U.S. DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION PUBLIC HEARING FOR ) ) PROPOSED NOISE STANDARDS ) Pages: 1 through 95 Place: St. Louis, Missouri Date: May 8, 1997 U.S. DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION PUBLIC HEARING FOR ) ) PROPOSED NOISE STANDARDS ) Harley Hotel 3400 Rider Trail S. St. Louis, Missouri Thursday, May 8, 1997 The parties met, pursuant to the notice of the Moderator, at 9:00 a.m. BEFORE: MICHAEL VALOSKI Moderator APPEARANCES: MSHA Panel: JAMES CARTER, Metal and Nonmetal VICTORIA PILATE, Office of Standards, Regulations and Variances MARVIN NICHOLS, Health Division MICHAEL VALOSKI, Office of Technical Support JACK POWASNIK, Solicitor's Office ROSLYN FONTAINE, Office of Standards, Regulations and Variances VERNON GOMEZ ROBERT THAXTON ADDITIONAL APPEARANCES: SPEAKERS: ELLIOTT BERGER, Senior Scientist, Auditory Research with Aearo Company JOE URBAN, Regional Deputy Director of Organizing in the midwest, the United Mine Workers of America BUTCH OLDHAM, International Representative, United Mine Workers DON KUNKEL, Safety Committee Chairman, Local 15, UMWA DUANE CHILDERS, Representative, United Mine Workers Local Union 2305 EDWIN WYATT, Peabody Coal Company, Camp 11 Mines TYRUS BECKER, Local Union President, United Mine Workers Local 2412 DENNIS WALLACE, Local President Camp 11, Peabody Coal Company, Overfield, Kentucky EUGENE GROSS, President, Local Union 1071, Union Town, Kentucky, Salmon Creek Coal Company RANDY HENRY, Union President, United Mine Workers Local 12 JIM DUNN, Chairman, Safety Committee in Local 1793, Peabody Coal Company WAYNE THOMPSON RANDY WILDERMUTH, Safety Committeeman, Consolidation Coal, Burn Star Number 4 Mine in Cutler, Illinois PAT LEET, Peabody Coal Company, Camp 9, Union County, Waverly, Kentucky MIKE DILLINGHAM ADDITIONAL APPEARANCES: SPEAKERS: WILLIAM HUBIAK, Grand De Malaney Company JAN OSTERUD JEFF GURLEY, Safety Supervisor P R O C E E D I N G S (9:00 a.m.) MR. GOMEZ: Let's get this thing started. First of all, I'd like to announce it's a little warm in here, we're going to leave that door back in the back open. If it becomes a problem, like noise outside or whatever, let us know and we'll close it. But in the meantime, we'd kind of like to leave it open, because it is a little warm in here. Anyway, to start my part of the presentation, once again, good morning. I'm Vern Gomez, the Administrator for Metal and Nonmetal. Welcome to MSHA's public hearing on its proposed standards for occupational noise exposure in coal, metal and nonmetal mines. The members of the panel are; to my left here, and not necessarily in the order that they're sitting in, Robert Thaxton, from Coal Mine Health and Safety, James Carter, from Metal and Nonmetal Health and Safety, Mike Valoski, from the office of Technical Support, Roslyn Fontaine and Victoria Pilate, from the office of Standards, Regulations and Variances, and Jack Powasnik, from the office of the Solicitor. For this session the Moderator will be Mike Valoski. We are here to listen to your comments on the December 17, 1996, proposed rule, revising certain portions of the existing health standards for occupational noise exposure in coal and metal and nonmetal mines. The hearings are to be held in accordance with Section 101 of the Federal Mine Safety and Health Act, 1977. As is the practice of this agency, formal rules of evidence will not apply. MSHA published an Advanced Notice of Proposed Rulemaking on December 4, 1989, as part of the agency's ongoing review of its safety and health standards. The agency's existing noise standards which were promulgated more than twenty years ago are inadequate to prevent the occurrence of occupational noise-induced hearing loss among miners. In the Advanced Notice of Proposed Rulemaking the agency solicited information for revisions of the noise standards for coal and metal and nonmetal mines. The comment period closed July 15, 1990. On December 17, 1996, in response to information received on the Advanced Notice of Proposed Rulemaking, MSHA published a proposed standard. The agency has developed a proposal that it estimates can reduce by two-thirds, the numbers of miners currently projected to suffer material impairment of their hearing, but which it estimates can be implemented at a cost of less than nine million dollars ($9,000,000.00) to the mining industry as a whole. The focus of the proposal is on the use of the most effective means to control noise. Engineering controls to eliminate the noise or administrative controls. For example, rotating miners' duty to minimize noise exposure whenever feasible. The proposed standard would retain the existing permissible exposure levels, the PEL. It would also establish a new action level of eight hour time weighted average at 85 dBA. If a miner's exposure exceeds the PEL, the proposed rule would require that the mine operator use feasible engineering and administrative controls to reduce the noise exposure to the PEL. If engineering and administrative controls do not reduce the noise exposure to the PEL, the operator must use these controls to lower exposure to as close to the PEL as is feasibly, -- as is feasible or achievable. In addition, the operator should have to provide any exposed miner annual audiometric examination, properly fitted hearing protection and ensure that the miner takes the annual audiometric examination and uses such protection. The comment period was extended from February 18, 1997 to April 21, 1997, due to the requests from the mining community. MSHA has received a broad range of comments from over sixty different interests which include mine operators, industry trade associations, organized labor, colleges and universities and noise equipment manufacturers. The comments addressed the primary provisions of the proposed rule, such as the action level, the PEL, methods of compliance, exposure monitoring and audiometric testing. Exposure to noise is measured under Proposed Section 62.120. The Proposed Section would require that a miner's noise exposure not be adjusted for the use of hearing protectors; that a miner's noise exposure integrate all sound levels from 80 dBA to at least 100 dBA during the miner's full work shift, and that the current 5 dBA exchange rate to measure the level of the miner's noise exposure could continue to be used, -- would continue to be used. An action level of (85) during any work shift or equivalent, a dose of 50 percent would also be established under the proposed rule. For miners who are exposed to the 85 dBA action level, the proposed rule does not require the use of engineering and administrative controls. Rather, operators would be required to provide personal hearing protection. Upon a miner's request, an annual employee training and enrollment in the Hearing Conservation Program. The proposed rule would also retain the existing PEL of 90 dBA, requiring that no miner be exposed to noise exceeding a time-weighted average of 90 dBA(s) during any work shift, or equivalently, a dose of 100 percent. While PEL would not change the action required if noise exposure exceeds the PEL are different from the current requirements. MSHA's existing metal and nonmetal noise standards, for example, already require the use of feasible engineering or administrative controls when a miner's noise exposure exceeds the PEL. The existing standards, however, do not require the miner operator to post a procedure for any administrative controls used; to conduct specific training or to enroll miners in a Hearing Conservation Program. Under MSHA's current coal mining standard a citation is not issued when a miner's exposure exceeds the PEL, if appropriate hearing protection is being used by the miner. In the event a violation of the coal mining standard, operators are required to promptly institute engineering or administrative controls and to submit to MSHA a plan for the administration of a continuing, effective Hearing Conservation Program. The proposed rule would establish a hierarchy of controls for all miners when exposure exceeds the PEL. In addition, other aspects of the rule increase protections to miners and further reduce the potential for hearing loss. Under the proposal, mine operators must first utilize all feasible engineering controls and administrative controls to reduce sound levels to the PEL, before relying on other controls to protect against hearing loss. Furthermore, an operator would be required to ensure that a miner whose exposure exceeds the PEL takes the hearing examination offered to enrollment in the Hearing Conservation Program. Under Proposed Section 62.120(f), MSHA would require operators to establish a system of monitoring which would effectively evaluate each miner's noise exposure. The proposal would also require that within fifteen calendar days of determining whether a miner's exposure exceeded, -- that a miner's exposure exceeded the action level, the PEL, the dual hearing protection level or the ceiling level, the mine operator notify the miner in writing of the over exposure and the cooperative action being taken, pursuant to Section 103(c) of the Act. The proposed rule also provides for hearing protection in the training. Under Proposed Section 62.125, miners would be given a choice from at least one month type and one plug-type (A) hearing protector. Under Section 62.130, miners would be given required training. Additionally, under Proposed Section 62.140, operators would be required to offer baseline audiograms to miners enrolled in a Hearing Conservation Program. That is, when a miner's exposure exceeds the action level. Prior to conducting the baseline audiogram, operators would be required to make certain that miners have at least a fourteen hour period where they are not exposed to workplace noise. Use of hearing protections as substitute for this quiet period would be prohibited. The proposed rule would also require mine operators to offer a valid audiogram at intervals not exceeding twelve months, for as long as the miner remains in the Hearing Conservation Program. Proposed Section 62.150, would require the operator to ensure that all audiometric testing is conducted in accordance with scientifically validated procedures. MSHA would also require that audiometric testing records be maintained at the mine site for the duration of the effective miner's employment, plus, at least six months thereafter. Under Proposed Section 62.160, operators would have thirty days in which to obtain audiometric testing results and interpretations. Additionally, under Proposed Section 62.180, MSHA would require that unless a physician or an audiologist determines that a Standard Threshold Shift is neither work-related nor aggravated by occupational noise exposure within thirty days of receiving evidence of the Standard Threshold Shift or results of a re-test confirming a Standard Threshold Shift, the operator must do the following: retrain the miner; allow the miner to select hearing protectors or a different hearing protector; and receive effectiveness of any engineering and administrative controls to identify and correct any deficiencies. Proposed Section 62.190 would require that within ten working days of receiving the results of the audiogram or receiving results of a follow-up evaluation, the operator notify the miner in writing of the results and interpretation of the audiometric test, including, (1) any finding of a Standard Threshold Shift or reportable hearing loss; (2) if applicable, the need and reason for any further test or evaluation. Finally, the proposed rule would require that operators provide the miner, upon termination of employment, with a copy of all records that the operators' required to maintain under this part, without cost to the miner. This the second of six hearings. We will also receive comment and testimony on the proposed rule in Denver, Colorado, on May 13th, in Las Vegas, Nevada, on May 15th, in Atlanta, Georgia on May 28th and in Washington, D.C., on May 30th. The hearings all begin at 9 a.m. and end at 5 p.m. If necessary, however, MSHA will continue the hearings into the evening hours. A verbatim transcript of this hearing is being taken, 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 for review by the public. If you wish a personal copy of the hearing transcript, however, you can make your own arrangements with the reporter. I will now turn this over to Mike Valoski, who's the hearing Moderator. MR. VALOSKI: Good morning. As Vern said, my name is Mike Valoski, and I will be the Moderator for this public hearing. MSHA views these rulemaking activities as extremely important and knows that your participation is also a reflection of the importance that you attach to this rulemaking. To ensure that an adequate is 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. The order of presentation of public statements will be in the order in which the requests were received and will be as follows. The first presenter will be Elliott Berger, followed by Joe Urban, Butch Oldham, Don Kunkel, Duane Childers, Edwin Wyatt, Larry Todd, Tyrus Becker, Dennis Wallace, Eugene Gross, Randy Henry, Nat Brice (phonetic), Jim Dunn, Wayne Thompson, Randy Wildermuth, Pat Leet and Mike Dillingham. It is my intent, that during this hearing anyone who wishes to speak will be given an opportunity. Anyone who's not previously requested to speak should indicate their intentions to do so by signing the list of speakers, which is located at the far left end of my table. Time will be allocated for you to speak after the scheduled speakers. The Moderator will attempt to recognize all speakers in the order in which they requested to speak. If necessary, however, the Moderator reserves the right to modify the order of presentation in the interest of fairness. Also, as Moderator I may exercise discretion to exclude irrelevant or unduly repetitious material and in order to clarify certain points, the panel may ask questions of the speaker. All comments are important to the Agency. MSHA will accept written comments and other appropriate data on their proposal from any interested party, including those who do not wish to present an oral statement. Written comments may be submitted to Roslyn Fontaine at the far left end of the table today, or sent to Patricia Silvey at the address listed in the hearing notice. All written comments and data submitted to MSHA will be included in a rulemaking record. Should anyone desire to modify their comments or submit additional comments following the hearings, the record will remain open until June 20, 1997, to allow for post-hearing comments and data. If possible, the Agency would appreciate receiving 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 of our nation's mines. We appreciate the constructive criticism and the hard work and careful thought which your comments represent. Finally, I, personally, and on behalf of the Assistant Secretary, Davitt McAteer, would like to take this opportunity to express our appreciation to each one of you for being here today and for your input. We look forward to your continuing participation in the Agency's rulemaking activities. Before