0001 1 2 U.S. DEPARTMENT OF LABOR 3 MINE SAFETY AND HEALTH ADMINISTRATION 4 5 6 PUBLIC HEARING ON 7 EMERGENCY TEMPORARY STANDARD 8 SEALING OF ABANDONED AREAS - FINAL RULE 9 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 14 15 16 Crowne Plaza Hotel 17 1375 South Broadway 18 Lexington, Kentucky 40504 19 20 21 July 12, 2007 22 23 24 25 0002 1 PROCEEDINGS 2 3 (Hearing was called to order at 9:14 a.m.) 4 5 MS. SILVEY: Good morning. I'd like to get 6 started, for those of you in the back, please. 7 Again, good morning. My name is Patricia W. Silvey 8 and I am the Director of Department of Labor Mine 9 Safety and Health Administration, Office of Standards 10 Regulations and Variances. 11 I will be the moderator of this public 12 hearing on MSHA's Emergency Temporary Standard, or 13 ETS, for sealing abandoned areas in underground coal 14 mines. 15 On behalf of Richard E. Stickler, the 16 Assistant Secretary of Labor for Mine Safety and 17 Health, I want to welcome all of you here today. 18 And I want to underscore, at this point, 19 our appreciation for your participation in this 20 rulemaking, and for your attendance and for your 21 attention and interest in all of MSHA's activities. 22 At this time I would like to introduce 23 the members of the panel. The members of the panel 24 are to my left, John Urosek, and John is with MSHA's 25 Pittsburgh Health and Safety Technology Center. To 0003 1 his left, Deborah Green, and Deborah Green is our 2 lawyer with the Office of the Solicitor. 3 And to her left, Ron Ford. Ron Ford is 4 the economist on this project and he is from my 5 office. 6 To my right, Erik Sherer. Erik is with 7 the Coal Mine Safety and Health, and to his right 8 William Baughman, and he is the regulatory specialist 9 from my office. 10 And I would also like to introduce at 11 this time a few people in the audience who were also 12 instrumental in working on this project and helping 13 us develop this ETS and such, in an expeditious 14 fashion. 15 We have on the front row here, Javier 16 Romanach is with the Office of the Solicitor. 17 Clete Stephan with MSHA's Office of Tech 18 Support, Rosalind Fontane with the Office of Tech 19 Support, and Pamela Keene in the back by the table 20 who is with my office. And the people that I just 21 named were part of the committee that was just 22 instrumental in developing the ETS. 23 Before we start the hearing, I would like 24 to ask if everyone in this room would join me in a 25 moment of silence in memory of the miners who died in 0004 1 the Sago, the Alma and the Darby accident in 2006, 2 and also all of the miners who died in the year 2006 3 and who have lost their lives so far in mining 4 accidents in this country. 5 And I would also ask if we would do this 6 moment of silence in memory of the miners who have 7 lost their lives worldwide. So if you would join me 8 in a moment of silence, I would appreciate it. 9 (Moment of silence.) Thank you. As some of you know, 10 this is the second of four hearings on MSHA's 11 emergency temporary standard. The first hearing was 12 held in Morgantown on Tuesday. The next hearing will 13 be held in Denver, Colorado on July 17th, and the 14 fourth will be in Birmingham, Alabama on July 19th. 15 In the back of the room we have copies of 16 the ETS and the Federal Register notice extending the 17 comment period to August 17th. The purpose of these 18 hearings, as many of you who participated in MSHA's 19 rule makings know, is to allow the Agency to receive 20 information from the public that will help us 21 evaluate the requirements in the ETS and produce the 22 final rule that protects miners from hazards 23 associated with sealed abandoned areas. 24 We will also use the data and information 25 gained from these hearings to help us craft a rule 0005 1 that responds to the needs and concerns of the mining 2 public, so that the provisions of the ETS can be 3 implemented in the most safe, effective and 4 appropriate manner. 5 We published the ETS in response to the 6 grave dangers that miners face when underground seals 7 separating abandoned areas from active workings fail. 8 Seal failures at the Sago Mine and the 9 Darby No. 1 Mine in 2006 raised awareness of the 10 problems with the construction and design of 11 alternative seals. 12 MSHA investigated these and other 13 failures of alternative seals, and conducted in mine 14 evaluations of these seals. MSHA also reviewed the 15 history of seals in the United States and other 16 countries. On February 8th, 2007, NIOSH issued a 17 draft report entitled "Explosion Pressure Design 18 Criteria for New Seals in U.S. Coal Mines. 19 The report makes recommendations for seal 20 design criteria which would reduce the risk of seal 21 failure due to explosions in abandoned areas of 22 underground coal mines. Based on MSHA's accident 23 investigation reports, the draft NIOSH report, MSHA's 24 in mine seal evaluations, and review of technical 25 literature, MSHA has determined that new standards 0006 1 are necessary to immediately protect miners from 2 hazards associated with sealed areas. 3 The emergency temporary standard 4 addresses seal strength, design and installation, 5 construction and repair, sampling and monitoring and 6 training. This ETS was issued in accordance with 7 Section 101 (b) of the Federal Mine Safety and Health 8 Act of 1977, the Mine Act, and Section 10 of the Mine 9 Improvement and New Emergency Response of the Mine 10 Act of 2006. 11 Under Section 101 (B) of the Mine Act, 12 the ETS is effective until superseded by a mandatory 13 standard. A mandatory standard under the Mine Act 14 must be published no later than nine months after 15 publication of the ETS. 16 And also in accordance with the Mine Act, 17 the ETS serves as the proposed rule and commences 18 this rulemaking proceeding. As stated earlier, we 19 would use the information provided by you to help us 20 decide how best to craft the final rule. 21 The preamble to the rule discusses the 22 provisions of the ETS and indicates a number of 23 specific requests for comment and information. As 24 you address the provisions of the ETS, and any 25 specific requests for comment, even in your comments 0007 1 to us here today, or in information sent to us in 2 Arlington, please be as specific with respect -- as 3 possible with respect to the impact on miner health 4 and safety, mining conditions, and feasibility of 5 implementation. 6 At this point, I want to reiterate the 7 specific requests for comment and information that we 8 included in the preamble to the ETS. Number one, in 9 the ETS, MSHA considered a performance based approach 10 to the strength requirements for seals. 11 However, as you know, MSHA includes 12 specific pounds per square inch numbers when 13 referring to the strength of seals in the ETS as the 14 Agency believes that this approach represents a more 15 appropriate approach. 16 MSHA is interested in receiving comments 17 on the Agency's approach to the strength requirement 18 for seals. MSHA is also interested in receiving 19 comments on the appropriateness of a three tiered 20 approach to seal strength in the ETS, and the 21 strategy in the ETS for addressing seal strength 22 greater than 120 psi. 23 Under the ETS requirement, new seals must 24 be constructed and designed to maintain -- to 25 withstand a 50 psi overpressure when the atmosphere 0008 1 in the sealed area is monitored and maintained inert. 2 A 120 psi overpressure if the atmosphere is not 3 monitored, and is not maintained inert, and an 4 overpressure greater than 120 psi if the atmosphere 5 is not monitored and is not maintained inert and 6 certain other specified conditions are met. 7 MSHA requests comments on the 8 appropriateness of the Agency's strategy for 9 addressing seal strength greater than 120 psi. If 10 commenters believe a different regulatory approach 11 should be developed in the final rule, MSHA would 12 like commenters to provide the details for such a 13 strategy, the rationale for such a strategy, and the 14 feasibility of using such a strategy. 15 MSHA seeks the views of the mining 16 community regarding whether there are other effective 17 alternatives to the requirements in the ETS with 18 respect to providing the most appropriate and 19 protective action for miners exposed to hazards of 20 existing sealed areas. 21 Most alternative seals constructed before 22 July, 2006 were constructed to withstand a static 23 horizontal pressure of 20 psi. MSHA considered 24 requiring mine operators to remove the existing seals 25 and replace them with seals that withstand at least 0009 1 50 psi. 2 MSHA also considered whether to require 3 mine operators to build new seals outby existing 4 seals, or structurally reinforce them. At this time, 5 MSHA believes that replacing existing seals is 6 impractical, and instances may create additional 7 safety hazards. 8 MSHA seeks comments on the feasibility of 9 including in the final rule a requirement that 10 existing seals be removed and replaced with higher 11 strength seals. MSHA also considered whether to 12 require mine operators to reinforce existing seals. 13 The Agency is concerned with the 14 feasibility of this option and whether such a 15 requirement could also expose miners to greater 16 hazards. MSHA however will continue to explore 17 technological advances addressing feasible and safe 18 methods to reinforce existing seals in underground 19 coal mines. 20 Commenters are encouraged to submit 21 information and supporting data regarding new 22 technologies to reinforce seal strength. MSHA 23 believes that the sampling strategy in the ETS will 24 yield results that reflect a reasonable 25 representation of the atmosphere in a sealed area. 0010 1 MSHA requests comments addressing the 2 sampling approach in the ETS. The Agency is 3 particularly interested in comments concerning 4 sampling, the sampling frequency, including sampling 5 only when a seal is outgassing. 6 MSHA requests comments on whether another 7 approach is more appropriate in the final rule, such 8 as when the seal is ingassing. MSHA also requests 9 comments, information, and experiences of the mining 10 community concerning sampling sealed areas. 11 In the ETS, mine operators must develop a 12 sampling protocol to be included in the ventilation 13 plan and submit it to the district manager for 14 approval. The ETS requires the mine operator to 15 implement the action plan specified in the sampling 16 protocol, or to withdraw all persons from the 17 affected area when specified concentrations are 18 encountered. 19 Action plans must provide protection to 20 miners equivalent to withdraw and address the hazards 21 presented, and actions taken when gas samples reach 22 levels specified in the ETS. 23 Historically, when methane levels reach 24 4.5 percent in active areas of mines, miners were 25 withdrawn from the areas that were dangerous due to 0011 1 high concentrations of methane. 