And so there's a lot of other things that come in to bear, come into play with regards to EPA's rulemaking on 2.5 that is not necessarily referenced nor included in this record or the preamble. There are a couple of references to fine particulate study. But I don't know that as a public reading this whether or not that's all-inclusive for everything that was included in the PM 2.5 record or not. MR. KOGUT: That's, it would be very helpful to us if you did do a careful review of those sections. MR. SCHEIDIG: Okay. MR. KOGUT: And if you find that we left out an important body of material we would very much appreciate in your post-hearing comments -- MR. SCHEIDIG: But like I said -- MR. KOGUT: -- letting us know -- MR. SCHEIDIG: Yeah. MR. KOGUT: -- what other material we should consider. MR. SCHEIDIG: I think you'd be very careful here in the sense that, number one, the CASAC group that basically underscored a lot of these studies for the EPA's rulemaking did not do that, only as a very simple majority was there concurrence, there was a lot of disagreement with even that scientific body as to whether or not all of those studies were relevant or consistent with their finding and their rulemaking. Secondly, is that that rulemaking was put in abeyance for some period of time. And to try to bring some of that into this record at this time I think would be certainly premature and violating sort of the idea of what President Clinton established of not promulgating that rule any sooner than sometime at least I know it's, you know, like 2005, 2008, somewhere in that period. So I just urge this panel and MSHA to be very careful with how they use references to the EPA 2.5 rulemaking. MR. KOGUT: I think that what we are making reference to is not so much the rulemaking but the underlying studies that the rulemaking that they did have relied upon. So I don't think -- MR. SCHEIDIG: Okay. I get it, yeah. MR. KOGUT: -- we're relying on the fact that they promulgated a standard. But we are relying to some extent on the underlying studies. MR. SCHEIDIG: But your statement earlier was based on the promulgation of a standard because you asked a specific question relative to that standard. MR. KOGUT: That's -- I don't remember exactly what I said but I think, as I said before, if there are bodies of evidence related to that rulemaking that you think we should be considering additional bodies -- MR. SCHEIDIG: I understand. Yeah. MR. KOGUT: -- of evidence we'd like to know about it. MR. SCHEIDIG: We'll take a review and get back to you. But I hope that's clear in terms of what I was trying to get at here too. Thanks very much for your time today. MR. KOGUT: Thank you. Would you like a copy of that? MR. SCHEIDIG: I do have a copy. MR. KOGUT: Okay. MR. SCHEIDIG: I just didn't have it right with me at the moment. CHAIRMAN TOMB: Do we have anybody else in the audience that would like to make comments relative to the proposed, these Proposed Rules? (No response.) CHAIRMAN TOMB: Okay, what we're going to do is we're going to close this hearing until 12:00 o'clock. We're going to come back at 12:00 and see if anybody else -- we'll have a notice on the door, so if you know of anybody that's coming, let us know. But we are going to give sufficient time for maybe other people that are coming distances and so forth to get here and have the opportunity to make a presentation. For those of you that are here and that are not going to be coming back, I want to thank you for coming, whether you made a statement or didn't make a statement. If you, as I said in the opening statement, if you want to make a statement you have until July 26 to get it in and it will be considered by the committee. We are also, we would welcome you to make oral comments at the other public hearings that we're going to have on this proposed rule later this month. So thank you for coming. Thank you for your attention. And, hopefully, all of us together can come out with a good rule on this. Thank you. (Whereupon, at 10:53 a.m..m., the hearing was recessed, to reconvene later this same day.) \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ A F T E R N O O N S E S S I O N (12:55 p.m.) CHAIRMAN TOMB: Okay, we're going to open the record and see if there is anybody else in the audience who would like to make a presentation. (No response.) CHAIRMAN TOMB: And since we have nobody else signed up for attendance at the meeting since noon and nobody indicates they want to make a presentation we are going to close this hearing for the day. (Whereupon, at 12:56 p.m., the hearing was concluded.) \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ \\ REPORTER'S CERTIFICATE CASE TITLE: 30 CFR PART 57, DIESEL PARTICULATE MATTER EXPOSURE OF UNDERGROUND METAL AND NONMETAL MINERS; PROPOSED RULE HEARING DATE: May 13, 1999 LOCATION: Albuquerque, New Mexico 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 Mine Safety and Health Administration. Date: May 15, 1999 Raymond M. Vetter Official Reporter on behalf of Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005