we begin with the first speaker I would remind you to sign the attendance sheet, which we have at the table in the back of the room, whether or not you choose to speak. Also, once again, if your name does not yet appear on a list of speakers you will still have an opportunity to present the testimony. The list of speakers, if you want to talk, will down by Ros and you can sign up at anytime. For each speaker, as you begin your statement, please state your name and organization, who you represent. Also, please spell your last name for the reporter. If you have copies of your prepared testimony, please present the copies to the Agency panel as you begin. Our first speaker of the morning is Elliott Berger. You want somebody to flip them for you, Elliott? MR. BERGER: I'm going to have a couple I need to point to, so I'll run up there as well. MR. VALOSKI: Okay. MR. BERGER: My name is Elliott Berger and you can see it spelled on the overhead. I'm the Senior Scientist for Auditory Research with Aearo Company. And my comments this morning are going to focus on, -- MR. VALOSKI: Elliott, please spell it for the reporter. MR. BERGER: E-L-L-I-O-T-T, Berger, B-E-R-G-E-R. MR. VALOSKI: Thank you. MR. BERGER: And Aearo is an odd one, it's A-E-A-R-O. My comments this morning are going to focus on key points of the written testimony that was already submitted by Aearo Company to the MSHA docket. In addition, as Chair of the American Industrial Hygiene Association Noise Committee and their representative to the coalition to protect worker's hearing, I will be speaking to their comments as well, in that the Aearo Company comments are a subset of the coalition requirements. Aearo did not address all of the areas that the coalition did, but the comments that Aearo provided are in agreement with those same comments that appear from the coalition. We certainly support the efforts of MSHA and think that the proposal in large part, will provide a greater measure of protection of workers' hearing in the mining industry. But there are a number of areas that we would like to address that we feel could bear improvement in the current proposal. And those are in the areas listed on this first overhead of hearing protectors, Hearing Conservation Program definition and aspects of the program, audiometry and noise measurements. I'll begin by addressing the area of hearing protectors. There's four topics that I'd like to look at, they're outlined on this first overhead. MSHA cited a wide number of studies in their record, that have shown that hearing protector performance falls far short of label values that are required to be put on products by the Environmental Protection Agency or the EPA. And I commend MSHA on their attention to those issues. Also, a number of their own studies show these same results. However, what MSHA chose to do as a result of that, was to ignore all data whatsoever for hearing protector attenuation. And, in part, the reasoning was that there were no standardized methods available at the time of the advance notice in 1989, '90, or at the time of the proposed rule late last year, that would guide an agency in how this testing should be accomplished. That situation has now been rectified. A new standard was approved in February of this year that was developed by ANSI 12, Working Group 11, and the standard is designated ANSI 12.6-1997. That document was approved in February and it will be printed early this summer. It includes two methods for measuring hearing protector attenuation. The second of them being Method B or a naive subject fit. And the specific purpose of that method was to develop hearing protector data that would provide a reasonable indication of the values that could be achievable in a well-run Hearing Conservation Program. And I have cited in my written testimony a paper put together by myself and John Franks, and also recently submitted by the Working Group to the General Acoustical Society, and will submit that to the record today. I have a few overheads that I'd like to show you, giving you an indication of what the type of data are that result from this testing. And I guess what I'll need to is take this microphone up front then. I don't want to belabor the point here, but I'd like to show you a few details. The Working Group 11 was involved for about seven years in developing this standard. There was a pilot and a full scale inter-laboratory study that the Working Group conducted. And here are some of the results from those studies. What you see here are data for a foam earplug. And we're looking at a attenuation or noise reduction on this axis. The attenuation increases as you go down the chart. We'll just focus on these lines in the lower half of the graph. The blue curve represents the published attenuation data for this form earplug per the EPA requirements. The range of green curves are data from sixteen field studies in countries around the world conducted in the last fifteen years. The red curve represents the results from the type of tests called for by the new ANSI Standard. What you can see is that there is a very large divergence between the current label values and any of the field data. There is certainly a range of values in field performance, probably due, in part, to the range in quality of those Hearing Conservation Programs. The goal of the Working Group was to represent perhaps the upper quartile, the upper 25 percent of what you could hope to obtain in real world environments. And from these data it would certainly appear as though that had been achieved and the results are, as you note, substantially different than the current label values. Just to give you an example, for another type of protector here is a pre-molded earplug. There are about five field studies available. Once again, you can see the manufacturer's published data. The green curves and this green box represent the field performance values and the red curve, the data from the new ANSI Standard Method B. And, again, you can see that it provides, in this case, almost an upper-bound to the real world performance. There were two other protectors tested. If anyone asks, we can look at those data as well; another earplug and an earmuff and the same sort of performance was apparent. The results of the new standard or that standardized method, I can tell you have received wide support in the professional community. There was an NHCA Task Force established in the early 1990(s), the National Hearing Conservation Association. And that Task Force on Hearing Protector Effectiveness, which consisted of nineteen professional agencies, organizations and Working Groups, came to a consensus finding supporting the results of tests according to this new standard. The purpose of that Task Force was to provide recommendations to the EPA on how to revise the current EPA labeling regulation. In addition, since that time, nine professional organizations, all listed under Item 3, which consist of the American Academy of Audiology, the American Academy of Occupational Health Nurses, the American Academy of Otolaryngology, Head and Neck Surgery, the American Industrial Hygiene Association, the Acoustical Society of American, the American Speech, Hearing, Language Association, the American Society of Safety Engineers, CAOHC, the Council on Accrediting Hearing Technicians, and the National Hearing Conservation Association, have all formally endorsed the findings of the Task Force and hence, recommended use of the new ANSI Standard for developing hearing protector attenuation data. Now that that document's available, I would strongly recommend that MSHA consider its adoption. The current MSHA proposal treats all hearing protectors as equal. And certainly there is some degree of uniformity among certain types of devices, but there are data that definitely indicate that some types or brands of hearing protectors can perform better than others, and there should be a way for the user to distinguish those in the higher noise environments where it may be important to select the devices with the greatest attenuation. In that regard then, the written comments indicate how this standard should be utilized to evaluate the acceptability of hearing protectors in noisy environments and specifically, when an STS or a Standard Threshold Shift exists one, one of the follow-up measures, other than simply checking the performance of the hearing, -- checking the quality of the hearing protector and the fit, and other issues that may have led to the STS. If you go through all that, and you find out that it looks like the person was wearing the hearing protector correctly and it was in good condition and it really is an STS, then the obvious next possibility is maybe they need a more protective device. And this standard would then provide data that could be used so that the assessment would be also evaluate maybe a more protective device needs to be utilized. Last year NIOSH in their proposed criteria document, under Item 1(a)(7), they indicated a derating proposal, which was a percentage derating of current label values. That derating was, in part, based on work that I had done in conjunction with NIOSH, and does provide a reasonable reflection that would bring the current label values into correspondence with field performance. But it's a very crude estimation. The reason being, that the current label values have been shown to provide neither a good indication of the absolute performance of hearing protector, or even a proper rank ordering of their performance. So that it's very difficult to do anything at all with the existing laboratory data. The much better approach is to go back to square one, start over and require new testing. And in that regard, MSHA could provide quite a service to not only the mining community, but industry as well. As you may be aware, many of these professional organizations have petitioned EPA to revise the labeling regulation. There's nobody home at EPA. There's no one in that office of Noise Abatement and Control, and although it's possible they may receive funding in the next couple of years, there's nobody right now to do anything with those petitions. So, activity's going to be slow at the EPA. If MSHA were to require these type of data be provided for the mining community then manufacturers would have to start to provide those data to mine operators and there would be somewhat of a fool-proof, -- there would be an impetus for the hearing protection manufacturers to have to provide those data perhaps as well as the existing type of EPA data. Item B is the use of hearing protectors in low sound levels. Although it's worded in a rather obscure manner in the proposal, what you can note is that the requirement is that if an employee's exposed above the PEL, then at anytime they're exposure is above a sound level of 80 dB they have to be wearing a hearing protector as long as their overall TWA is above the PEL. I believe that that is a flawed recommendation and it's going to lead to problems. For starters, the data clearly show that as sound levels diminish, hearing protectors will interfere with the ability to hear critical warning sounds, speech and other communication signals. The turnover point is about 85 dBA, so when the sound levels get below about (85) hearing protectors can negatively impact your ability to hearing noise. In addition, below 85 dBA the sounds are much less hazardous to one's hearing. It's going to be much more difficult to motivate employees to wear hearing protectors in those very low sound level environments. To many people, sounds of 80 dB just aren't annoying at all, let alone, painful or hazardous. So it's very difficult to convince them to wear a hearing protector at those levels. The requirements should simply be that when the TWA exceeds a certain amount those employees need to be wearing hearing protection. The logic is also flawed. For example, an employee who would be exposed to a TWA of 84 dBA would not have to wear a hearing protector. Even an employee exposed to 89 dBA would not have to wear a hearing protector. But an employee who had a TWA of (91) for a, -- average exposure of (91) for seven hours, who might spend a little time at 80 dB, would now have to be wearing a hearing protector at those 80 dB levels because their PEL was over (90). As someone enforcing it, how do you differentiate the person who's in that 80 dB noise who at some other time had a higher exposure, so, therefore, they have to be wearing a hearing protector, from someone who works all the time in that 80 dB noise and doesn't have to be wearing a hearing protector? So, it becomes a very difficult enforcement scenario in the mining environment. And the last point there, is that in most of the computations I was able to look at where you have noise exposures at various sound levels, the principal contribution to the hazard is from those higher level exposures. So, let's focus on those high level exposures and make sure that that's where the person is wearing the hearing protection. Item C is the selection of hearing protectors to be provided. MSHA reviewed the literature, especially the findings of the NHCA Task Force and acknowledged the importance of a miner being able to select a hearing protector that's comfortable, because the key issue is a comfortable noise blocking seal that someone can wear consistently throughout the day. In the opinion of myself, as well as the coalition, a selection from just one muff and one plug is not sufficient to accomplish those goals. Basically, that is no selection at all, once a person has decided they either want to wear a plug or a muff, they're then stuck with that style. Further, if they were exposed above (105) and had to be wearing dual hearing protection there would be no selection because they would simply have that muff and that plug to wear. So, at a minimum, the requirement in the regulation should be four different models of hearing protectors, including at least two plugs and one muff. And certainly, many hearing conservationists would recommend even a larger selection. Item D is allowance for hearing protectors in lieu of the fourteen hour quiet period for baseline audiograms. Currently, of course, OSHA allows hearing protector use. MSHA looked at the data, and rightfully noticed that hearing protectors often don't perform as you would expect, and so, it would be likely that you might not be able to rely on them to ensure a noise-free period prior to the baseline. And therefore said, "You can't use hearing protectors". My recommendation is that that is an impractical scenario; that it's going to be difficult for mines to administer that baseline audiogram prior to work, for all miners. In addition, you can't control the off-job exposure. And it's quite possible that somebody, depending on their recreational activities or even how they drove to work that day, could have a pre-work exposure that would lead to some minor or temporary threshold shifts and a contaminated baseline. So, a better compromise, in my opinion, would be that hearing protectors could be used in lieu of that fourteen hour quiet period with those four provisos