2 MSHA requests comments on this approach 3 and whether it provides adequate protection for 4 miners. 5 Commenters are encouraged to submit 6 specific language, with supporting data for MSHA to 7 consider as the Agency develops the final rule. 8 MSHA is soliciting comments concerning 9 issues related to establish in a sampling baseline. 10 The ETS requires the mine operators specify 11 procedures in the protocol to establish a baseline 12 analysis of oxygen and methane concentrations at each 13 sampling point over a 14 day sampling period. 14 The baseline must be established after 15 the atmosphere in the sealed area is inert or the 16 trend reaches equilibrium. MSHA is particularly 17 interested in comments concerning the establishment 18 of this baseline. 19 The Agency also requests comments, 20 information and experiences with sampling of sealed 21 areas, including data, analytical information, 22 establishment of equilibrium, and trends. 23 MSHA is requesting comments on the 24 appropriateness of the ETS requirement regarding the 25 use of open flames or arcs associated with cutting 0012 1 and soldering activities within 150 feet of a seal 2 and the feasibility of this requirement. 3 The Agency suggests that commenters 4 provide specific rationale in support of that 5 position, and include alternatives, if applicable. 6 The ETS requires that each newly constructed seal 7 have at least two sampling pipes. 8 One sampling pipe must extend into the 9 sealed area approximately 15 feet. The second pipe 10 must extend into the middle of the intersection with 11 the first connecting crosscut. 12 The ETS affords flexibility to mine 13 operators for the placement of the sampling end to 14 allow a more accurate sampling strategy to better 15 protect miners. 16 Therefore, the ETS requires that the 17 location of sampling points be specified in the 18 protocol provided under the ETS. 19 And MSHA requests comments on this 20 provision, and the number and the location of 21 sampling pipes for the final rule. The ETS requires 22 that corrosion resistant water drainage system be 23 installed in the seal at the lowest elevation within 24 a set of seals, and that seals not impound water. 25 MSHA requests comments on this 0013 1 requirement for water drainage systems, including 2 effective alternatives for a final rule. The Agency 3 also requests comments on the appropriateness of the 4 ventilation plan content and whether additional 5 information should be included. 6 As you know, if you are familiar with the 7 ETS, the operator must include a number of 8 information items in the ventilation plan. When 9 submitting information, please include your 10 information that supports your position, and please 11 include data related to projected economic and 12 technological feasibility. 13 The ETS requires removal of insulated 14 cables from the area to be sealed, and removal of 15 metallic objects through or across seals. MSHA 16 believes that removal of insulated cables and 17 metallic objects through or across seals, if 18 feasible, and will not involve significant technical 19 or practical problems. 20 The Agency solicits comments on this 21 provision. MSHA is also requesting comment on the 22 scope and possible alternatives concerning site 23 preparation, examinations, training, and 24 notifications related to the construction and repair 25 of seals. 0014 1 The Agency has prepared a regulatory 2 economic analysis for the ETS. The regulatory 3 economic analysis contains supporting cost data. 4 MSHA requests comments on all of the estimates of 5 costs and benefits presented in the ETS and the 6 regulatory economic analysis. 7 To date, MSHA has received one comment, 8 and I believe that's still accurate, on the ETS. You 9 may view that comment and any other comments that the 10 Agency received on the Agency's website at 11 www.msha.gov, under the section entitled rules and 12 regulations. 13 MSHA has answered a number of compliance 14 questions from the mining public covering a range of 15 issues on the ETS. These questions and answers are 16 posted on the Agency's seal single source page. The 17 format of the public hearing, as many of you know who 18 have participated in these hearings in the past know 19 will be as follows: formal rules of evidence will not 20 apply, and this hearing will be conducted in an 21 informal manner. 22 Those of you who have notified MSHA in 23 advance of your intent to speak, or have signed up 24 today to speak, will make your presentations first. 25 After all scheduled speakers have 0015 1 finished, others can request to speak. 2 If you wish to present written statements 3 or information today, please clearly identify your 4 material. You may also submit comments following 5 this public hearing. To be considered, they must be 6 submitted to MSHA by August 17th, 2007, the close of 7 the comment period. 8 Comments may be submitted by any method 9 identified in the ETS. MSHA will post transcripts 10 from the public hearings on the Agency's website. 11 Each transcript should be posted there approximately 12 one week after the completion of the hearing. 13 We will now begin with persons who have 14 requested to speak. And please begin by clearly 15 stating your name and organization for the record to 16 make certain we have an accurate record. 17 And also, I would like to ask you to 18 spell your name, please, for the reporter, if you 19 would. Our first speaker is -- at this point we will 20 now start with our first speaker, and our first 21 speaker is Melissa Lee with the Appalachian Citizens 22 Law Center. 23 Miss Lee. 24 MS. LEE: Thank you all for allowing me to speak 25 today. I'm Melissa Lee, m-e-l-i-s-s-a, l-e-e. I am 0016 1 here with my attorney, Wes Addington, with the 2 Appalachian Center, and Tony Opegard. This was my 3 husband. 4 And I do stress, was my husband. Again, 5 I am Melissa Lee, one of five Kentucky Darby widows. 6 Ugly word, don't you think, widow. I'm a widow due 7 to the fact that the seals at Kentucky Darby, which 8 were built May of '06, were faulty and they were 9 constructed improperly. 10 But that is only half of the problem. 11 The major problem was the same seals were never 12 inspected or confirmed to have been built properly. 13 They weren't up to standard. The materials used were 14 not up to code. The sealant was slapped on the 15 seals. 16 It wasn't even applied properly. The 17 gentlemen say that they put on a rubber glove and 18 smeared the compound on to the seals. Smeared. With 19 that, clearly, MSHA did not approve the sealant. It 20 was proven that it was not one of the sealants that 21 was to be used. 22 Jimmy was a man who loved his job. He, 23 I've said before, loved the smell of coal. Sometimes 24 I would joke that I'm going to have to dab coal dust 25 behind my ears to keep him home on Saturdays instead 0017 1 of going into work. 2 And he would laugh and say that's the 3 only other woman that I have is the mine. Don't feel 4 inferior. Just be a little bit jealous of her. The 5 day that the state released the report to us, and 6 then the MSHA report, it was like I was a bird 7 sitting on my husband's shoulders. 8 I owned my own business in 2006. A new 9 business. I had been open almost a year. Two months 10 and it would have been a year that I had opened my 11 own business with Jimmy backing me 100 percent. 12 I kissed him goodbye on May 19th, 2006 13 with the hopes that the next morning at 4:00 a.m. we 14 were leaving to go away, away for a weekend that we 15 had not had alone in six years. The report read just 16 like I was sitting on his shoulder hearing 17 everything. 18 He was told by Amon Cotton Brock 19 (phonetic), the foreman, that there was a job that 20 needed to be done. In the MSHA and state report on 21 Mr. Brock's notepad that he carried in his pocket, it 22 said remove strap. 23 Jimmy was never a miner to leave his 24 foreman hanging. Jimmy, like I said, loved his job. 25 Little did my husband know that the job he was going 0018 1 to do would cost him his life, and his fellow co 2 -workers, which he considered not just his co-workers 3 but his brothers, Roy Middleton, Paris Thomas, Bill 4 Petra. 5 These gentlemen had worked together at 6 Manila pan mining. 7 They went to Kentucky Darby at different 8 times, but they were always, always together. Isn't 9 it the oddest thought that they would die together, 10 too. 11 During the explosion, my husband's head 12 was partially - 13 - he was partially decapitated. 14 The top part of his head was removed in 15 the explosion and he had a cylinder impale his chest. 16 Any coal miner sitting in this room, how would you 17 feel if this was the day you kissed your wife and 18 children goodbye. 19 You go to do a job, a job that is not 20 something that is just out of the ordinary. This was 21 a common job. Using a torch, to cut a metal strap, 22 was not uncommon. That was part of a miner's job. I 23 doubt there's a miner in this room who hasn't at one 24 time or another seen or used a torch to cut a piece 25 of metal underground. 0019 1 My husband's life was taken from us. My 2 husband became a father for the first time at the age 3 of 30. At the age of 30, he had become a father to 4 Seth Grayson. Eighteen months later he became a 5 father to Ross Braden. Ross was 21 months old when 6 his father died. 7 He just celebrated his third birthday on 8 the sixth of July. When he was 21 months old he 9 wasn't speaking. Jimmy never got to hear his son say 10 Daddy or Dada. He's three years old now. Seth looks 11 just like his father. 12 The older boys, Jimmy's stepsons that he 13 never referred to as stepsons, are 15 and 13. I'm a 14 widow, and I hate the word. So be it, this is what 15 happened at Kentucky Darby. It can't be swept under 16 the carpet. I refuse for it to be swept under the 17 carpet. 18 The problem with the seals was the lack 19 of inspection, and please, Ms. Silvey, if I'm 20 correct, if you have a brand new vehicle, and you're 21 driving it, and say for instance it's two years down 22 the road, and you get a card in the mail from GMAC 23 saying we're having a recall on your car, bring it 24 in, what do you do. 25 You take it in and have that faulty piece 0020 1 of equipment removed and a new one put in. Why 2 should we overlook the seals that have already been 3 built. 4 MS. SILVEY: Um-hum. 5 MS. LEE: Why should we overlook those and go 6 on. Okay, we're going to start inspecting the ones 7 that are installed now. That's wonderful. I have a 8 brother and two uncles and some cousins that are 9 miners. Wonderful. That's great. How about the 10 seals that were built in 2006 that have not had a 11 problem. 12 Should they not be removed and 13 reconstructed with MSHA approving their rebuilding. 14 This only is common-sense. This is not something 15 that is out of the ordinary done. We do it for our 16 vehicles. If you build a home, and you use a piece 17 of material that is not up to code, and they have a 18 recall on say, for instance, a piece of sheet rock 19 because of the material that it's made of, they will 20 contact all homeowners and say, you know, you have 21 purchased this in the past. 22 You need to redo your porch, your bedroom 23 wall, for the safety of your children, for the safety 24 of your family. Why not go back in to every seal 25 that has been built and inspect them, and if they're 0021 1 not to code, rebuild those, for the safety of all 2 these men. 3 I'm sure every one of you who are married 4 would like to go home to your wife every night, 5 wouldn't you? Do you all like to kiss your children? 6 My husband can no longer kiss his 7 children. Seth will be five in December. Not a day 8 goes by that he doesn't -- this is his picture. 9 I had to take this one from his bedroom. 10 He misses his father. He tells people, when he goes 11 to the playground -- when I take him out to the park 12 in the afternoon, he tells kids in the sandbox, my 13 daddy boomed up to heaven. That's what my four year 14 old's comments are. 15 The first thing he wants everyone to know 16 is his father boomed up to heaven. That he went to 17 work and God come and took him in a boom. No one 18 told my son about the explosion. That's his 19 explanation because he says God come and told him 20 that. 21 The boom was the cause of faulty sealant, 22 bad craftsmanship, and the fact being that no one 23 inspected those seals when they were built. No one 24 is being held at fault for those seals, but we are 25 the ones left grieving. 0022 1 We're the ones that are left behind 2 without husbands, with kids that don't have daddies. 3 These three little girls behind me, and my four sons, 4 miss their daddy. If you look right here at Natalie, 5 this is looking at Roy Middleton. 6 This child -- my husband would say 7 there's little Roy and Natalie would go errrrrr. She 8 would growl. This is what her -- this is -- if you 9 look at her, this is what her daddy looks like. Mary 10 has to look at this child every day and remember Roy. 11 Danielle, her father was proud of her. 12 He bragged about her. He was all the time -- the men 13 would get together and discuss their children and 14 their accomplishments. My 15 year old runs cross 15 country. 16 Jimmy went without work tires on his work 17 car to make sure Hayden had his shoes to run here in 18 Lexington during state. 19 My son doesn't have that anymore. He 20 never was a stepfather. He was a Daddy, and I no 21 longer have my husband. I never have to worry about 22 ever dabbing coal dust on the back of my ears anymore 23 to entice him because he's not with me anymore. 24 He was a wonderful, wonderful man, and I 25 miss him dearly. But I ask you all to take that into 0023 1 consideration. These seals could have -- if they had 2 been inspected like they should have been, maybe they 3 would have found the fault then and my husband, Roy 4 Middleton, Paris Thomas, Bill Petra, Cotton Brock, 5 they never would have died. 6 MS. SILVEY: Thank you, Ms. Lee. 7 MS. LEE: Thank you. 8 MS. SILVEY: I would just like to say before you 9 leave, Ms. Lee, on behalf of my panel here, and I 10 know I express the feelings for them that, again, we 11 give our sympathies and our condolences to you and 12 your family and your children for your husband. 13 And I know there's no way we can say 14 exactly that we know what you're going through, but I 15 want you to know a little bit that we do. 16 MS. LEE: Again, Ms. Silvey, I would just like 17 to -- this is not for Jimmy any longer. This is for 18 my brother Bobby, my Uncle John, the ones that are 19 left mining. Nothing brings Jimmy back, nothing. 20 But you all can save other miners. 21 MS. SILVEY: Thank you. Next, we have Mary 22 Middleton, Appalachian Citizens Law Center. 23 MS. MIDDLETON: My name is Mary Middleton, m- 24 a-r-y, m-i-d-d-l-e-t-o-n. I am the 32 25 year old widow of Roy Middleton that was killed by 0024 1 carbon monoxide poisoning at Kentucky Darby May 20th 2 of 2006. We were married for 13 years and we had two 3 daughters. 4 My oldest daughter, Danielle Middleton, 5 age 18, Natalie -- I mean 14, and my youngest, age 6 eight. 7 My husband, he worked in the mines for 8 practically half of his life, which was 18 years 9 because he was just 35 years of age when he was 10 killed. 11 And he had been employed with Kentucky 12 Darby for three years. He had worked for Ralph 13 Napier at previous mines, but for three years at 14 Kentucky Darby. 15 He was a repairman/electrician is what he 16 held as his job duties, the last of his job, it was a 17 repairman and electrician. 18 And I would just like to talk to you all 19 today about these seals. I feel like if the seals 20 had been built stronger at Kentucky Darby, that my 21 husband would probably still be alive today because 22 the carbon monoxide wouldn't have got through them 23 and that's what killed him. 24 My husband, he was a devoted Christian 25 and a Deacon at the Church of God. He was just the 0025 1 greatest guy ever and the best father. He really 2 didn't like coal mining, but it was just a way of 3 living in Harlan because we had children, and that's 4 about the only source of work that you could work at 5 to make a decent living. 6 And I feel like if the seals had been 7 built properly at Kentucky Darby, even at a 20 psi 8 standard, they may have withstood the explosion, or 9 at least lessened the impact of the explosion, and 10 perhaps the overcast -- the overcast had fallen in 11 the roadway and that's why my husband could not 12 escape, him and two other miners. 13 And I agree that the company should have 14 to make sure that all equipment is removed from the 15 area to be sealed, just sealed off, not to leave 16 anything, any old equipment, anything back behind 17 there. And I also think it's important to remove any 18 metal straps that extend from the working part of the 19 mine into the sealed areas because that was a problem 20 at Kentucky Darby. 21 And I'm asking you today to please do not 22 weaken these rules so that the coal -- I have these 23 two pictures here of the -- money can't buy this. I 24 had this family, but money -- by spending money, you 25 can prevent another wife or child from having to go 0026 1 visit -- we go visit our husband and father now. 2 I don't want another family to have to be 3 experiencing what me and my daughters are going 4 through right now. Thank you. 5 MS. SILVEY: Thank you, Ms. Middleton. And 6 again, on behalf of our panel here, I would like to 7 express our sympathies to you and your daughters and, 8 you know, we are so very sorry. And that's -- with 9 you, that's one of the reasons we issued this ETS, 10 but we do express our sympathy. Thank you. Next, we 11 have Ms. Priscilla Petra. 12 MS. PETRA: Petra. 13 MS. SILVEY: Right, Petra. 14 MS. PETRA: My name is Priscilla Petra, p-r- 15 i-s-c-i-l-l-a, p-e-t-r-a, and I am the 16 widow of George W. Petra. Most people know him as 17 Bill. His family called him Billy. We've been 18 married for 16 years. We have two children, William 19 Daniel, Little Bill, and Ashley who's 12. She's with 20 me. 21 Bill was working the mines for I guess 22 more than 25 years, and he spent a lot of time at 23 Kentucky Darby. He was 49 when he died and his death 24 I truly believe was because of carbon monoxide from 25 the seals. 0027 1 As Melissa has clearly explained, they 2 weren't built properly, and I don't want him to be 3 just a statistic or a name on a list of dead miners. 4 I want his death to make a difference for the miners 5 who are still working to provide for their families. 6 So the reason that I'm here today is to 7 support the rule for stronger seals. Had the seals 8 at Kentucky Darby been built properly, my husband 9 Bill and the other miners I believe could have made 10 it out because the seals could have held. 11 Instead, the seals were so -- the seals 12 were so poorly constructed that I believe that it 13 wouldn't have withstood about 4 psi. And that's 14 pretty pitiful. 15 I know that there's already been some 16 opposition to the rule. 17 I know that there has been men who have 18 argued that the rule is too stringent, that it will 19 cost the coal companies too much money, that MSHA 20 should give full control to professional engineers to 21 build the seals, but hasn't the coal companies and 22 these engineers already had control for years. 23 And look at just in the past year, 17 men 24 have died because of improper built seals. Coal 25 operators, since mining began in this country, have 0028 1 been entrusted with the lives of thousands of men, 2 and they've repeatedly violated safety rules and 3 ignored MSHA's warnings and have lived above the law. 4 They are in a class of their own. They 5 think that they live above the law. If I'm out there 6 driving a car and I cause an accident, and somebody 7 dies, I have to pay that price. I mean I'm going to 8 be liable. 9 Are coal operators liable? 10 It seems like they can get away with 11 murder. 12 And yet, they are above the law. They 13 can't be prosecuted for criminal charges when they 14 are at fault for the deaths of these men. How many 15 more wrongful deaths are going to have to take place 16 before these rules are truly, truly enforced. 17 I think operators have proven that they 18 can't be on that honor system. They've got to have 19 someone standing over them making sure that they do 20 their job to provide a safe working place. You know, 21 men have a choice. 22 They don't have to work in the mines. 23 You know, I've heard people say, well, you know, your 24 husband didn't have to go in that mine. Well, no he 25 didn't, but then you look at our area in Harlan and 0029 1 what else is there to provide for your family. 2 I think the coal industry makes millions 3 of dollars on the backs of coal miners, and money can 4 make the mines a safer place. It's not the problem. 5 The problem is they don't care. They don't want to 6 take the time to build these things correctly. 7 I guess if they slow down production, 8 that means less money for them, but yet I have -- 9 even if they slow down on production and they bring 10 in less money, I still haven't seen a coal operator 11 in a food stamp line or -- I've seen coal operators 12 with million dollar homes. 13 I mean they're making that money. They 14 can make these mines safer and I'm just -- they knew 15 to make sure that they do their job right. So don't 16 back down. MSHA has finally began to recognize that 17 the system has failed miners. 18 The rule for stronger seals is very 19 important. Every time that men goes in the mine with 20 the seals that are not properly built, it's like 21 playing Russian roulette. Well, maybe tonight it 22 won't explode. Maybe tomorrow night we go in we 23 won't come home. 24 Please don't allow political pressure, 25 and pressure from the coal industry, to cause you to 0030 1 water down the rule or to change it. Make operators 2 liable for their actions. Every other citizen and 3 worker in this country has to abide by the law. 4 Coal operators and the coal industry 5 should not be exempted. My children don't have their 6 father. 