listed. Number 1, that a short period of time before that test there would be individual training and retraining of the employee in how to use the hearing protector and advise them that it's in their own best interest to wear it correctly so that they can get an uncontaminated baseline audiogram. Also, that the hearing protector that will be used, its condition be checked to make sure that the resilient parts are still working; that there's no cracks; that it hasn't been degraded. Item 3, that the choice of hearing protector for this particular application be either an earmuff or a foam earplug. And that recommendation is based on evaluation of twenty-two field studies with over three thousand employees that indicates that those types of hearing protectors are the ones that give the best protection in practice. And Item 4, would be if the TWA is greater than 100 dBA for that employee, that they would need to use dual hearing protection on the day prior to their baseline audiogram. Those are my points on hearing protection. I'd like to turn to Hearing Conservation Program issues. MSHA indicated that because there were new rules being developed for the mining industry that it might be less confusing if they redefined what a Hearing Conservation Program was. And the definition in the current proposal is that a Hearing Conservation Program is hearing testing. I think that is an incredible disservice to the hearing conservation community. Not only has OSHA, but the entire professional community has come to realize that a Hearing Conservation Program is much more than testing hearing. If all you do is test hearing, what you're going to do is simply document the onset of noise-induced hearing loss. Hearing testing is only a portion of the picture and it must be accompanied by all the other aspects of the program, the noise control, the noise surveys, the use of hearing protection, the education and training, the recordkeeping and other aspects that have been included in, -- for example, the NIOSH definition of the Hearing Conservation Program, which have to do with auditing a follow-up. So, it's really important that this rule that MSHA's developing utilize the term "hearing conservation," in its accepted format and recognize what is required to go into hearing conservation. Item D is the enrollment in the Hearing Conservation Program. That is somewhat confusing to be in the current proposal. If you're above the action level you are required to receive the training. And, of course, that's not considered the Hearing Conservation Program, but you do have to get your training. However, whether or not the miner takes an audiogram is up to the miner, it's voluntary. This partial enrollment I see as leading to less effectiveness in the Hearing Conservation Program. For starters, there is a requirement that if there is an STS detected, that there's certain follow-up actions. But there's no means of detecting that STS between 85 and 90 dBA for those employees who have chosen not to have an audiogram. It's going to be much more difficult to motivate the employees when there is this diversity in how some are treated and how others are treated. And, finally, there will be incomplete data, so that if MSHA or the mining community wants to, at a later time, examine the effectiveness of the program there's going to be sketchy audiometry available in that (85) to (90) range. And for people in that range who aren't wearing hearing protection may be as susceptible to getting hearing loss, as those at (90), (91) and (92) who are wearing their hearing protection. So it's really important to have data for the entire group above the action level that are involved in hearing conservation, -- hopefully, what will become called the Hearing Conservation Program. A requirement that is not in the OSHA standard, that both Aearo and the coalition recommend is that there be some measure of program effectiveness on an annual basis; that there be a requirement that there be an annual audit, although no definition in mandatory terms of how that audit should be accomplished; that a non-mandatory annex be included that would discuss a subjective evaluation or all components of the Hearing Conservation Program present on an objective evaluation according to the ANSI Draft Standard S(12)(13), which will probably become a full standard within the next couple of years. And that standard describes how to evaluate a Hearing Conservation Program by examination of the audiograms. As well as other measures involving the supervisors and foremen, the rate of Standard Threshold Shifts and other details that could be included in that non-mandatory attendance. Item 3 is audiometry. To begin with, the reportable hearing loss that's proposed in the rule is one of 25 dB. That is in contrast again, to the recommendations of the coalition and most of the professional community. If you take a look at the onset of hearing loss due to noise exposure, it is impossible for someone to have two shifts of 25 dB in a working lifetime due to industrial noise. By the time you have one shift, the person is probably through their entire career. It's an incredibly large shift when averaged over those three frequencies. The coalition last February, February '96, in response to the OSHA requests for testimony, supported an earlier AIHA position, which is to say that reportable hearing loss should be synonymous with a confirmed work-related STS. Not just an STS, but a confirmed, persistent, work-related STS. And I would refer you to the AIHA position statement in the summer '96 issue of the American Industrial Hygiene Association Journal that describes the number of steps, of which there's about a half a dozen, that are involved in confirming that an STS is persistent and work-related. And under those conditions it's certainly reasonable to require that as a reportable hearing loss, consistent with OSHA, consistent with the STS measures in the proposed rule. The proposal by MSHA talks about conducting audiograms with scientifically validated procedures. My feeling is, that that is simply going to lead to contention, litigation, endless acrimony over what are those validated procedures. There needs to be some definition in there or ANSI Standard that provides specifications on audiometers, permissive background noise and methods for audiometric testing. That should certainly be cited in the proposed rule as what defines a validated type of procedure. In particular, the background room noise requirements from that ANSI Standard should be strongly considered. They are more stringent than the OSHA requirements and it has been clearly shown by many investigators, including myself, that the OSHA requirements are inadequate to provide a noise-free, unmasked audiogram. However, because of practical concerns, I would concur with the coalition findings that a 5 dB relaxation in the ANSI levels be permitted at 500 Hz because of the lack of likelihood that that is going to be a noise effective frequency and also practical concerns in terms of meeting noise requirements at 500 Hz. There are no specifications in the current standard on revising baselines. And what I can tell you is that within the professional community that has been a very difficult issue to resolve. In 1990, Dr. Julia Royster presented a paper and then was asked to chair an Ad Hoc Task Force for the National Hearing Conservation Association and spent five years trying to come to consensus on how a seemingly simple task of revising baselines could be accomplished. They did come up with some guidelines and I think they're an excellent and clear set of recommendations. They were published in 1996 by the NHCA, and it would be a very good guidance to the professional community on when a baseline should be revised to overcome the supplemental reference or whatever it's going to be called, based on either improved hearing or the discovery of STS. And finally, the ten day notification in the current proposal I think is unduly restrictive and unnecessary. This isn't a dramatic or incredibly fast-acting event. OSHA permits twenty-one days, and when you look at it administrative issues, vacation, leave time, et cetera, ten days can often be a difficult time frame to meet. Finally, I'd like to talk about our noise measurements. As a person in a company who fields questions from customers, one of the common questions that I get is, "I measured a person's noise exposure and they were over the limit today, but they really won't be in general, except one day a week or a couple of days a month. What's OSHA going to do? Do I have to put them in a program? How do I treat these issues?" And basically, it's a game of gambling or deciding how safe you want to be, or deciding will OSHA be there on that one day when the person's exposure may be high, or will they be there on a day when the exposure's low. So I think a way to provide more uniformity of decision-making here, would be to accept the recommendations of Dr. Edgar Shaw from Canada, who studied this issue and others in the early 1990(s) for the, -- for Ontario Province in Canada and recommended that a forty hour equivalent exposure be developed. At least for those who would have variable daily exposures. So that there'd be some means of defining how MSHA would treat these issues. That instead of just looking at an eight hour equivalent exposure you'd look at the equivalent exposure over a work week. The issue of a ceiling level is a little bit confusing in the current document. It's understandable why there would be a concern to have exposures permitted above 115, -- at 115 dB for fifteen minutes a day, which is, of course, what the current table would permit. And that problem arises because of the use of the 5 dB tray instead of the 3 dB tray. However, the solution of simply saying that any exposures over (115) are not permitted, I don't think is a good one, because it's clear from those who've used those dosimeters that have the 115 dB warning lights that they're almost all gone. It's just very easy to get any spurious sort of bump or other noise that will tip that 115 dB indicator. So, there needs to be a better type of definition. For example, if it would be possible to require that no exposures of 115 dB for a total of one minute during the day would be permitted. By this I mean that you would have to add up these spurious bumps and bangs and if there was more than a minute of them then you would consider that that was over a 115 dB and outside the ceiling limits of the proposed rule. Those are the extent of my comments. As I said, they focus on key issues in the written testimony. All of them are amplified there to a greater extent and I can leave a copy of the overheads, as well as the paper describing the test results of the Working Group with you this morning. MR. VALOSKI: Any questions? THE PANEL: (No verbal response.) MR. VALOSKI: Thank you very much. Elliott, please leave them with Ros down at the far left. Okay. Our next speaker will be Joe Urban. MR. URBAN: Mike, to help expedite the hearing today, two of the individuals that are on our list will not be speaking. That is Larry Todd and Nat Brice. MR. VALOSKI: Thank you. MR. URBAN: My name is Joe Urban, J-O-E, U-R-B-A-N. Mr. Chairman and distinguished committee, my name is Joe Urban. I am the Regional Deputy Director of Organizing in the midwest, the United Mine Workers of America. In addition, I represent miners and safety matters in District 12 of the United Mine Workers. District 12 now encompasses ten states in the midwest. I wish to take this opportunity to thank MSHA for holding these public hearings near the coal fields throughout the United States, in order to give those individuals, working miners, who will be the most affected by these rules, an opportunity to voice their concerns, especially about the proposed rule. I have with me here today, miners from around the tri-state area, and I would greatly appreciate your undivided attention, in not only listening, but also in giving serious consideration to their concerns. To begin with, these individuals are not new miners. They will have average mining experience. And again for the record, we're referring to coal miners, metal and nonmetal individuals. But these people have a range of fifteen to twenty-five years of experience of working in coal mines. They know first hand, the problems that they've had to live with in respect to noise in the workplace. You will hear testimony from miners that work at the surface coal mines, underground coal mines and coal mine preparation plants. My comments primarily, are going to be in general terms, thereby allowing the miners themselves to share specific problems of which they have had to deal with and continue to deal with on a daily basis. In order to set the tone for today's hearing; and there have been hearings in the past at which sometimes United Mine Workers had been defined as rather abusive to the committee. I hope to change that reflection somewhat today. And that an overview of the proposed noise standards and evaluation of the proposed noise standards, indicates definite improvements and technical requirements over the current policy concerning noise. Half or most of those improvements are overshadowed by the lack of sound monitoring or enforcement requirements. It is the monitoring aspect of which I wish to speak specifically about to you today. The most damaging aspect of the proposed rule is the fact that it is performance oriented. Or in other words, self-enforced by the operator. The operators will be solely responsible for establishing a system of monitoring noise and taking appropriate action under the rules whenever they find themselves out of compliance. What was disheartening was the fact that the entire language of the rule consists of fourteen words. "Operators shall establish a system of monitoring, which effectively evaluates each miner's noise exposure." And that's found at 62.120(f)(1). Now, let us compare the regulations covering monitoring to respirable dust. Four pages are on when, how, under what conditions and who does sampling. And five pages on a sampling method. Under these rules on respirable dust, mine operators have been perpetrating fraud for twenty-five years. The proposed rule on monitoring noise is an invitation to abuse it. Furthermore, MSHA's role will be limited to taking their own measurements whenever they deem appropriate and checking the operator's record at the mine site for compliance. I do not foresee many operators admitting that they have a noise problem and self-imposing costly engineering controls. Ladies and gentlemen, let's be honest with each other, if we had performance-oriented laws in our state, -- and this is an example that I use quite frequently. Unfortunately, I received a speeding ticket last week in Kentucky. Now, if I had the performance-oriented right to police myself, I don't believe I would have gave myself an eighty-nine dollar ($89.00) ticket. Stop and think about that. This requirement is wholly deficient. It fails to specify the type of instrument, its maintenance and calibration, that it should be permissible when