7 Had Ralph Napier and his foremen, had 8 they trained those men properly, had they done what 9 was right, he would be home today. 10 And when my daughter has her first prom, 11 he would see her there in her prom dress. When Bill 12 or Ashley get married, he would be there. Now, who's 13 going to walk her down the aisle. 14 You know, he's not going to see his first 15 grand baby, and I just really beg you to please keep 16 the rule as it is and make sure it's enforced. Thank 17 you. 18 MS. SILVEY: Thank you, Ms. Petra, and we want 19 to express our sympathies to you and to your family 20 also. We understand. Thank you. Next we have Scott 21 Howard, Appalachian Citizens Law Center. 22 At this point we are going to -- at this 23 point then, for the audience, we are going to view a 24 video, and so that's the next in the presentation 25 from the Appalachian Citizens Law Center. So if you 0031 1 would just let us take a minute, please. 2 (Whereupon the video was viewed.) 3 MS. SILVEY: Thank you Mr. Howard. Maybe I'll 4 ask Mr. Opegard a few questions. He probably would 5 prefer that instead of you. 6 Just after continuation of the video, and 7 in terms of my responsibility here, Mr. Opegard, 8 representing MSHA, if we could get the name of the 9 mine, for the record, and when was the video taken, 10 and are these seals still in existence. And if you 11 could -- 12 MR. HOWARD: It's on the video. When you watch 13 the video you got, the sound on it, it will tell you 14 the date that the video was taken, the mine, the 15 company, the session. I narrated it on -- 16 MS. SILVEY: Oh, that's on the video? 17 MR. HOWARD: Yeah, if you listen to the sound, 18 it's on there. 19 MS. SILVEY: That's fine. 20 MR. OPEGARD: It was taken on April 20th, but we 21 would ask if you -- 22 MS. SILVEY: April 20th of this year? 23 MR. OPEGARD: Yes. We would ask that if you -- 24 Mr. Baughman had told me on the phone that you might 25 put it on the Web, on your website. We would ask if 0032 1 you do that that the narration not be included, that 2 it be muted. 3 MS. SILVEY: Okay. We have not decided that 4 issue. 5 MR. OPEGARD: Okay. 6 MS. SILVEY: Okay. All right. Okay, well, 7 again, thank you, Mr. Howard. And as Mr. Howard 8 said, we will all know that that information is on 9 the -- 10 it's on the video so that everybody -- so 11 we will look at that information and we will take the 12 actions that we -- that the Agency, from an Agency 13 standpoint, that we have to, with respect to that 14 mine and those seals. 15 Is there anything else you want to say 16 about that? 17 MR. SHERER: We will put it in the record and it 18 will be available. 19 MS. SILVEY: Yeah, we will put it in the record, 20 too, yeah. 21 MR. OPEGARD: Mr. Howard wanted to make it clear 22 that he was presenting the video to MSHA as evidence. 23 So, you know, as his lawyer, we would certainly 24 consider that protected activity under the Mine Act 25 for Section 105 (c). 0033 1 MS. SILVEY: Okay. 2 MR. OPEGARD: We want to make that clear. 3 MS. SILVEY: Okay. 4 MR. OPEGARD: We don't expect any retaliation 5 against him for coming forward to this public 6 service, what he's doing. 7 MS. SILVEY: Okay. That's duly noted. Thank 8 you. Before I -- before I proceed with the next 9 witness, Mr. Addington, we had another person who 10 helped tremendously on this rule, and I missed -- you 11 know, you know when you're calling people's names, 12 inadvertently you miss somebody, and he's our field 13 representative, Dennis Swintosky (phonetic). Dennis, 14 are you here? 15 MR. SWINTOSKY: Yeah. 16 MS. SILVEY: Where is Dennis? And he's probably 17 just not -- 18 MR. SWINTOSKY: I'm glad you missed me. 19 MS. SILVEY: No, he's just giving me a break. 20 Trust me. He's just smiling, always 21 smiling and so I'm sorry. I apologize for missing 22 Dennis. Okay, next we will have Mr. Wes Addington 23 with the Appalachian Citizens Law Center. 24 MR. ADDINGTON: Ms. Silvey, members of the 25 panel, and those within the Agency that are present 0034 1 in the room. My name is Wes Addington, a-d-d-i-n-g 2 -t-o-n. 3 I'm an attorney and I'm testifying on 4 behalf of the Appalachian Citizen Law Center. It's a 5 mine safety project. 6 The Law Center is a nonprofit law office 7 in Prestonsburg, Kentucky. We abdicate for 8 additional protections for coal miners. We represent 9 miners that have been discriminated against for 10 making complaints about safety and conditions in the 11 mines. 12 We also represent miners and widows in 13 black lung benefits claims. Seal strength 14 construction and monitoring is an area of grave 15 danger in the nation's mines. I applaud MSHA's 16 emergency temporary standard on mine seals and 17 commend this panel and the rest of the Agency for the 18 work they've completed, and for their continued work 19 towards a final rule. 20 I urge MSHA to retain the current 21 protections for miners in the ETS, not to weaken the 22 rule in any way, and actually to increase protections 23 for miners in a few areas that I will discuss. 24 Turning to 75.335, seal requirements, 335 25 (a), seal strength, I applaud the new requirements 0035 1 for seal strength and monitoring of new seals. 2 Unfortunately, the disasters at Sago and 3 Darby illustrated that the former requirements for 4 seal construction and monitoring were completely 5 inadequate to protect miners in this country. 6 Requiring that all seals designed to 7 withstand less than 120 psi to be monitored and 8 continuously maintained inert is a major step to 9 protect America's miners. More than doubling the psi 10 requirement of all new seals and requiring monitoring 11 in an inert atmosphere behind all existing seals 12 designed to withstand under 120 psi is commendable. 13 However, I would question the ETS's 14 failure to require at least a 50 psi standard for 15 existing seals constructed before May 22nd. I don't 16 understand how MSHA can do such a good job of 17 providing solutions to this admitted grave danger 18 looking forward, yet completely fails to address the 19 grave dangers that is currently lurking for 30,000 20 miners in 372 of the nation's mines. 21 The ETS raises a number of solutions for 22 existing seals, such as replacement, reinforcement, 23 or building new seals outby existing seals. But the 24 Agency discounts each approach because they may not 25 provide optimal results in some cases. 0036 1 Just because you don't have a one-size 2 -fits-all solution for existing seals doesn't mean the 3 correct approach is to effectively do nothing about 4 this grave danger. The final rule must provide a 5 solution, if not multiple solutions, to bring all 6 existing seals up to the 50 psi standard. 7 Turning to 335 (b), sampling and 8 monitoring requirements, I commend the new sampling 9 and monitoring requirements, including requiring a 10 certified person to do the monitoring and requiring 11 that they be retrained annually. 12 It's correct to continue to define inert 13 as less than three percent methane or more than 20 14 percent methane. However, I would like to see more 15 explanation in the final rule as to what "not all 16 close to explosive range" means, in cases where the 17 district manager can approve a less frequent sampling 18 strategy. 19 I would like a further explanation of 20 what does "far less or far greater" mean as it's 21 listed currently in the comments. It's a good idea 22 to have monitoring protocol approved as part of the 23 ventilation plan. 24 This builds in a layer of accountability, 25 not only for the mine operator but also for the 0037 1 Agency. 2 MSHA did a good job throughout the ETS of 3 creating accountability across the board for the 4 design, construction and monitoring of seals. 5 However, I do have a problem with 335 (b) 6 (4) regarding the action plan that must be approved 7 by MSHA. The plan goes into effect when the 8 atmosphere behind the seal is in the explosive range 9 for two hours, if I'm reading the rule correctly. 10 The ETS says that the action plan must 11 provide protection to miners equivalent to 12 withdrawal. 13 I'm not sure how that even theoretically 14 is possible because if you created a situation where 15 the atmosphere behind a seal is in the explosive 16 range, dictating that this action plan go into 17 affect, well, obviously there's some concern there, 18 and I don't understand how anything could be 19 equivalent to withdrawal, I mean unless there is some 20 noted danger outside the mine. 21 So I would recommend withdrawal when the 22 atmosphere is explosive behind a seal. The record 23 -keeping requirements regarding hazardous conditions 24 in 335 (b) (6) are necessary and should already be 25 standard practice in a safe mine. 0038 1 335 (c), prohibition of the use of open 2 flames or arc within 150 feet of a seal is protection 3 that may prevent a repeat of a Darby. Turning to 4 336, seal design, I commend the Agency for requiring 5 the seal design applications and installation 6 procedures be approved prior to construction. 7 Professional engineers should certify the 8 seal design application and should oversee 9 installation and should certify that the installation 10 complies with the site specific seal design. This 11 also adds a layer of accountability for the safety 12 and confidence for miners and mine operators that 13 they desperately need. 14 Turning to 337, seal construction and 15 repair, I applaud the removal of all metallic objects 16 behind or through seals. Darby also showed that this 17 should be done. I applaud the requirement of a 18 certified person, persons present before, during and 19 after seal installation as noted in 337 (b). 20 Also the countersigning requirement by 21 mine management builds in accountability and provides 22 a standard for mine management to stay involved 23 during seal construction. 335 (c) is a good 24 requirement. 25 Mine management should already want to 0039 1 know whether the seal was installed as designed. 2 Certification of this fact is no burden 3 whatsoever. 337 (b), notification requirements are 4 necessary so MSHA can properly oversee seal 5 construction. 6 I do recommend amending a few of the 7 record-keeping requirements, however, and 8 specifically looking at the graph on Page 811, and 9 looking at 337 (e), training, and in the comments, 10 MSHA notes that failure of a seal may result in 11 significant injury, loss of life and/or significant 12 economic loss. 13 Based on recent explosion investigations, 14 MSHA learned that numerous persons involved in 15 constructing seals that failed were not adequately 16 trained. And then you go on to list the new record 17 -keeping requirements for training. 