used in underground coal mines; the circumstances under which exposure evaluation should be done; the training of the person who evaluates the miner's exposure; the rights of miners to observe exposure measurements, what should be recorded and how, and who should be able to see the records, when and under what circumstances; even its own terms are left undefined. What is a system of monitoring? What is effective? If this paragraph is adopted, too many important matters will be left to lawyers and judges to decide, and many more will be neglected altogether. Almost from the days when the Coal Mine Act was passed in 1969, we've seen some mine operators, -- and again, some mine operators, betray the trust delegated to them by MSHA to take accurate samples of exposures of respirable dust. This proposed rule on monitoring miners' exposure to noise willfully ignores history and assumes, -- and ladies and gentlemen you know what happens when we assume, okay, that operators will do the right thing. This is a false assumption. We do not believe that mine operators will do the right thing. We do not believe that mine operators are addicted to cheating, but that given the opportunity to cheat, some will. This proposed rule not only provides the opportunity, it is an invitation to cheat. A situation could arise, for example, that an operator develops his version of a monitoring program that is not effective. If the agency takes action to correct such practice, the first issue to litigate, -- and I'm glad that we have a representative from the Solicitor's office. The first issue to litigate would be the meaning of effective. Am I correct? And the person who would likely end up deciding this matter is an ALJ. Not someone more familiar with noise or mining. With all due respect, judges are not qualified to make such decisions. And litigation is not the best procedure to use. This issue should be settled now, during rulemaking, by people who are knowledgeable and qualified to do so. Furthermore, with respect to this hypothetical case, time and resources would be devoted to litigating an issue that is best and directly related to miners' exposure to noise. Miners would be deafened, while lawyers sip an issue of legal semantics. We suggest MSHA eliminate this sentence. We suggest that MSHA draft one that will require operators to monitor exposure in a credible and useful manner, and that will establish a standard of performance to which operators can be held accountable. We have drafted language that would achieve these purposes. We used three documents as templates on how to monitor miners' exposure. (1) The recently concluded deliberations of the Advisory Committee on the Prevention of Pneumoconiosis; (2) the report of the Agency Task Force on dust monitoring; and (3) existing rules on monitoring exposure to respirable dust in 30(c) of our part 70-S Guides. These documents were developed by deliberations within the agency, among mine operators, the UMWA and health professionals and through rulemaking. Consequently, they represent a consensus view of good practice, that they are concerned with dust rather than noise, if of a secondary importance. We looked at them as a template, as a list of the topics to consider when monitoring exposure. I appreciate the opportunity to speak before the committee today. The United Mine Workers feels that this is a very important proposal that is being put together. The miners, I feel, will give you information today that hopefully will give you insight to the direct exposure that they have had, the problems that they have had. With that, I would also beg the indulgence of the committee to allow final wrap-up comments at the conclusion of our guest list of speakers. With that, thank you, gentlemen and ladies. If you have any questions. MR. VALOSKI: Let the record show that an ALJ is an Administrative Law Judge. Okay. Our next speaker is Butch Oldham. MR. OLDHAM: My name is Butch Oldham, it's O-L-D-H-A-M. I'm a International Representative for the United Mine Workers, and I represent workers also in UMWA District 12. And I'd just like to say I appreciate, Mr. Chairman, the opportunity to speak before you today, and ladies and gentlemen of the panel. And with that, what I want to discuss today, is why, -- you know, I feel like MSHA would want to come up with what appears to be another definition for representative of the miners. And when they refer to the "miners' designated representative" in Section 62.200, access to records of the proposed rule. You know, in everywhere in the Mine Act, published CFR and MSHA's Program Policy Manuals, it references the representative of the miners. For instance, under 30 CFR 40.1(p), a definition has already been well established for representative of the miners. MSHA, along with the UMWA, have been through the court systems to uphold the meaning of this definition. And now, they want to put another twist to the definition. The Mine Act also makes numerous references to the representative of the miners. Yet, no where could I find where it refers to the term "miners' designated representative". And I feel like if Congress had intended for there to be another definition, I feel they would have included it in the Mine Act. But Congress chose not to have various definitions so there wouldn't be any confusion on the miners' or the operators' part. And even at that, as previous (sic) stated, there have been many court cases over that single definition for representative of the miners. Various places in MSHA's Program Policy Manuals make reference to the representative of the miners. A few examples that I found are in Part 43-1, under "The Procedures for Processing Hazardous Condition Complaints," where it uses the terminology "representative of the miners". Part 104.4 also addresses representative of the miners, when the district manager receives a decision from the administrator to issue a pattern of violations. It requires a copy of the notice be provided to the representative of the miners. Section 104.5 also addresses representative of the miners, as it requires that if a pattern of violation notice is terminated that a copy be provided to the representative of the miners. Again, no where in the policy manuals about now the terminology "the miners' designated representative," but have found where it explicitly references the representative of the miners. I ask that MSHA take another look at this issue and to use the well-established terminology for representative of the miners that is presently in place and not create new definitions. Again, this will only lead to confusion among the coal operators and the miners. And this is something that we can do without. I feel like that it's been settled through the courts and will probably pick on a Solicitor, and I don't think they really want to have to go through that again, also. MSHA needs to retain the definition of representative of the miners in the final rule as it is presently defined in the Mine Act, the 30 CFR and MSHA's own Program Policy Manual. Another issue that I feel needs to be addressed is testing requirements for extended work shifts. Many miners today are required to work longer than eight hour days. Sometimes as much as ten, twelve hours a day. Therefore, I feel like MSHA needs to adjust it's testing procedures to accommodate for these extended shifts and extended hours that miners are required to work. And I would be interested to know if MSHA has at the present time or have any plans in the future to do any testing regarding extended work shift exposure to noise for miners. With that, I appreciate your patience and if you have any questions I'll be glad to answer them. MR. VALOSKI: Thank you. Our speaker will be Don Kunkel. MR. KUNKEL: My name is Donald Kunkel, that's K-U-N-K-E-L. I'm the Safety Committee Chairman for Local 15 UMWA. And I'm employed at OH of Illinois Coal and Mine. And I want to describe a piece of the equipment that's been installed there in November. It's called the Arch Layer and it's a new, state-of-the-art computer-controlled piece of equipment. And it has a continuous miner with a bolter car hooked behind it, and a continuous hauling system that is attached to that. And when this thing was manufactured and put together out in Pittsburgh, people from Tri-delphi (phonetic) came down and approved this thing as they heard it operate out there. And it was not in a confined area or anything as it is now. When it was installed at the mines, the first time it was started up under a no, -- non-production situation, the two operators on this bolter car, the dB was (108) under a non-production bolt. And with a nine million dollar ($9,000,000.00) piece of equipment we can't understand why the engineering controls and stuff, they couldn't monitor or do something with this situation. Even though to operate this you have to wear earplugs plus muffs, and we have a communication system that is built in with the muffs, where everyone on this unit can talk to one another at anytime. But this bolter car has four drill pumps on it, if you understand what I'm talking about. The two front ones will drill what we call a "starter hole," and the two back ones, they can finish the hole for whatever depth it has to be and install the roof bolt. We have lots of limestone in our area, so that multiplies the noise. And there's a possibility that you can have all four of these drill pumps milling the limestone at one time. So, no telling what the dBA is at that one time. Plus this machine has a conveyor running through it where coal is conveyed off of the miner and through this, and you have the Arch Layer behind it. So you can have all these conveyors running, plus all this here at the same time. And with all this involved, with this hearing protection and stuff, your sense of hearing is totally destroyed, the people right there operating that, because they can't hear a fracture of the roof or anything possible close to them. All they can count on is sight and feel. That's the only protection they've got. And on some other areas possibly there, we feel that there should be a dosimeter mounted on some of this equipment that has the problem areas, so as the roof structure changes or you have, -- start having mechanical failure, the people operating this equipment can notify personnel and get it repaired as needed. That is all I have. Is there any questions? MR. VALOSKI: One question. You said people from Tri-delphi came out and validated the system? MR. KUNKEL: It was approved; the people from Tri-delphi approved it before this unit was shipped. MR. VALOSKI: What exactly did they approve? MR. KUNKEL: They approved the machine as it was, you know, to go into production. MR. VALOSKI: Electrical testing? MR. KUNKEL: Yes. MR. VALOSKI: Okay. Thank you. Our next speaker will be Duane Childers. MR. CHILDERS: My name is Duane Childers; it's spelled D-U-A-N-E, C-H-I-L-D-E-R-S. I'm the representative for the United Mine Workers Local Union 2305. I work at the Camp 11 Mine, Overfield, Kentucky. And basically what I have to comment on is there is no standards I know of that MSHA puts on the manufacturers before they let the equipment come to the mines, such as, -- such as Don's equipment. They bring equipment to the mines, it's noisy when it gets there, people have to deal with it. You talk about the noise that people are exposed to, something nobody ever talks about is the noise that people have to put up with; they can't hear nobody talking to them; can't hardly hear the roof 'cause some of it's so noisy. We've had people run over by ramp cars, luckily not hurt too bad. On two different occasions I know of because the continuous miner was a lot noisier than the ramp car and they couldn't hear it coming. Ramp cars are hard to see from. And, you know, one of my personal experiences is as a safety committeeman, at one of our district safety quarterlies, our miners' rep had Texas Four come down and put on a class for us on noise and they put on ways of dampening the sound, such as blocks, putting up a block to block the sound, noise dampening. And at the time I was a scoop operator and I got some ideas out of that class. So I went back to the mines, -- and my scoop was very noisy, the top motor on it was really loud, it had a loud squeal to it, and I went to our shop and got some noise dampening material and I took and, -- put the noise dampening material between me and the motors and stopped every crack and cranny I could to keep the noise away from me. It dropped the noise just unbelievable. You could actually carry on a conversation with somebody behind you that wanted to talk. You could hear people holler at you or ding their bell at you, and before, you couldn't hardly hear it. And I know if I can do that and not being an engineer, -- I'm not an engineer. I know if I can do that, somebody can do that at the factory. And if MSHA required something on that, -- I really believe that if they would require something on that before it got to the factory (sic), somebody would put out the effort, we would alleviate a lot of the problems that we have now. Such as a stage-loader on our longwall. I believe if you covered that stage-loader with a lot of belting and closed a lot of the, -- a lot of the noise from the pit breaker is when you have heads and lots of large rocks go through, that would keep a lot of the noise exposure down. But it seems the first thing we want to do, we want to do the simple, easy, non-expensive way and run out and stick earplugs in somebody's ear or put earmuffs on, or both. We don't want to take the time to spend twenty-five dollars ($25.00) on noise dampening material to maybe line the motors, or if nothing else, just build a block to keep the sound away. Build a barrier around the noise, to shield you from the noise. But instead, the first thing we want to do, "Let's do the easy thing. Let's go get earmuffs, stick earmuffs, earplugs on everybody". You know, if you really want to do something to help the miners, go to the manufacturers and tell them, "We want this equipment built as quiet as it can be built," and there's bound to be some kind of standard. I think if you took the technology you have today, -- I mean, I'm sure McDonnell Douglas, a lot of corporations out there, -- I've been in bulldozers before that were really quiet because they took the time to manufacturer them and put operators in a place where his environment was quiet. I mean, they put a air conditioner in it to keep you cool. That way he can stay concealed in a canopy where it's quiet, clean and safe. But when it comes to underground equipment, nobody thinks about that, evidently, because there's no time being spent on it. I'm not seeing it. So, you know, if you want to call it criticism, call it what you may, but I'm not here to blast my company, 'cause my company will let you do things like that. But I'm not an engineer. I'm sure an engineer could do a lot better job than I could. That's all I have. Any questions? THE PANEL: (No verbal response.) MR. VALOSKI: Thank you. Our next speaker will be Edwin Wyatt. MR. WYATT: My name is Edwin Wyatt, E-D-W-I-N, W-Y-A-T-T. I work at Peabody