18 However, unlike other record-keeping 19 requirements in the ETS, the certification of 20 training for miners doing the construction of these 21 seals is only one year. Well, if we have a seal 22 failure outside of that time period, those records 23 are no longer available during the investigation 24 process that MSHA noted that was so important in 25 finding out what led to the failure. 0040 1 And I sort of have the same problem also 2 with 337 (b) (5), and that's the record-keeping of 3 examinations. And the way I read that, those would 4 be examinations that were conducted during the 5 construction of the seal. 6 So you would sort of have the same 7 problem. 8 I think both 337 (b) (5) and 337 (e) 9 should be just like other provisions in the ETS, and 10 those should be kept for as long as the seal is used 11 for the design that it was built. 12 And that concludes my comments on the 13 ETS, and I just want to reiterate my support of the 14 ETS and my appreciation for the work that MSHA has 15 done in this regard and in an area of grave danger. 16 Thank you. 17 MS. SILVEY: Thank you, Mr. Addington. I just 18 have one comment, Mr. Addington, before we get to Mr. 19 Opegard, and that is with respect to the existing 20 seals, and I want to clarify to everybody here also. 21 And maybe it didn't come through quite as 22 clearly as we intended it in the ETS, that with 23 respect to existing seals, the Agency -- the 24 requirement was that they be immediately sampled and 25 monitored on the effective date of the ETS. 0041 1 And so the Agency requires that the 2 operators immediately inspect and sample existing 3 seals, and also the Agency will be continuing its 4 inspection of existing seals. Also, if with respect 5 to existing seals, while you're right, the ETS -- and 6 I mentioned that in my opening statement, did not 7 require wholesale removal and repair of existing 8 seals. 9 But if when -- upon inspection of 10 existing seals, that hazardous conditions were found, 11 are found in terms of high gas levels, then the -- as 12 with even the new seals, the ETS still requires that 13 corrective actions be taken and that those seals 14 either have to be inert or if they can't be, then new 15 seals have to be constructed as we said, and maybe 16 you said that, too, have to be constructed outby that 17 seal. 18 Now, obviously it doesn't mean that -- 19 you all understand what I'm talking about. It has a 20 round perimeter of a seal outby so the standard is 21 constructed in that manner. So just so everybody 22 understands. Some corrective action with respect to 23 existing seals. 24 MR. ADDINGTON: And if I may briefly just 25 respond. I do applaud MSHA's work in the area of 0042 1 monitoring all seals. I still would like to 2 reiterate, though, I feel as though that there is a 3 grave danger here. 4 MSHA has recognized that, thus we have an 5 emergency temporary standard, which is a rare 6 occurrence. And I feel that existing seals, the 7 strength of those seals, should be addressed and then 8 brought up to the same standard in which new seal 9 construction is required. Thank you. 10 MS. SILVEY: Okay. Thank you, Mr. Addington. 11 Now, next we will hear from Tony Opegard. 12 Mr. Opegard. 13 MR. OPEGARD: My name is Tony Opegard. I'm 14 testifying on behalf of the Appalachian Citizens Law 15 Center of Prestonsburg, Kentucky, the same law office 16 that Wes works for, but I'm also in private practice 17 and I'm the attorney for Melissa Lee, Priscilla 18 Petra, Mary Middleton and Childa (phonetic) Thomas 19 who couldn't be here today, all of whom lost their 20 husbands in the Kentucky Darby explosion and it's 21 aftermath. 22 And I'm also the attorney for Paul 23 Ledford who is the sole survivor of the Kentucky 24 Darby disaster. Mr. Ledford was going to testify 25 today and he could not be here either. 0043 1 I also applaud MSHA for this rule, and 2 I'll say specifically Mr. Stickler, too, for getting 3 this rule out before it was mandated by Congress and 4 getting it out in time to help save miners' lives. 5 And I know most of you on the panel, and 6 I know you're all good people, and you all care about 7 miners. I know Clete was on the panel in Morgantown, 8 and John Urosek and Clete Stephan, and in my 9 experience, nobody cares more about miners and mine 10 safety than they do. 11 So I know you're all going to try to do 12 the right thing. Having represented these five 13 Kentucky Darby families since the disaster, I've seen 14 some of what they have had to endure as a family. 15 They're some of the most humble, finest people I've 16 ever met. 17 You know, it's difficult to watch 18 families grieve and suffer because of the loss of 19 their husbands, their fathers and their brothers. We 20 asked them to travel long distances today to testify 21 so that MSHA can see the pain and agony that weak 22 mining regulations could cause, and we wanted to put 23 a human face on this tragedy. 24 As Priscilla said, she doesn't want Bill 25 just to be a name on a list of miners who have died, 0044 1 and we don't want any of these miners just to be a 2 number or a name. There's human consequences for 3 these failures and they're far reaching. 4 What you don't see today, although 5 Melissa talked about them, is some of the smaller 6 children, like Ross who is three and Seth who is 7 four, who will never see their dads again. And I 8 know we can all relate to that, just as the older 9 children who are here will never see their fathers 10 again. 11 I'm also the attorney for Scott Howard 12 who showed the video, and I just want to state on the 13 record that Scott is one of the bravest coal miners 14 I've ever met. And I hope you understand, and I hope 15 you all appreciate the guts it takes for an Eastern 16 Kentucky coal miner, working in a non UMWA mine, to 17 testify on behalf of his fellow miners and how rare 18 that is. 19 I really do feel that MSHA should be 20 holding these hearings in the coal fields. I don't 21 consider Lexington the coal fields. I think you 22 should be in Hazard or Harlan, places where miners -- 23 it's more accessible to miners, but having said that, 24 the reality is that nonunion miners aren't going to 25 come to these hearings and testify because they're 0045 1 afraid of retaliation. 2 They appreciate it when the widows speak 3 out. The widows have had a lot of miners talk to 4 them about how much they appreciate what they are 5 saying, because they, the miners, cannot say it 6 themselves. In going back to Scott, you know, how 7 many of you or any of us in this room have ever 8 risked our job and our livelihood to help our fellow 9 employees. 10 And that's exactly what Scott's doing by 11 being here today. During my career as an attorney 12 I've represented about 130 miners in 105 (c) cases, 13 and most of these are miners who were fired, almost 14 all of them from Eastern Kentucky for complaining 15 about unsafe conditions. 16 And that's a fact of life. You know, if 17 you complain about unsafe conditions in a nonunion 18 mine in Eastern Kentucky, chances are you're going to 19 be fired. 20 You're going to be labeled a troublemaker 21 and I want to commend Scott for coming before you 22 because it was a great act of courage. 23 And it's probably unprecedented in any 24 hearing that MSHA has ever had to have a miner come 25 in and show a video of actual conditions in his mine. 0046 1 In the 2007 session of the Kentucky General Assembly, 2 I helped to write and lobby for a stronger state mine 3 safety law. 4 That bill, which was introduced by 5 Representative Brent Yantz (phonetic), and eventually 6 passed the House and the Senate and became law in 7 Kentucky, contained about a dozen provisions that 8 exceed the requirements of the federal mine safety 9 law. 10 The bill encountered fierce opposition 11 from the Kentucky coal industry, and which provision 12 of that proposed state mine safety bill do you think 13 generated the most intense opposition from the 14 industry. 15 Well, it was a provision that would have 16 required coal mine operators to certify that the 17 seals in their mines were built according to the 18 specifications submitted to MSHA in the mine seal 19 construction plan. That was the biggest topic of 20 disagreement. 21 That generated the most heat from the 22 industry. And why is that? It's because operators 23 don't want to be held accountable. They do not want 24 to be held accountable for building seals correctly. 25 When we first wrote the provision in the state law, 0047 1 it was very similar to what MSHA has now. 2 We would have required that a certified, 3 a professional engineer, certify that the seal was 4 built according to the specifications. Through 5 negotiation, debate, that was weakened to where it 6 was no longer a professional engineer. 7 It was the mine superintendent, or the 8 mine manager had to certify. We could live with 9 that. 10 Industry couldn't live with that. They 11 got it weakened further. The next draft of the bill, 12 which was now the third draft, said that a senior 13 mine official, not designating a mine superintendent 14 or the mine manager, just a senior mine official, had 15 to certify that the seal was built according to the 16 specifications. 17 Then it was weakened even further. We're 18 getting -- the bill has already passed the House. 19 We're getting near a vote in the Kentucky 20 Senate, which is going to determine whether our bill 21 goes through or not. 22 The fourth version of the bill said, "to 23 the best of their knowledge and belief, a senior mine 24 official must certify that the seal was built 25 properly." So at this point, it's basically 0048 1 worthless, if all you have to do is say, well, to the 2 best of my knowledge and belief, it was built the way 3 it was supposed to be. 4 That's the honor system that my clients 5 have spoken about. The honor system that's been in 6 place for decades, and it's worthless. It doesn't 7 work. You can't just say, well, here's 8 specifications. Build it this way, then never check 9 and see whether it has been built that way. 10 And the fact that is -- as Mr. Stickler 11 has acknowledged, I think, and we met with him in 12 April, he said in the previous three months, MSHA had 13 found over 500 seals in the United States that were 14 not built according to their specifications. That's 15 a major problem. 16 On the eve of the vote in the Kentucky 17 legislature, our provision requiring certification of 18 mine seals was dropped completely. We were told by 19 the committee chairman that it was dropped because of 20 frantic calls from the coal industry up until 11:00 21 o'clock the night before the vote, from lobbyists to 22 the Republican leader of the Kentucky Senate saying 23 we can't live with this provision. And in fact, it 24 was dropped. 