Coal Company, Camp 11 Mines. I'm a roof bolter over there, I'm a member of the Safety Committee. And the thing I would like to touch on with you today is where it says that hearing protectors will be virtually worn all the time or provided to the miner and worn by the miner. I would just like to speak to you about these sections. I feel that where miners are working in environments where it is virtually imperative at times to be in a more highly sensitive state of control of all your senses in any situation you could ever be put in on the surface or possibly another mining area. I've been a roof bolter for many years and I can tell you for a fact that at many times throughout my mining career I have escaped certain disabling injuries or probable death, simply by the fact of my hearing sense being my greatest asset. All too often hearing gives you that split second to react, where sight alone would only let you see in retrospect, possibly like the train running over you, or in our case, the roof falling on you. If miners are required to wear hearing protectors at all times, I feel that this would be a hazard instead of an enhancement and cause more accidents, if not fatalities. Now, there are many different kinds of roof conditions in Western Kentucky where we work, we have a slight, tight top, we have kettle bottoms and we have heads that fall without hardly any discernible noise. And as a roof bolter, our first line of defense in securing the top to make it safe for all those involved in the mining process, shouldn't we be provided with engineering controls to reduce noise sources to as low a level as feasible so as not to only reduce a miner's exposure, but also make for a safer working environment. I realize that in this area of budget consciousness that all too often there are half-hearted attempts made to quick-fix seemingly menial problems. But is a partial or totally hearing loss a minor cause for concern? And what will partial or total disability or worse yet, death, because of not fully exploring all technical advances that are available. I say to you, how can you, -- no, how can we, settle for anything less than the best of modern engineering and technology can provide for the health and safety of the United Mine Workers of America and all coal and metal and nonmetal mining workers. That's all I have. MR. VALOSKI: Thank you. Our next speaker will be Tyrus Becker. MR. BECKER: Mr. Chairman, ladies and gentlemen of the panel. My name is Tyrus Becker, B-E-C-K-E-R. I'm a Local Union President, United Mine Workers Local 2412. I'm employed at Peabody Coal Company, Marissa Mine, Marissa, Illinois. I come before you today to talk about several issues, mainly the ones that I have personal experience and knowledge about at the Marissa Mine. As Local Union President of the miner operators at the Marissa Mine, namely Carl Phillips, Ardel Williams, Dennis Beck, Gibsdale Horn, Farley Risten and Butch Chandler, continuous miner operators have suffered from roof falls. Basically each and everyone of them wearing hearing protection, whether it be earmuffs, plugs, whatever. I suggest to you that because of the miners working in an environment that it is of the utmost importancey (sic) for them to not only have sight, sound, feel and everything else of their human senses that without the utmost and 100 percent hearing accuracy available to them, without restrictions by muffs or plugs, that some of these injuries, being everyone of them, lost time injuries; one of them being up to sixteen months off the job and out of work, that they could have and should have been avoided. A roof is the first sign of trouble in a coal mine, a miner must rely on the sound. The sight gets done too late to react. The sound is the first thing that we must rely on. I've been a roof bolter for eight years at Marissa Mine. During that time I have tried both muffs, plugs, any hearing protection that was available to me, and I can tell you first-hand that anything as far as hearing protection goes on the market today, does not allow you to listen to the top conditions and the warning signs and warning signals that the top initiates prior to the fall of most roof falls, or just rock falls. The partner that I bolted with over a continued time, we could not rely on verbal communications because we could not hear one another, not being more than myself to you, the panel itself, between us and the distance in the roof bolting situation. MR. VALOSKI: Excuse me a second. Let the record show we are approximately 12 feet away? MR. BECKER: Yes. MR. VALOSKI: Thank you. MR. BECKER: We could not rely, even at that distance, on verbal communication. If I was watching for him or him (sic) was watching for myself while we were bolting, we could not rely on him hollering or warning verbally to me. He would literally have to shut the machine off, that giving me the signal that something was wrong. And I suggest to you that that is, -- at that time it's too late to really react and it could be fatal or serious injury. We do not need more administrative controls, we need engineering controls. Something that does not require us to virtually be under the ear protection constantly. It only hinders our situation. One other thing is the extended work shifts. There is no really such thing as a eight hour work day in the coal mines as we know it today. Nor is there a forty hour work week in the coal industry today. At the Marissa Mine we work what we call an "alternative schedule," ten hours a day, four till four. The mine works six days a week producing coal. It virtually works on the seventh day on an everyday regular basis. So I say to you, is that we are exposed to the noise on much longer levels than eight hours or forty hours per week. There is really no such thing as that in the coal industry as you know it today. The last thing that I want to mention about is the small business or small entity of five hundred employees. I'm a Local Union President, the Marissa Mine had three hundred and thirty-two workers at the Marissa Mine. The third largest coal mine in Illinois, Indiana and Kentucky. The largest coal mine that I am aware of today, is the Ker-McGee Collation (phonetic) Mine, that is the only mine that has over five hundred employees. Without going into any detail, the Collation Mine, I'm sure that those people would appreciate any help in that noise level regulation. But, that is the only mine that I am aware of that employs over five hundred coal miners in the tri-state area. So I would submit that more reasonably would be ten, fifteen or twenty people would be the logical number for a small business. Thank you. MR. VALOSKI: Thank you. Our next speaker will be Dennis Wallace. MR. WALLACE: Good morning. My name is Dennis Wallace; I'm the Local President Camp 11, Peabody Coal Company, Overfield, Kentucky. And I've got twenty-one years mining experience. Before I begin, we first must agree what the proposed rule is for, and that is to preserve hearing. My comments concern the Hearing Conservation Program. Some of my examples are taken from within my workplace, and I have names and addresses if anyone needs them. The current policy with most operators is there is no policy, nor a mandatory Hearing Conservation Program. Nor is there a mandatory baseline audiogram to determine a decline in hearing acuity or a temporary threshold shift in hearing. Some employees from our operation, and one in particular, Joe Gregory, who upon returning to work after a short-term layoff was required to take a hearing test for his physical. Upon results of the test he had lost 23 percent hearing in his left ear and 27 percent in his right ear. He was further recommended to go to a certified audiocalogist (sic), correct on that, to very this. He did. This test was taken in 1991. Upon the test, there's been no Hearing Conservation Program established at our mines. There has been no mandatory baseline audiogram to determine if there has been a shift in his hearing. I encourage you and your panel, to take this rule and do what it was supposed to do, and that is to preserve hearing. I have men that are working as machine operators, roof bolters and belt-men on stationary belt drives who have to wearing a hearing muff now that take away from their safety. I think you've heard it from most of these men in here. This is a problem. But we need a starting point. We need these mandatory Hearing Conservation Programs. That's all I have. Any questions? THE PANEL: (No verbal response.) MR. VALOSKI: Thank you. Our next speaker will be Eugene Gross. MR. GROSS: Mr. Chairman, ladies and gentlemen of the panel. My name is Eugene Gross, that's G-R-O-S-S. I'm President of Local Union 1071, Union Town, Kentucky, Salmon Creek Coal Company. I've worked underground for my twenty-two years, both underground and on the surface. At the present time I'm on the surface. The noise underground, you talk about miners and pinners when you're in a confined area, it's one thing. When you get in a prep plant you've got so many vibrators, dryers, it's unreal. You take companies like the Sal that I work for, you get to talking about feasibility. You ask them to try something for the noise, the first thing they tell you, "Go put in some earplugs". I'd like to ask y'all, all through your discuss already, Mr. Chairman, you talked about feasibility, what is feasible? You know, they come and say, "Well, we don't have the money. You know, we're losing money everyday, every month, year to year, it's not feasible for us to do noise controls. Let's do the earplugs". And like the people talking earlier on earplugs, we had a miner operator that was running the mine on Number 3, Danny Fowler, he had earplugs in. The miner helper happened to walk up out by the rim, it was approximately, -- in by the rim it's approximately 10 feet. He had earplugs in, Fowler did, the helper heard the roof pop, he hollered "Run". Danny Fowler never heard the topper. The shuttle car might have been loaded. The shuttle car operator had earplugs in but he didn't hear the topper either, because of the noise of the miner and the shuttle car running. They took off running, -- the helper told him to run, he took off running, it covered the miner up, it covered the shuttle car up; almost got three people. But one guy saved them all because he didn't have hearing protection in. You know, we've got to do the engineering controls; it's the first and foremost thing we've got to do. Forget about the feasibility, you know, if it's, -- there's all kinds of things out there to do. It's like Mr. Childers said awhile ago, you know, simple things could save lives. We've just got to make sure that it's done. Another thing, in your, -- in this policy it talks about physicians or audiologists. Physicians are not hearing specialists. And I think the word physician needs to be struck from the record. You know, we need somebody competent to go to school and knows about the hearing. And I thank you for your time. And we do, -- something new with hearing, some of the points in this rule is good points. But all of them, you know, we need to look at and make sure we do the right thing for everybody involved. And I thank you. MR. VALOSKI: Thank you. MR. BERGER: Are questions from the audience permitted? MR. VALOSKI: Yes. Come up to the podium, state your name, spell it and ask your question. MR. BERGER: Elliott Berger, E-L-L-I-O-T-T, Berger, B-E-R-G-E-R. Could you clarify on the example you gave of the three miners? As I heard it, one miner had no hearing protection, heard the roof crack? MR. GROSS: Correct. MR. BERGER: The other two miners, one who didn't have hearing protection and also didn't hear a crack, one had hearing protection and didn't hear a crack? MR. GROSS: Correct. MR. BERGER: A comment or a question I have perhaps of the three prior speakers. I agree that hearing protection in low noise levels will impede the ability to hear warning sounds or communication. It's clear though, from many, many research studies that if noise is present above a level of about 85 dB that hearing protection will have either no affect or may have a beneficial affect, unless the person has a substantial hearing loss. So my question on the roof crack issue is, are these people who are listening in quiet, the equipment has stopped and then they missed the crack because they had hearing protection in, or are you concerned about people trying to hear the roof cracks while they put the top rating? 'Cause as far as I can tell, while the equipment is operating if anything, they may have a better chance while the hearing a protection. The other concern I have is that if somebody, -- and I'm not addressing engineering noise control issues, that's certainly a valid concern. But if you have the noise, if somebody is now exposed to noise for eight, ten, twelve hours, and they're not wearing hearing protection, they will have a substantial temporary hearing loss at the end of the day due to that high level noise exposure. That hearing loss acts as though they're wearing a hearing protector. So somebody six hours into the shift who didn't wear hearing protection, has enough hearing loss that it's like they were wearing a hearing protector to begin with, and, they can't hear any sounds as well as they could. So, if the noise is present, and you know, the issue of engineering controls is separate, but if the noise is present, it seems to me, -- and perhaps these other gentlemen can verify that the hearing protection may be beneficial or not problematic. It's only when a noise isn't present or it's at a low level that the hearing protection is going to interfere with those abilities. MR. CHILDERS: Mr. Berger, excuse me. What was your question? MR. BERGER: My question was, the clarification at the beginning. In the example that was given what I wanted to clarify was that one of the people who didn't hear it, also did not have hearing protection in. So I don't know that the example shows that hearing protection is the problem. It may be that noise is the problem. And when noise is present you can't hear these sounds, it's not necessarily the case that the hearing protection is the problem. MR. GROSS: But one of them had the hearing protection in. The operator had it in. MR. BERGER: And he didn't hear it? MR. GROSS: He didn't hear it. You know, he's running a miner, he's got a shuttle cars behind him, you know, -- the cutting head's running, the conveyor's running on both pieces of equipment, he had hearing protectors and he didn't hear it topping. MR. BERGER: But the other guy who didn't have it in also didn't hear it. So, it may, -- MR. GROSS: Because of the noise of both pieces of equipment running. MR. BERGER: And, so, maybe if the noise is the problem hearing protection doesn't make it better, it doesn't make it worse. But if you're working in that high level noise, -- MR. GROSS: That's why if they do something to engineering controls we won't have to depend on the hearing aides (sic) to start with. MR. BERGER: And I agree with you on that. If you engineer it out so it's quiet enough that you don't need hearing protection. I'm addressing the issue if the noise is