25 The bill went ahead and it was approved 0049 1 without that provision. Steve Role of United Mine 2 Workers is a tireless lobbyist for mine safety. He 3 and I were helping to lobby for this bill, and he and 4 I and Wes Addington were told by the chairman of the 5 committee in the Senate, that we had to sit down with 6 lobbyists from the coal industry to discuss our 7 differences. 8 That they objected to the many provisions 9 in the bill. So we want you to sit down and see if 10 you can reach any compromises so we can get this bill 11 passed. And we did that. We sat down with the major 12 lobbyist for the coal industry in Kentucky, a 13 prominent coal attorney as well, to discuss any 14 compromises we might could make on the bill. 15 And the industry made it very clear to us 16 that they would not accept any type of accountability 17 when it came to the building of seals. Some of the 18 questions they asked us were do you actually expect 19 us to have a person watch the seals being built to 20 make sure that they are being built correctly. 21 Now, is that a major imposition to have 22 somebody make sure the seals are being built the way 23 that you told MSHA they're going to be built. I 24 don't think so. Not when you consider that it's 25 miners' lives that are at risk if they are not built 0050 1 properly. 2 They complained that they could never get 3 engineers to go underground to certify these. It 4 would be too expensive. Engineers don't want to go 5 underground. Well, engineers are underground all the 6 time. Companies, a lot of them have engineers within 7 their safety departments and other companies hire 8 them out. That's not a big problem either. 9 Although the industry knew that 17 miners 10 had just been killed because seals were blown out in 11 Kentucky and West Virginia, and that the lives of 12 thousands of Kentucky coal miners depend on seals 13 being built properly, the industry's lobbyists' only 14 concerns were cost and accountability. 15 They don't want to be held accountable, 16 period. And we feel that this rule will hold the 17 industry accountable. If a single one of those 18 wealthy coal lobbyists, or the rich industry 19 attorneys who complain that these rules are too 20 burdensome, had a spouse or a son or a parent working 21 in the mines in Eastern Kentucky, we would hear a 22 completely different tune from them. 23 My clients are the people who suffer when 24 production is valued more than human life. Coal 25 miners are the people who suffer. The lobbyists 0051 1 don't. 2 According to MSHA's Federal Register 3 Notice, there are almost 31,000 miners working 4 underground today in the United States in mines that 5 contain seals. 6 That's approximately three-quarters of 7 all the underground miners in the United States, and 8 every one of these miners potentially could be 9 affected by a faulty or inadequate seal. So the 10 families of these 31,000 miners, all of whom are 11 potential widows and orphans, just like my clients, 12 are depending on you to keep this rule strong. 13 So I'm asking you not to let them down by 14 weakening this rule. You don't want to have another 15 hearing six months from now, or a year from now, and 16 have other widows and children without fathers coming 17 before you. Don't bend under the pressure that the 18 coal industry is going to try to exert on you. 19 And I've seen that there's at least 30 20 some people signed up to testify after us today, and 21 I'm sure most of them are going to oppose this rule, 22 and you're going to have a lot of opposition. Hank 23 Moore, an industry attorney, was quoted in the paper 24 as saying on Tuesday at the hearing in Morgantown 25 that the Sago explosion was an aberration. 0052 1 One can argue that point, but regardless, 2 Kentucky Darby was not an aberration. If there had 3 been properly built 50 psi seals at the Kentucky 4 Darby mine on May 20, 2006, five miners would be 5 alive today. 6 And we mustn't forget Paul Ledford, the 7 survivor of that disaster, who is suffering mentally 8 and physically because of the disaster. Although he 9 lived, he wouldn't be suffering today either had we 10 had 50 psi seals. 11 And what Priscilla said was accurate. We 12 were told by MSHA that those seals at Darby were so 13 poorly built that they probably would not have 14 withstood a four psi explosion, or that was the 15 maximum they would have, even though the standard was 16 20 psi. 17 Seventeen West Virginia and Kentucky 18 miners died last year because of inadequate and 19 improperly built seals. How many dead miners does it 20 take to insist on a rule that's actually going to 21 protect miners. 22 There is no reason why one more miner 23 should die because of inadequately constructed seals. 24 You have the power to help prevent another such 25 tragedy. 0053 1 You have to make coal operators 2 accountable for protecting the safety of their 3 employees, which is exactly what we believe this rule 4 will do. 5 And I don't want to reiterate what Wes 6 said. 7 I just have a few comments about the 8 specific provisions in the rule, and although my 9 clients are very supportive of the rule, let me 10 discuss briefly the one part of the rule that they're 11 not supportive of. 12 And as you might guess, this is the part 13 about the existing seals. MSHA issued the ETS 14 because of the quote, unquote, grave dangers to which 15 miners are exposed because the seals are not 16 explosion proof. 17 And as you know, the Coal Act, as far 18 back as '69, required explosion proof seals. 19 MSHA has admitted that the Agency erred 20 in 1992 when it determined the 20 psi seals were 21 explosion proof. There's 31,000 miners working in 22 mines today that have portions of the mine sealed and 23 everyone of these miners is at risk. 24 Therefore we believe that the final rule 25 should include the requirement that all existing 0054 1 seals be replaced with the higher strength seal. If 2 it's not feasible to replace a particular seal, and I 3 understand it may not be in every case, then we 4 believe that operators should be required to 5 reinforce existing seals to meet the higher standard. 6 What Wes was saying about the one size 7 fit all, I know you all have heard Abbott McAteer his 8 phrase that the perfect is the enemy of the good. 9 And you know, the industry uses that all the time. 10 Well, we don't have a perfect mine refuge chamber. 11 Therefore we can't use any in any mines 12 or, you know, there's some seals that won't fit so 13 therefore we shouldn't do anything. Do what's best. 14 You know, make those seals stronger, and 15 if you have a problem, then we'll deal with it and 16 find a way to do the best that you can. 17 I know that existing seals right now have 18 to be monitored, but I want to try to be realistic 19 about monitoring and compare it to pre-shift exams. 20 And if you're in a small nonunion mine, 21 realistically, honestly, pre-shift exams aren't done 22 in a lot of them. 23 There's something in one of the internal 24 reviews recently that said -- noted that pre-shift 25 exams clearly weren't being done because -- I forget 0055 1 what percentage it was. Like 80 or 90 percent of the 2 measurements noted in the exam book were exactly the 3 same for a year period. 4 I mean, you know, someone was just 5 writing down a air measurement, calling it outside or 6 whatever. 7 They weren't doing the exams. And 8 realistically, a lot of small operators, are not 9 going to -- they're not going to take the time and 10 trouble to monitor behind these seals. 11 And I really think that MSHA is fooling 12 itself if you think that they are. If you think that 13 monitoring behind seals is going to be done correctly 14 and accurately by the majority of operators, I think 15 you're fooling yourself. 16 The seals at Kentucky Darby were not 17 checked properly. We had testimony during the 18 interviews that two miners traveled together. One 19 miner did a test, told the other what he found and he 20 wrote it in the book and certified it, even though he 21 had no idea whether that information was accurate or 22 not. 23 One foreman could have found four percent 24 methane leaking out of that seal, said I found .1. 25 The other guy marks down .1 and certifies it. And 0056 1 that's if they're being done at all. We found at 2 Kentucky Darby that there was no on shift 3 examinations done for 11 months, on the second shift, 4 on the outby areas, and MSHA missed that, 5 unfortunately. 6 But ordinarily, if no on shift exams are 7 being done, they would just mark them in the book 8 that they were done and sign them. Why they didn't 9 in that case, who knows. But the point I'm trying to 10 make is don't rely on monitoring. 11 Make the companies build stronger seals. 12 If I was a miner, I would feel a whole lot better 13 knowing that I had a 50 psi seal than a 20 psi seal 14 that is supposedly being monitored. Scott's video 15 shows you the conditions of those seals. 16 I mean would you want to be working in 17 that mine? If you didn't have a way out, if those 18 seals collapsed, would you want to be in there? I 19 wouldn't. 20 You're not supposed to have water pouring 21 out of the seals. 22 Out of the water trap, yeah, but not out 23 of the other parts of the seals. In 75336, the 24 certification by a professional mine engineer, this 25 is a critical part of the rule, and I hope you don't 0057 1 back off of that. 2 Don't weaken that to be a senior mine 3 official, or to the best of the knowledge or belief 4 of somebody. Make an engineer do it, and then, you 5 know, someone can be held accountable. 6 If an engineer is given -- you know, 7 testifies falsely or certifies falsely, his license 8 can be at risk. You know, all of us who have 9 licenses, whether we're doctors, lawyers, whoever, 10 you know, you have to meet certain standards or you 11 can lose that license. 12 An engineer should be the same and coal 13 companies should have to -- when they certify that 14 something is done, it should be accurate. Miner's 15 lives depend on it. We agree with the construction 16 provisions in 75.337, removing cables, et cetera, 17 batteries and all of that from the sealed area. 18 Direct supervision of making seals. 19 That's critical. Training is critical. What we 20 found at Kentucky Darby was these guys didn't know 21 what they were doing. I mean the supervisor didn't 22 know what he was doing. 23 The miners didn't know what they were 24 doing. 25 They just did what they were told. They 0058 1 were, you know, putting it up half way, just throwing 2 the things together, not mortaring. They were using 3 the wrong sealant. 4 You know, the seal between the top of the 5 -- 6 top of the seal in the roof, they didn't 7 have the materials they needed there. You know, they 8 were just stuffing whatever in the top. There was 9 gaps. Of course, there were straps there, too. 10 Everything was wrong there. So the 11 training, the direct supervision are important. 12 Dates, times, and initials, just like a pre-shift. 