present, it's not clear to me that hearing protection makes it more hazardous. In fact, it may make it safer, if the given is, -- if the noise is there, or while it does exist. MR. GROSS: Mr. Berger, not being asinine, have you ever worked in a coal mine? MR. BERGER: I have not worked in a coal mine; I have been in a coal mine. MR. GROSS: Have you ever had to try to run from a 300 ton rock? MR. BERGER: No. MR. VALOSKI: Let's take a five minute break and we'll get back in five minutes. (Whereupon, at 10:35 a.m., the hearing was recessed, to reconvene this same day at 10:43 a.m.) MR. VALOSKI: I'd like to reconvene the meeting now. Our next speaker will be Randy Henry. MR. HENRY: Good morning, Mr. Moderator, ladies and gentlemen. My name is Randy Henry, H-E-N-R-Y. I work for Freeman United Coal Company, Crown 3 Mine, in Farmersville, Illinois. And I am the Local Union President of the United Mine Workers Local 12. More importantly, I'm a coal miner. I have been a coal miner for the last twenty years, off and on through layoff situations. I also operate the preparation plant at our facility. And I've done that since 1981, approximately fifteen years old. That job's responsibilities are the safe and effective operation of the preparation plant. That includes all the people encompassing in that preparation plant. To draw you a picture, the preparation plant is a multi-level facility, it's eight different floor levels. I have as many as five different people in that facility at a time while I'm trying to operate. And the communication with all the employees in that preparation plant are ultimately never safe, -- safety throughout the day. I want to emphasize their safety in the ability to communicate with them. We have no TV monitors. My eyes in the preparation plant are the eyes of my additional people in the plant. We run the plant, -- I run the plant by feel, hearing and sight. Those three main things to keep my people safe and I operate that plant to its optimum efficiency. It's imperative that we have that communication. If we go to a dual hearing protection requirement in a preparation plant, which most preparation plants that I've ever heard of would have to go to, to be in compliance, it would definitely impair the ability to communicate with the people that work around and with me for their safety. I have some real problems with, -- we have radio communications with our people and a dual hearing protection would definitely wipe out any possibility for them to be able to communicate with me. In the control room I have personally taken some measures to try and quiet that operating room down so that it is in compliance, so that I don't have to wear hearing protection throughout the entire day because of safe operation of the plant. I use my hearing just as much as I do my feel or my sight in operating that plant. It has been effective, the measures that I've taken trying to seal that room, as far as dampening the noise environment. But it also has given me the ability to be able to operate the plant. These engineering controls, -- and I'm just a coal miner, can be done much more effectively by an engineer. There are ways to dampen the noise in a preparation plant by putting plastic screens in instead of metal screens or stainless screens and a double-deck vibrator. Dryers can be quieted with insulation. Chutes can be lined with ceramic or plastic to deaden the sound. These are engineering controls that need to be considered, rather than double hearing protection for our people. I have a hearing loss, I know I do, or at least my wife says I do. But it is evident and it's due to the environment in which I work in. I shoot pistol on a competitive basis and I wear hearing protection, earmuffs. They're a high-cost dollar item that I wear, trying to protect what hearing I have left. And I shoot once or twice a month, but I do not shoot without hearing protection, period. But it's a lot better earmuffs than they even offer at the mine. These are for competitive- type earmuffs that have been professionally designed for high impact sound. Does anybody have any questions? THE PANEL: (No verbal response.) MR. VALOSKI: Thank you. MR. HENRY: Thank you. MR. VALOSKI: Our next speaker will be Jim Dunn. MR. DUNN: Good morning, Mr. Chairman, ladies and gentlemen of the panel. My name is Jim Dunn, D-U-N-N. I'm in the UMWA. I'm Chairman of the Safety Committee in Local 1793, Peabody Coal Company. And, what I'd like to say to the panel is that I hope you get the message that I think is being said here today that hearing protection is not the answer for this noise problem. It's a band-aid on an open wound. In the first place, the hearing protectors that are being offered, the method of evaluating them, we don't agree with. It should be on the basis of performance. But it's not the answer. Where's the technology motivating in this, -- in these parts that you want to add? You know, where's the technology motivated to improve the noise? You hear today that economics, they keep playing a big factor in everything. Or not feasible. You're not as young and re-employable, which I can explain to mean when their fathers come home and can't hear. You know, where do the economics play in there? And that's all I have to say. MR. VALOSKI: Thank you. Our next speaker will be Wayne Thompson. MR. THOMPSON: Good morning, Mr. Chairman, ladies and gentlemen of the panel. I'd like to address the proposed law, Section 62.125(A) and (B). Thompson, T-H-O-M-P-S-O-N. I'm sorry. I'm going to read it here. It says, "When hearing protection is required pursuant to this part an operator shall (A) allow the miner after such miner has received the training specified by Section 62.130 at least once, to choose a hearing protector from at least one muff type and one plug type. And in the event dual hearing protection is required, to choose one of each type. (B) In most cases in which the operator is required to ensure the use by a miner of hearing protectors, ensure that the protector is worn by the miner when exposed to sound levels which are required to be integrated into a miner's noise exposure measurements". I'd like to comment on (A). Providing a miner with a choice between one muff type and one plug type hearing protector makes a mockery of having a choice of hearing protectors to use. Miners should have a meaningful range to chose from. And on (B). This seems to require that if a miner is required to wear a hearing protector based on exposure to noise at or above the action level of 85 decibels, then the miner would be required to wear it when he or she is exposed to sound levels which are required to be integrated into a miner's exposure measurements, example, 80 decibels. And you know, you see Section 60.120(a)(3) on that. This would mean the miner would have to wear his hearing protectors practically all the time. This is simply not practical. And I would like to address something personally to add for me. I'm a scoop operator. We have six out-by scoops, -- I'm an out-by scoop operator; load a lot of rock parts. We had one scoop that the pump motor was noisy on; had one of the other out-by scoop operators complain about it. Well, the company's response was, "Well, we'll just simply put hearing protectors on everyone". I depend on my ears tremendously loading rock parts because I'm scooping out the rock before the pinner comes in and pins. And so I tried to wear the hearing protectors. The very first rock fall that I was on, -- and it don't always happen, had a load of rock, started to back out from under the rock fall, the top yield, about 4 foot of rock come in, the rocks slide down the bucket in the limestone, about a 6 foot piece of rock, about 4 foot thick. If I had, -- I believe, that if I hadn't been wearing those hearing protectors that I could have heard that rock fall when I was in there scooping. But I could not hear it because I was wearing them hearing protector. And what we're trying to say here is that if the technology is there to engineer these scoops and stuff to where we can listen. We don't have to fight the pump motor problems and everything. Just quieten (sic), quieten (sic) them down. Quiet the machinery down. Thanks a lot. MR. VALOSKI: Thank you. Our next speaker will be Randy Wildermuth. MR. WILDERMUTH: Good morning. Randy Wildermuth, W-I-L-D-E-R-M-U-T-H. I'm a Safety Committeeman at Consolidation Coal, Burn Star Number 4 Mine in Cutler, Illinois. And it's a service operation. And I guess I'm going to be addressing the same problems so many other people have today, is that it's not enough done to do away with the noise, most of the time the first thing they want to do is to use hearing protection. We have one instance, we have a B-10 Caterpillar Tractor, a dozer, it's got an extremely loud hydraulic pump. It falls under 90, 87, 88, 89 depth dB. Everyone wants to change it except the superintendent, strictly because it costs and he doesn't have to. And it's happened over the years with transmissions, different things that can become extremely noisy and because they don't have to, they won't change them. And our operators, it's true, they wear, -- everyone wears hearing protection. But why not do what we can to eliminate the noise, especially when we know the problem. And this has, -- since it's a hydraulic pump, it's not going to last; it's lasted a year longer than it should have, but because our superintendent, -- even the Safety Director would like to change it. But to the superintendent, it's strictly a cost thing. Like I said, this is a surface operation in the shop areas, it's not practical to wear hearing protection because so often you're working with another person and you're communicating back and forth what you're doing with overhead hoists, large tires, what have you, and you've got to hear each other, what action you're going to be taking. And quite often there's air arcing and grinding, sledging going on in your area, most of the time these, -- or quite often, these operations can be isolated from the main workforce. But, because it's inconvenient, you complain about it, they tell you to wear your hearing protection. And it's not practical. You take one problem away and you make another one far worse. Air starters on large diesel equipment; I don't know if you're familiar with them, but they're, -- some of them are extremely noisy. In a shop it's like an echo chamber. They hit these starters and it dumps a huge amount of air into an air starter and it's deafening for a certain period, -- short period of time. It's true because the average doesn't add up to over (90) during the day, but this accumulated effect of sledging and high noises adds up day in and day out, and so often they can be eliminated. Like these air starters, the new starters that they buy, which is a rarity, 'cause they usually rebuild the old ones, but the new starters are what they call "turbo starters," are extremely quiet. They're not going to buy them because of the expense and that's another example of how they could eliminate extreme noises by buying new ones, but they continue to be, -- rebuilding these old ones, just, again, for the, -- 'cause of the cost. But, again, at surface insulations, especially in the shop area, so often these extreme noises could be isolated from the main workforce, and only the people that do grinding or air arcing would have to do it, -- could be around the noise. But because of the inconvenience, you're told to put earplugs in or do whatever and, -- because they don't have to. And that's a problem we have there, it's always that they don't have to, because your average dB for the day will be under (90), and the extreme noises aren't taken into consideration. And I thank you. MR. THAXTON: Excuse me. Which mine did you say you worked at? MR. WILDERMUTH: Consolidation Coal, Burn Star Number 4, in Cutler, Illinois. MR. THAXTON: Thank you. MR. VALOSKI: Thank you. Our next speaker will be Pat Leet. MS. LEET: Good morning. My name is Patricia Leet, P-A-T-R-I-C-I-A, L-E-E-T. I work for Peabody Coal Company, Camp 9, in Union County in Waverly, Kentucky. I have been employed by Peabody for twenty years. I work in a preparation plant where I'm exposed to constant, continuous noise on a daily basis. Two of the issues that I would like to talk to you about today are the self-enforcement by the operators. When I was a kid and my mother and father would have a disagreement I would hear my mother make a statement to my father, "Well, Arley, if you're going to let the fox guard the chicken house we'll not have any eggs in the morning". However humorous that sounds, history has taught us that that is true; that we have to guard ourselves and other people and our property, our financial status and everything else we do in life, we have to be responsible for it. I believe that we must take responsibility for our own health and safety, as well as those of our fellow miners. And we must demand that MSHA does not shift their job solely to the operator. And going back to what Mr. Becker said, there is no such thing as a forty hour work week. I work seven days a week periodically for sixteen hours on Sunday (sic). Going to the second point in the proposed rule, is the redefinition of a small entity to include mines employing less than five hundred people. Mr. Becker stated that they had three hundred and some odd people. This is amazing to me, because we have forty-one. Which we are a small operation, we're a preparation plant. But in this day and age you don't hear of large mines anymore due to cutbacks and competition. And who are we to say that one person is not as important as five hundred? We owe these people the most protection that we can give them. And that's all I had to say today. MR. VALOSKI: Any questions? THE PANEL: (No verbal response.) MR. VALOSKI: Thank you. Our last scheduled speaker is Mike Dillingham. MR. DILLINGHAM: Thank you. My name's Michael Dillingham, D-I-L-L-I-N-G-H-A-M. I'd like to thank y'all today for letting me speak. I've listened to everybody's testimony this morning and it's covered a big, wide spectrum, but I think most of the people's concerns is that noise is a big factor in the coal mines. And, myself, I personally don't feel that hearing protection over innovative engineering is going to help that much. I heard some discussion at the break where they were talking about coal miners wearing ear protection; could you not hear over the roof in case you were having a roof problem? I'll give you a scenario that happened to me. I was the fire boss walking the belt, I was coming up on the working section, I had finished walking the belt except for about from here to that wall. MR. VALOSKI: Now, let the record show, -- MR. DILLINGHAM: About 20, 25 foot. MR. VALOSKI: Thank you. MR. DILLINGHAM: And I came up on the tail where the feeder was sitting, of course the big breaker was running, it was crunching rocks and coal, and I was making my initials in that spot, 'cause that was my last point of check. I made my initials, I started to turn and walk by the feeder to make a visual hit, and something told me to stop. At the same time I heard three loud cracks that sounded