13 That's important. 14 That should be done. And a written 15 record is important. And I agree with Wes, that the 16 time frames for keeping those records I think need to 17 be extended to three years. 18 You know, the intake seals at Kentucky 19 Darby had been built I think three or four years 20 before the explosion. They weren't built properly 21 either. Nobody knew about it for three or four years 22 until after the return seals blew out. 23 Then they checked the intake seals and 24 found that none of them had been built properly 25 either. 0059 1 There were like seven or eight 2 deficiencies in those seals. And had a record been 3 required at that time that those seals were built, 4 then maybe there could have been some accountability 5 there. 6 And the requirement of the rule that a 7 senior mine management official must certify the 8 construction of these seals is important. We also 9 support the notification provisions, but with a 10 caveat. I don't think these notification provisions 11 are going to be very important if MSHA doesn't take 12 the opportunity to get out and check the seals. 13 You're saying that operators have to 14 notify MSHA within two to 14 days before building 15 seals, if we're going to build seals. Well, you need 16 to have an inspector there at least for part of that 17 time. I know you can't have a guy sit there for days 18 while seals are being built, but I think somebody 19 needs to make a visit, make sure they're following 20 the plan, and then go back out afterwards. 21 The operator has to notify MSHA within 22 five days after completion. It's critical that MSHA 23 take advantage of this and send an inspector out and 24 make sure that those seals were built properly. 25 The training is important, again, at 0060 1 Kentucky Darby. Nobody had been trained on how to 2 build seals. 3 You know, these were hourly employees who 4 went in. 5 They were told what to do. They didn't 6 -- you know, threw the thing up haphazardly. 7 Really quite frankly, it was a pretty 8 pathetic job and there was no accountability and it 9 leaves the impression that they really didn't care. 10 You know, it was like we don't want -- we 11 have a worked out part of the mine. 12 We don't want to ventilate it. We don't 13 want that trouble, so we'll just throw up a wall and 14 pretend that we're protecting people when in fact 15 there was no protection at all. 16 I appreciate the opportunity to testify. 17 What we're really asking here is for 18 accountability from coal operators and asking you to 19 do the right thing. You know, again, we don't want 20 another tragedy. 21 There's no reason in 2007 that we should 22 have miners dying because of improperly constructed 23 seals. 24 So please don't weaken the standard. 25 Thank you. 0061 1 MS. SILVEY: Thank you, Mr. Opegard. I have 2 just a few comments. First of all, I would like to 3 say for the record, that we agree with you, that we 4 must not, and we do not forget Mr. Ledford, so our 5 sympathies are with Mr. Ledford and his family. 6 Second of all, with respect to the mine 7 video, you know, let the record show that the Agency 8 will exercise its responsibility with respect to the 9 conditions on the video, and take the action that is 10 appropriate with respect to the seals. 11 I notice now on the cover of the video, 12 it says 4/20/07. So I want the record to show that 13 MSHA will do that. With respect to existing seals, 14 and we've gotten a lot of comments on the Agency's 15 approach to existing seals. 16 And to some extent, I'm being redundant. 17 Now, you heard me say part of it earlier. 18 Some of the people in Morgantown heard me say this. 19 Even after we laid out our approach with existing 20 seals, that while we did not require complete -- 21 either complete or replacement or complete 22 reinforcement. 23 In the instance that we found an 24 inspection, a monitoring revealed hazards, then we 25 did require corrective action. We did, at the same 0062 1 time, we solicited comments on the Agency's approach. 2 In Morgantown, what I would like to let 3 everybody know that the industry -- the state -- we 4 had a representative on behalf of the Interstate 5 Mining Commission, which is this compact of states. 6 The state and the UMWA supported MSHA's overall 7 approach to existing seals, recognizing that in some 8 instances, and just as I said in my opening 9 statement, it may be indeed to replace, to completely 10 replace existing seals, and I think you sort of 11 acknowledged that. 12 That might introduce a increased hazard. 13 So if I took down what you said, and I thought that I 14 did, I might not. I think at one point you said to 15 the extent that these seals should -- I don't think I 16 did take it down. I remember it. 17 To the extent that the seals -- that it 18 was feasible to do so, the seals should be 19 reinforced. So if -- I don't know whether you are 20 going to send us anything in Arlington before August 21 17th or not, but if you have any more specific 22 comments on either the feasibility or situations in 23 which existing seals should be reinforced, we would 24 appreciate that. 25 And actually, those are all the comments 0063 1 I have. I don't know if anybody else has any 2 comments. 3 Thank you, Mr. Opegard, and thank you and 4 your clients and everybody who has testified on 5 behalf of Appalachian Citizens Law Center. 6 At this time, I think probably people are 7 looking to see if we are going to take a break. So 8 if we could take a five minute break, please, because 9 we do have other people on the list to testify. 10 (Whereupon a break was taken.) 11 MS. SILVEY: Can we reconvene, please? 12 Again, please, everybody, so that we can 13 sort of keep our schedule. At this point, I would 14 like to reconvene the Department of Labor's Mine 15 Safety and Health Administration's hearing on 16 sealing. 17 The emergency temporary standard related 18 to sealing abandoned areas in underground coal mines. 19 At this point we have Joe Jacobs, COA. Mr. Jacobs. 20 MR. JACOBS: Thank you, Ms. Silvey, for the 21 opportunity to discuss a issue that is very important 22 to us. My name is Joe Jacobs. I represent COA, 23 which is a trade group that represents mostly small 24 coal operators in Eastern Kentucky, Western Kentucky. 25 I appreciate the fact that you have taken 0064 1 my call, and we have had some discussions about seals 2 and rebuilding seals. And so we want to make some 3 comments on those and asking questions. 4 And we're not asking questions to cast 5 aspersions on anybody. We're just asking questions 6 for a matter of information. Our feeling is is that 7 the Agency, the Mine Safety and Health 8 Administration, through it's sister Agency, NIOSH, 9 has an obligation to aid and assist the coal industry 10 and the coal industry has an obligation to aid and 11 assist NIOSH and MSHA in working to develop a safer 12 atmosphere for our coal miners to work in. 13 And therefore, to that end, we have some 14 questions in regards to seal construction, and we 15 want to ask you all to look at some situations that 16 we have not seen. As far as the seals that have been 17 posted online, we find that there's one, i.e., 18 Mitchell Barrett type seal that has been posted, and 19 the rest of them are from other pre manufactured 20 seals. 21 And we have some areas that we want to 22 ask that you look at. For example, in the area of 23 seal construction, what happens if we place flash in 24 front of the seals, or in the inby side of the seal, 25 or if we place sand or if we place gob. 0065 1 We feel that that would dissipate the 2 explosion as the explosion drew nearer the seal and 3 would serve to dissipate some of the force, 4 therefore, making the 50 psi seal an even more 5 stronger seal. So we point that out to you and ask 6 you to take a look at that and to see if there is any 7 areas that we can work with you to aid and assist in 8 developing seals that work in the coal mines that we 9 represent, which is mostly conventional type 10 sections, 20-foot wide. 11 They're going to be anywhere from 30 to 12 48 inches in height. Some of our engineers have 13 stated to us that the calculations that you have on 14 the 50 psi seal is actually a 96 psi seal, and we ask 15 that you look at that. 16 Also we find no Mitchell Barrett type 17 construction seals for 120 psi on the website at this 18 time and we ask is there a possibility that we would 19 have one of those. And I'm talking about concrete 20 block laid in a traverse pattern to obtain the 120 21 psi. 22 And as for the rebuilding or 23 strengthening of seals, we have some seals that are 24 built with whatever the term was. We were using the 25 prefabricated seals. 0066 1 What happens if we build a Mitchell 2 Barrett type seal in front of that. What is the -- 3 we ask you to develop for us the strength and the 4 overpressure and tell us what that is. 5 And we're just looking at what happens if 6 we ask you to aid us in preparing catalogs for this 7 is the seal design and this is how that seal should 8 be constructed. And then we'll get into the argument 9 later on of whether it was properly constructed or 10 not because you as the Agency look at it, and we have 11 people who are going to be there supervising the 12 construction and the certification of it. 13 But we believe that there ought to be a 14 way that NIOSH and the Mine Safety and Health 15 Administration would develop these to where they're 16 actually developed to give us a cookbook type seal 17 design of 50 psi overpressure and 120 psi 18 overpressure. 19 And we need to look at those that are 20 erected in 30-inch high seams, and look at those that 21 would be erected at 48-inch seams, 42-inch seams, six 22 foot and seven foot seams as well. 23 I think the ones that we have on the 24 Internet today are seals that are erected in 20 to 22 25 foot entries with seven to eight foot in height. And 0067 1 most of our coal seams in the Eastern Kentucky region 2 is not that size. 3 So when you have a less volume of area 4 where the area is smaller, what happens to the 5 pressures. 6 And if we have those, then it would 7 probably be easier for us to find people who would be 8 willing to look at the certification of these seals. 9 As of right now, there's not a lot of 10 folks who want to stake their livelihood and the 11 future on certification of seals. So we ask you to 12 look at that and to look at those design criterias 13 that you had. 14 And maybe we need to develop a cookbook. 15 We at the coal associations of Kentucky stand ready 16 to work with the Mine Safety and Health 17 Administration and NIOSH in developing these and 18 developing the regulations as we think that we should 19 be a joint partner in doing this, in developing them 20 so that compliance can be easily achieved. 