just like a .22 rifle or a pistol shot and I stopped. And immediately in front of me; which the roof is bolted from 4 foot to the rib-line, there's a 4 foot span, there was a chunk of rock fell out approximately 8 foot long, 6 inches thick and 4 foot wide. If I had not heard those three snaps I would have been under that rock. I did not have hearing protection in. And I'm not saying if I had of had it in I would not heard that, but I think it would have been a factor where it could have deterred what I would have heard. I've been coal mining for twenty-three years. I worked the surface, underground, mine construction, -- what we have at our mine is, -- they supply the law; they go in, they make noise surveys; they post them. They give you a box of earplugs over there, and say, "There they are if you want them. There they are if you don't. That's up to you". I work in a Prep Plant now, I've worked underground. I work in Prep Plant where, like these guys and lady just stated, that there's a lot of noise due to the vibrators, the shakers and everything involved. We're supposed to have a controlled atmosphere in our control room, where it's dust-free, noise-free. Well, here's how our company handled it. We were having a lot of dust problems inside our computer room, instead of making the room dust-free or to where it will not be exposed to outside elements, their solution is, we allotted twenty thousand dollars ($20,000.00) to get a new computer 'cause the coal dust ate it up. Instead of going with engineers and getting something there to reduce the dust levels in this operation, they went more to just spending money, "Let's get a new computer". So that shows you what the companies are going to do for us. I feel that we need a miners' rep to monitor and be a part of this noise sampling. I don't feel that the companies are trustworthy to do this on their own. It's like we stated, you don't put a fox to guard the chicken house, 'cause you can't trust that he ain't going to eat one while you ain't looking. So, therefore, I feel like that, -- I appreciate what you're trying to do here on this noise and stuff. And it's just like the respirable dust, the diesel rigs, we're falling short for the coal miner. The coal miner needs to be a little bit more protected, because until you live the way he does and in the atmosphere he does, then it's hard to make a decision of what to do for him. That's why he should try to take care of his-self (sic) and everybody should look to try to take care of them for you. Thank you. MR. VALOSKI: Thank you. Now we're going to go to the speakers who signed up today. The first speaker that signed up today is William A. Hubiak. I hope I pronounced it correctly. MR. HUBIAK: My name is William Hubiak, H-U-B-I-A-K. I'm here representing Grand De Malaney (phonetic) Company. I'd like to thank the panel for giving me the opportunity to speak today. I have over twenty years experience in the coal mine industry. This includes both underground, surface and most recently in my career, coal preparation. The evolution in training with our mining people in the industry has come a long way in advancement in the twenty years that I've been around. We have made our people more and more aware of the hazards and the dangers that they face on a daily basis. And this includes damage to hearing. I have seen in these twenty years more and more of the workforce become personally responsible for their hearing protection, as well as other protections. The last two years I've been the Manager for the Preparation and Loading Dock facility for this company, which employees sixteen hourly people. And I have four supervisors under my control. And of these sixteen individuals we have no plan, no enforcement of hearing protection. We afford it to the employees and the supervisors, and we have 100 percent utilization at this facility. We offer them a, -- different methods of hearing protection, earmuffs and two different styles of the form earplugs. We have found that different operators, whether on mobile equipment, and a person's natural ear size and whatever their features are, or not conducive to each individual type of hearing protection. So, we try to give the employee what they want, so they'll wear it. We have found that ten, out of our sixteen hourly employees, wear the ear foams and the muffs, they're great for their, you know, longevity. And life can be a hazardous and hostile environment in a preparation facility. And six of the other employees wear the foam earplugs. And mostly they're on the loading dock and on the mobile equipment, which consists of 988(s), occasionally bulldozers. We also supply our employees with radios, 'cause communication is the essence in all operations, for both safety and productivity in a dangerous environment. We supply these radios with ear jacks so that the hearing protection that's afforded to them is not impaired at any time. It runs up through the, -- they bring them up through your shirt, take them off, put them inside your earmuffs. I commend my men for doing this without being prodded into having to do such things, because they've become more aware of the dangers. Our workforce at this mine is not of, -- consists of more middle aged than younger miners, compared to the national workforce average age. And I think that most of the younger generation of miners, and I'm talking in their thirties and early forties, are more aware of the hazards and dangers of prolonged hearing decibel high level ranges and the effect that it can have on it. We try to give them something that's comfortable. Everybody's talked about the forty hour work week, or more. So, if you're going to have something on for a duration longer than eight hours, up to twelve hours, which we work twelve hour shifts, doing preventative maintenance. Of course, during preventative maintenance the plant's not in operation and we do not have all that noise. But we try to give them something that's comfortable for them to wear. The mobile equipment operators are under the same routine. They are afforded different earplugs also and the majority of the mobile equipment workers at the surface operation that feeds this preparation plant, wear their's also. Our preparation facility is a five level structure. And the basic engineering mechanism by which the coal is prepared and separated makes the engineering controls for the mechanisms by which the coal is separated and processed. Engineering can have very little effect on reducing the total decibel level, just by the nature of the mechanisms, by vibrating, -- in the conveyor motions, the vibrators, the dryers and the crushers, the rotary breaker. By enclosing these things and dampening the sound would lead to a potential for liberating methane gas in operations that have methane inherent in your coal. It's something to be considered. Also cause mechanical problems which cite to everything in a preparation plant is looked at by how well everything is flowing through a circuit; the bins of coal on the vibrating screens how well the circuit is feeding. The coal on the screens have a dampening effect of the total noise level when that mechanism is running while being not under level. These things need to be looked at. The cost of upgrading preparation facilities to the newest levels right now, would be cost-prohibitive to a small operator, such as which we are, under the two million tons a year. The technology is not out there at this time to do things to where I think these levels which are being required in the 85 decibel range are in our grasp. I think that what we do with the hearing protection afforded to the people at this level, is the greatest enhancement we can do at this point. I would recommend that in the future that all engineering design should try to dampen levels. But I think that cost-prohibitive and what we have in today's market in the coal industry is not the avenue of engineering controls. The rugged environment which mobile equipment works, -- yes, manufacturers have come out with great cab designs and sound damage assistance. But after a few years in these operations, an equipment life being extended out on five, ten years, under these kind of conditions, even with rebuilds, makes it practically impossible to keep the conditions of an operator's cab completely enclosed and sound-dampened. You can not afford to operate and replace equipment on a yearly basis. And it's because of the hostile environment in which it works. Therefore, the hearing protection is one of the main things that helps each individual operator protect their own individual hearing. I think that if you look through the records in the past because we had so much hearing loss is because people were not aware of the dangers and thought, "Well, if the other guy don't wear it, why should I". I think that it's changed. And through training and making our people aware of the dangers they become more cognizant of the dangers and do something about it. I'd like to thank everybody for the time. If there's any questions, -- MR. VALOSKI: I'd like to ask a question. You said that future designs for noise control in prep plants, -- are you advocating a grandfathering, so to speak, of the current preparation facilities from engineering noise controls? MR. HUBIAK: Yes, you could say that. Until plants can be ungraded, I think, to new future things, new designs, they should try to make things as quiet as possible. In preparation, less noise means less vibration, which means less wear and tear on a piece of equipment, which enhances its life, which, -- and lower maintenance cost, greater operational and lower the cost for coal production itself, for the longevity of coal mining itself. I think that's something that's reasonable and should be looked at in the future, trying to upgrade each individual plant. The plant that I operate is only eight years old. It's not an ancient dinosaur. And it would be very cost-prohibitive for something that runs under, -- we only run a maximum of 425 tons an hour, we don't have a mega plant. MR. THAXTON: You mentioned that you have 988 end loaders, -- MR. HUBIAK: Correct. MR. THAXTON: -- that have cabs on them. But it's cost-prohibitive to maintain those cabs. What kind of cost figures are you looking at in cab maintenance? MR. HUBIAK: Basically a piece of equipment, any mobile equipment, such as a bulldozer or a end-loader, the cab is separated from the actual frame of the machine, it's got rubber bushings mounted on it, vibration on it, the insulation inside the cab can be replaced, but the doors and windows through the cost of twisting and turning will become worn and make it impossible to make a tight seal to downgrade all outside noises. Basically, your noise in a end-loader comes from the engine, your turbo chargers, your hydraulic pumps and transmission. So, under years of abuse, in a 988 end-loader, ours is a, -- '88 models; we're trying to replace them now, but you're looking at a piece of equipment that's ten years old. To try to keep the cab in a maintained environment and a hostile area, with erosion and contamination due to the coal fires, working around stockpile areas which cause rust and things to fit, -- of the cab assembly itself, it would become cost-prohibitive on a yearly basis. MR. THAXTON: But do you have any cost figures? You say it's cost, -- MR. HUBIAK: No, I don't have any figures. MS. FONTAINE: Is that something you could submit at a later time? MR. HUBIAK: Yes. We could probably put something together on that. MR. VALOSKI: Okay. Questions from the audience, please direct them towards us, not towards the speaker. We're not here for a debate between you and the speaker. COMMENT FROM THE FLOOR: Yes sir. I would like to know if his company requires mandatory hearing protection? MR. VALOSKI: He answered that in the, -- COMMENT FROM THE FLOOR: I understand that. But there's a, -- you know, I realize where he works at, I realize where he's coming from, he's coming from the company's standpoint. I just wondered if there is? MR. VALOSKI: When he started his, -- COMMENT FROM THE FLOOR: These employees do have the right to refuse to wear hearing protection. MR. VALOSKI: At the beginning of his statement he answered that question, which was that they did not have a mandatory policy of wearing hearing protectors. COMMENT FROM THE FLOOR: Okay. I'm sorry. MR. VALOSKI: Yes. MR. HENRY: Getting back when you were talking about cost control, you know, I must have heard the feasibility y'all mentioned over and over again, you know, he reiterated that, you know, it costs too much money. But I'd like to know in his prep plant what kind of screens, -- does he have metal screens, plastic screens, you know. The difference in cost between the plastic and the metal is not that much difference. And the plastic, you know, lasts a lot longer. You know, the sound, I don't know what they've got, but, you know, the cost is not that much of a difference with the plastic screens and the metal screens. MR. VALOSKI: We'll take that into consideration. Thank you. MR. HUBIAK: Can I answer his question? MR. VALOSKI: If you wish. MR. HUBIAK: Yeah. Our plant employs both, plastic and metal screen types on our shakers. MR. VALOSKI: Okay. Thank you. MS. PILATE: I'd like to add something. When you do submit your written comments, I have a request that you specify for each engineering control that you've mentioned, that you believe is cost-prohibitive, that you specify the actual cost of it, as well as the average life of those engineering controls. MR. VALOSKI: Okay. COMMENT FROM THE FLOOR: It's not a question to him, it, -- he'll say he's not technology feasible to keep these, -- maintenance up on these (sic) equipment and the screens on it. What is the profit margin there that makes that call? How much money do you have to make before you can do a maintenance program? Do you make a profit? The question I guess is, how much of the profit does it make that feasible? Am I making any sense there? MR. VALOSKI: Yes. We'll take it into consideration. And we do the economic impact analysis based upon new information that we receive. Thank you. Our next speaker is Jan Osterud. MR. OSTERUD: Good morning, ladies and gentlemen. I appreciate being able to speak to you this morning. My name is Jan, J-A-N, Osterud, O-S-T-E-R-U-D. I've been a coal miner over twenty years. I was employed at, -- for AMAC at HR Mine for eighteen and a half years. It was a union mine. I learned early on, through their annual safety specialty training, of noise levels of different equipment, bulldozers, dragline harnesses, preparation plant, and it made impressions upon me early on of what protection, -- personal protective equipment would afford me, if I would use it. So, I used that equipment that was available to me pretty much 100 percent of the time. Because I felt that the environment was hazardous to my hearing and I used my association with the work I did was twelve years in heavy equipment, most of it on scraper, bulldozer. And it was easy for me to wear that. It wasn't uncomfortable, I got used to doing it. By using that equipment, the protective ear equipment, it calmed down, -- being in that equipment hour after hour, it calmed down the, -- I guess you'd call it the stress you'd feel from the noise. And it made it easier to do that work. Three years of that eighteen and a half years I was in their preparation plant where the noise levels were higher than the bulldozer equipment. And I can't imagine not using the ear protection in that environment. I can sympathize with other people as far as wanting extra hearing to hear people and being able to have that extra hearing, but I don't have any reservations about not using hearing protection in a coal facility. At the HR Mine, the equipment was readily available, the ear protection. We could go to the warehouse and get different types of ear protection when we wanted it. Where I work now is Grand Eagle Mine and Peabody Mine, the same location. Bill had just spoke before I, when he was up here. The equipment is available, it's not mandatory, but the people I'm around with there, they use that, because they have been around people that have not used ear protection and they have hearing loss from not using ear protection. So, pretty much the majority of the people use ear protection. The person that I work with, the operator, he, -- the first mine I worked at he was there at the beginning, at the preparation plant. He was there for almost twenty years. He did not use ear protection and he has ringing in his ears right now and he's younger than I am. And I feel that by ear protection being afforded to me and being allowed to use it, I believe that that is why my hearing is still intact. And I appreciate the annual retraining that I had that told me about that, shared the noise levels and what could happen. And I believe that my level of hearing is that well because of ear protection. That's all I have to say. MR. VALOSKI: Any questions? You said at the previous mine that you could get, -- choose from a selection. How many hearing protectors were you afforded a choice from? MR. OSTERUD: There was just two, but through the years they changed different muff designs. So, basically, just two, but there were periodically, upgrades of different muffs. MR. VALOSKI: Okay. MR. THAXTON: Have you ever had an audiometric exam? MR. OSTERUD: Yes. MR. THAXTON: How often? MR. OSTERUD: Probably the recent one was when I was hired on at Grand, which was probably three years ago. MR. THAXTON: Have you had them before that? MR. OSTERUD: Yes. It was probably maybe ten years before that. It was probably ten years into working, -- my history, I had it, and then not quite often, but probably two. MR. THAXTON: Has the results of those audiograms indicated that your hearing has not suffered from the exposure and the environment? MR. OSTERUD: Yes. MS. PILATE: How long did it take to have the exam? MR. OSTERUD: It was pretty extensive, maybe around thirty minutes or so. MS. PILATE: And that was company-paid? MR. OSTERUD: Well, it seems like, -- I don't know exactly. I've had a couple. I can't say for sure if that's correct or not. But through my association with, -- like in environments where I hear with my daughter or hear with my wife, I don't have any loss as far as, you know, "Did you hear that," or "I can hear that, too". Little beeps of sound that would come from being in different areas, like backup (indiscernible) equipment would be operating like in the neighborhood or something and I would ask them, you know, "Can you hear that sound?" And sometimes they would say, "No," so I guess I'm assuming that recently, like right now, my hearing protection is, you know, as good as it can be. MR. VALOSKI: Okay. Thank you. Our next speaker who signed up is Jeff Gurley. MR. GURLEY: My name is Jeff Gurley, and it's G-U-R-L-E-Y. And I'm employed by the coal company. I appreciate the opportunity to speak this morning and I'll try to keep my comments as brief as possible. The mining industry is unique and we were forced into several situations that rely, -- force us heavily to rely on personal protective equipment to ensure compliance with workplace noise requirements. Most of this is due to noise sources that are unable to be controlled or reduced, using current technology. A few examples of some of these are: the nature of mining itself is that coal and rock are ground and cut, using bits. This grinding/cutting introduces high noise levels into the work environment. In an effort to reduce dust, we've also introduced flood-a-bed (phonetic) scrubbers in the workplace. These scrubbers move high volumes of air and have resulted in substantial reductions of respirable dust levels. But the velocity of air also increases the noise level in the workplace. Then we work in an environment where we have roof, rib and floor that encloses the area and allows the noise levels to accumulate. Our coal company's installed some of the latest engineering controls that are available. They use things such as noise deadening tails on a continuous miner. Installation packages on scrubbers. Our chief's even changed the take-ups on the conveyors, to eliminate slapping of the conveyor chain. And things like that. However, we're unable to reduce the noise levels in all instances to the levels that are required through compliance in the regulations. Other engineering controls such enclosures, barriers and noise curtains, absorption of vibration, isolation, are not very practical, or not always practical for use in underground coal mines. Due to the moving of equipment, the rapidly changing environment we work in. It's been talked about earlier, a lot of our operation is signaled toward the UMWA-VCO Contract. And this agreement does limit flexibility on just placing people, as far as administrative controls are concerned. As I stated above, we are a unique industry when it comes to controlling noise. OSHA allows for the use of personal protective equipment in their compliance strategy. Most of the injuries, -- most of their industries that can deal with more hurdles than we're forced to deal with in ours. Some people feel that hearing protection reduces their safety by preventing them from hearing the top work and speech communications. This is not necessarily true, as was mentioned earlier by Mr. Berger. Hearing protection is designed to protect the wearer from, -- preventing noise from entering the ear, and it's effective in doing this. Hearing protection, however, is not effective at all noise ranges, 'cause a study showed it, -- at all frequency ranges, I'm sorry. The higher frequencies in high noise levels is more effective than at the lower frequencies. This in time widens the gap between the perceived levels of low and high frequency and most of these warning signs are in the low frequency range, they're not high frequency noise. So after adjustment it's usually easier to hear these noise with hearing protection than without. When looking at noise control strategies, cost must be weighed against the benefit. Let's take a continuous miner for example. A continuous miner, there are multiple noise sources. A few of these sources of motors, scrubber, conveyor, deer cases (phonetic) on the beds to pick up the coal. If each of these five sources produce 90 decibels each, the cumulative result would be 97 decibels in the workplace. If we use technology to reduce two of these sources to 70 decibels or dBA, the cumulative result would be 95 dBA in the workplace still. That's only a reduction of 2 dBA. If three of those five sources were reduced to 70 dBA, the cumulative result would still be 93 dBA. The cost to achieve those reductions on those items would be high. The cumulative effect of noise in the workplace makes controlling noise without personal protective equipment a crap shoot. For example, put ten sources of noise and each of those sources produced 80 dBA, all less than 50 percent of the proposed action level, the cumulative noise level would be 90 dBA. That's in excess of 200 percent of the proposed action level. With the ever changing environment that we work in we can still have noise sources that are well within compliance levels. However, due to the cumulative effect they would not be in compliance. Without credit for personal protective equipment we can not truly ensure the compliance of proposed noise levels as protection of our people. Keep in mind, hearing loss is not only caused by exposure to the workplace, activities away from work, such as farming, hunting, -- and activities like those, do also contribute to hearing loss. And, additionally, the age of a coal miner, the average age has increased and hearing loss also increases with that. The protection of our workers from injury and illness is important to our company, the coal industry and myself. I feel that the Government's efforts could be used better, to improve the technology in reducing the health and safety risks in the workplace. Thank you. MR. THAXTON: Mr. Gurley, what position do you hold? MR. GURLEY: Safety Supervisor. MS. PILATE: For the engineering controls that you mentioned that your mine does use, the noise dampening tapes and the insulation for scrubbers, do you have a figure on how much the engineering controls costs? MR. GURLEY: I do not. MS. PILATE: Is it something that you might be able to provide us with at a later time? MR. GURLEY: I can try, yes. MS. PILATE: And you mentioned the, -- some of the impractical engineering controls, such as curtains, and other engineering controls you couldn't use. And that was only due to the fact that those would be attached to mobile equipment? MR. GURLEY: Not necessarily. The confined workplace that we're involved in, to place a, -- for example, to place a screen or curtain between an operator and the head of the miner, would be impractical most of the time in every instance I can think of. MS. PILATE: Does your company ever have to send your miners for hearing tests? MR. GURLEY: Pardon? MS. PILATE: Does your company ever have to send miners for hearing tests? MR. GURLEY: We have, but not in many years. But we do a pre-employment physical. MR. VALOSKI: Anything else? You all need to remember to direct your questions towards us. We're not here for a big debate between you and the speakers. MR. BERGER: I would like a point of clarification. Mike Dillingham, an earlier presenter, gave a personal example of hearing the roof talk, and said that it sounded like a gun discharge, which would be primarily a middle high frequency type of sound. Mr. Gurley, who's speaking now, said that the warning sounds that miners need to hear are primarily low frequency sounds. And I'm wondering are they talking about different sorts of warning sounds or are they both describing roof talk and describing it differently? MR. VALOSKI: My sense is that one's a warning signal on equipment. With the last gentleman he was talking about warning signals on equipment, whereas Mr. Dillingham was talking about sounds that come from the roof, which were two different sound sources. MR. BERGER: Could you ask the speaker to clarify that? That wasn't my understanding listening to them, but you may be right on that. MR. GURLEY: My comment dealt with roof warning signs, the top working, that type of sound. And I'd say those are low, to possibly mid frequencies. MR. VALOSKI: Okay. Thank you. Yes. COMMENT FROM THE FLOOR: Mr. Moderator, just to clarify Elliott's question. A lot of times these are not constant sounds, they're variable. Sometime those roof indicator noises can be low pitch or they can be high pitched, depending on the size, the weight, the height, things of that nature. So it can be variable. MR. VALOSKI: Thank you. Those are the only speakers that we have listed. Mr. Urban, requested to address us after all the testimony was done. MR. URBAN: Thank you, sir, for allowing number one, United Mine Workers to be a part of this process. Getting back to a couple of questions I have now for the panel. In the new proposal, the proposal speaks of once we reach an exposure level, overexposure level, then it's a requirement for both engineering controls and administrative controls to be put in place. Is that correct? MR. VALOSKI: Yes. MR. URBAN: Okay. To what degree of each? MR. VALOSKI: I can't answer that question. MR. URBAN: Something the panel needs to consider. MR. VALOSKI: We will consider your comment about how much of each control needs to be implemented. As it currently is written in the proposal, both of them must be utilized. MR. URBAN: But it doesn't stipulate to what degree. MR. VALOSKI: It does not stipulate to what degree. MR. URBAN: My second question, we looked in the regulation, 30 CFR 77.404 or 75.1725(a). There are safeguards built in those particular regulations that requires either surface or underground, that operators maintain equipment in safe operating conditions. Now mainly that's always has been applied to the physical safety aspect of equipment. Again, another consideration for the panel. Let's do that, perhaps. Safety is not just physical safety, health and safety. Thank you. MR. VALOSKI: As there are no other speakers, the panel will take a lunch break and we'll reconvene at 1:30. Thank you. (Whereupon, at 11:45 a.m., the hearing was recessed, to reconvene this same day at 1:30 p.m.) MR. VALOSKI: Okay. It's now 1:30 in the afternoon. We have no people in the audience and nobody else has signed up, so we're going to take another recess for sixty minutes. (Whereupon, at 1:31 p.m., the hearing was recessed, to reconvene this same day at 2:30 p.m.) MR. VALOSKI: Okay. It's now 2:30, we have nobody in the audience and nobody assigned to give testimony. Therefore, we're going to take another sixty minute recess. Thank you. (Whereupon, at 2:31 p.m., the hearing was recessed, to reconvene this same day at 3:30 p.m.) MR. VALOSKI: Okay. It's now, -- it is 3:30. We still have nobody in the audience and nobody signed up to present testimony. Therefore, we'll take another sixty minute recess. Thank you. (Whereupon, at 3:31 p.m., the hearing was recessed, to reconvene this same day at 4:30 p.m.) MR. VALOSKI: Okay. It is now 4:30. We still have nobody in the audience and nobody has signed up to speak. Therefore, we will recess the public hearing until five o'clock. Thank you. (Whereupon, at 4:30 p.m., the hearing was recessed, to reconvene this same day at 5:00 p.m.) // // // MR. VALOSKI: It is now 5 p.m., there is still nobody in the audience and nobody has signed up. Therefore, we're going to close the record for the day. Thank you for coming. (Whereupon, at 5:00 p.m., the hearing was concluded.) // // // // // // // // // // // // // // // // // // // REPORTER'S CERTIFICATE I, WANDA SUKOVSKY , reporter, hereby certify that the foregoing transcript consisting of 94 pages is a complete, true, and accurate transcript of the testimony indicated, held on May 8, 1997 at The Harley Hotel, 3400 Rider Trail, St. Louis, Missouri In the Matter of: The Public Hearing Re: Exposure in Coal, Metal, and Nonmetal Mines; Proposed Rule I further certify that this proceeding was recorded by me, and that the foregoing transcript has been prepared under my direction. Date: May 10, 1997 Official Reporter Heritage Reporting Corp. 1220 L Street, N.W. Washington, D.C. 20005