21 And I'm not talking about fabrication, 22 but I'm talking about compliance. For example, we 23 look at monitoring behind seals, and for years the 24 Agency utilized a G60 pump to pull the air from 25 behind the seals to look at what it was, and to get a 0068 1 sample from behind the sealed area. 2 Now that we're being required to monitor 3 that, all of a sudden no one wants to do that. They 4 don't want us to do that because they're saying 5 that's not utilizing that pump for it's intended 6 purposes. 7 That's using it for something different. 8 It still pulls two milliliters of air. So we don't 9 see why. So don't make it so cumbersome for us to 10 comply that the small operator is not going to be 11 able to do that. 12 We employ quite a few people in Kentucky 13 coal mines, and we offer employment to them, and we 14 produce an awful lot of the energy that is used to 15 ensure America's independence in the energy source. 16 So therefore, we as small operators are asking you as 17 an Agency to help us and let's be partners in 18 compliance rather then being in an adversarial 19 position. 20 I'm not saying that you're in that 21 position now, and I appreciate you have been willing 22 to take my phone calls, talk to me, and we did get a 23 50 psi seal on the Internet. But I'm asking that we 24 go farther than that. 25 And if there is strengthening values in 0069 1 the use of Kevlar in bladders that have been 2 proposed, that's science and may we utilize that to 3 strengthen the seals that we now have by utilizing 4 the same kind of coating that goes into our 5 policemen's bulletproof vests. 6 There are some Kevlar bladders that are 7 out there. How we secure those is a matter of some 8 experimentation that we still need to do, but there 9 is that possibility out there. 10 There's also the possibility out there if 11 we take flash and place that flash behind that seal, 12 or if we take sand or if we take rock or gob, and we 13 insure to the best of our ability that that gob is 14 properly aligned with rock dust, it will dissipate 15 the force of the explosion coming out to the seal and 16 afford a greater protection. So we ask you to look 17 at those. 18 All right? 19 MS. SILVEY: Okay. Well, I have a few comments, 20 Mr. Jacobs. 21 MR. JACOBS: Yes, ma'am. 22 MS. SILVEY: First of all, so that everybody 23 will understand in terms of the structure of the 24 rule, and before I say that, I would like to say that 25 MSHA stands ready and willing, and indeed has 0070 1 responsibility to assist the entire mining community 2 in terms of achieving greater safety and protection 3 for miners. 4 And there I mean industry, the labor, the 5 state and we intend to live up to our responsibility. 6 MR. JACOBS: That's right. 7 MS. SILVEY: Now, as I say that, and I hope Mr. 8 Jacobs that as you gave me your general comments, 9 before the record closes on August 17th, that you 10 will reduce them to writing. 11 And to the extent that you have specific 12 suggestions for us, as I said in my opening statement 13 to everybody, that you would include specific 14 language. 15 MR. JACOBS: Yes, ma'am. 16 MS. SILVEY: That type of information will help 17 us as we move forward in developing the final rule. 18 The way the standard -- the ETS is structured is the 19 operator or manufacturers that operate -- or a 20 manufacturer can do that. There is a two-step 21 process for seal design, approval and installation. 22 The operator or the manufacturer sends in 23 the seal design to MSHA's office of technical 24 support, based on having an approval application, and 25 as many of you know, the seal design will be 0071 1 structured so that it meets and addresses specific 2 mining conditions. 3 So that's the first step. And then our 4 office of tech support engineers will review it and 5 look at it based on whether the application meets the 6 criteria in the rule, and based on the criteria that 7 we've laid out in the rule. 8 The office of tech support will look at 9 it and approve that design. That design then, an 10 approved design, an operator would take that approved 11 design, and based on specific mining conditions, will 12 ask for an approval of the site installation, the 13 seal installation in a particular mine, based on the 14 mining conditions. 15 Now, I guess what I'm trying -- and you 16 asked why did I say that. I guess what I'm trying to 17 ask you is it seems that what you are asking us is to 18 work with you in developing design for your mine, I 19 think, it looks like. 20 MR. JACOBS: In developing -- in developing seal 21 construction for all mines, and I know that all 22 mining conditions are -- 23 MS. SILVEY: Seal design. You said 24 construction. Seal design. 25 MR. JACOBS: -- going to be -- yeah, seal 0072 1 design. 2 MS. SILVEY: And we have put some templates, 3 because we do believe we have a role in assisting and 4 trying to get a handle on seals, just as we've heard 5 people say, we've had issues with seals and we have 6 admitted that. 7 So we have put certain designs, I 8 believe, on our website. In fact, we have a 50 psi, 9 one or two, and 120. Do we have at least one or more 10 than one? 11 MR. UROSEK: Yeah, we have more than one. 12 MS. SILVEY: Two. Two 120's on our website. 13 MR. SHERER: One gentleman has -- we got 14 several. 15 MS. SILVEY: We've got several on our website. 16 Thank you for help from the audience. We've got 17 several on our website. 18 MR. JACOBS: Yes, ma'am. 19 MS. SILVEY: And, you know, I'm sure that our 20 office of tech support is going to be as helpful as 21 possible to people and organizations who send 22 applications in. And in terms of seeking an approval 23 and trying to work with them and getting certain 24 designs approved. 25 But as I said, if you want to be more 0073 1 specific in your comments, you can feel free to do 2 that. For example, one specific thing you said that 3 you think that certain material, when used inby the 4 seal, might help to mitigate the damage. 5 So I would ask you to be specific, and if 6 you -- in terms of what exactly you are talking 7 about, and if you have experiences using that. If 8 you sent in a particular application. 9 MR. JACOBS: Those have not been sent to you for 10 approval. It's merely suggestions that we have by 11 utilizing our experience in mining and, you know, 12 I've been at this since 1969. 13 MS. SILVEY: I know. 14 MR. JACOBS: And as you well know, since 1969 we 15 found that seals have gone from the Mitchell Barrett 16 seal that we were utilizing to the Omega Block seal, 17 and even if you go back to the 69 Act itself, we had 18 the right to lay timbers skin to skin in heavier 19 caved areas. 20 Now, I don't know any of us that did 21 that, but we also had some water seals that were 22 there because of the water being roofed in low or 23 dipping areas. And as long as we could prove that 24 the water was roofed and there was no air passing 25 over those, a water seal was acceptable, under the 0074 1 alternative seal section of the previous regulation 2 that we had. 3 We're simply asking that we look at, 4 through tech support, the placing of flash, sand or 5 gob, inby a properly constructed Mitchell Barrett 6 seal to see if it improves the overpressure and 7 mitigates the outward force of the explosion. And 8 that may be something that we would be able to do to 9 obtain a 120 psi Mitchell Barrett type seal. 10 MS. SILVEY: Okay. 11 MR. JACOBS: Or we may need to lay additional 12 solid concrete blocks in a traverse pattern to 13 achieve the 120 psi Mitchell Barrett seals. 14 MS. SILVEY: I do have an additional comment on 15 -- you mentioned that calculations, your calculation 16 showed that we have -- that the calculations we have 17 on the 50 psi really come to 96 psi, and I would like 18 it if you would provide that to us, specific, the 19 calculations that you have that show differently than 20 ours. 21 MR. JACOBS: Yes, ma'am. All right. 22 MS. SILVEY: Okay. And that's really all I 23 have. Does anybody have anything? Okay, thank you, 24 Mr. Jacobs. 25 MR. JACOBS: Thank you. 0075 1 MS. SILVEY: Next we will hear from Tony Huff 2 with THA Engineering. Tony Huff? No? 3 MR. HUFF: I'm Tony Huff, h-u-f-f. Tony, t- 4 o-n-y. I am a professional engineer and 5 I just want to express my thanks to MSHA for bringing 6 the attention that you are to the seal issue. I do 7 have a few comments and questions, but most of them 8 are technical issues and I think what I'll do is get 9 with tech support and kind of put our heads together 10 and maybe make some comments later in writing when I 11 get my thoughts a little more clearly defined. 12 As an engineer, I do want to express 13 optimism that we can come up with a cost-effective 14 and feasible solution to seals, and we are working on 15 that. And that's all I have to say. 16 MS. SILVEY: Okay. Well, I would encourage you 17 -- you know, you said you would get with tech 18 support, but I would encourage you, if you have 19 specific comments, to get them in to us before the 20 record closes on August 17. 21 MR. HUFF: The 17th. 22 MS. SILVEY: That's right. Thank you. 23 MR. HUFF: Thank you. 24 MS. SILVEY: Next we have Bill Caylor, Kentucky 25 Coal Association. 0076 1 MR. CAYLOR: Ms. Silvey, members of the panel. 2 I want to welcome you to Lexington today. My name is 3 Bill Caylor. It's c-a-y-l-o-r. I am president of 4 the Kentucky Coal Association. The Kentucky Coal 5 Association represents large and small surface and 6 underground operators in both the Eastern and Western 7 Kentucky coal fields. 8 Since this hearing is in Kentucky, at the 9 beginning of my remarks, I would like to make some 10 brief comments on the basic Kentucky coal facts and 11 some industry trends. In terms of production, we 12 mined 120 million tons of coal in 2006. 13 Approximately 80 percent of that figure 14 is mined in East Kentucky and 20 percent of that 15 figure is mined in West Kentucky. Of the coal that's 16 mined in East Kentucky, roughly 60 percent is mined 17 underground and roughly 40 percent is mine to 18 surface. 19 In West Kentucky roughly 80 percent is 20 mined by underground mining methods and roughly 17 -- 21 or roughly 20 percent is mined by surface methods. 22 Production in Kentucky peaked in 1990 at 23 179.4 million tons. 24 Currently Kentucky ranks third in the 25 nation in production behind Wyoming, which mines 450 0077 1 million tons and West Virginia which mines at 150 2 million tons. 3 In terms of miners, we have over 17,000 4 -- actually 17,190 coal miners in Kentucky, and 5 that's down from roughly 48,000 in 1981. 6 The multiplier effect, because we have 7 17,000 miners working, we have a multiplier effect of 8 around four other people working for every one person 9 employed by the coal industry. So we have a 10 multiplier of trickle-down jobs of around 50,000 11 jobs, actually statewide. 12 These could be people that work for 13 utilities, equipment vendors, repairmen, engineers, 14 truckers, accountants, lawyers, and just people that 15 work in every form of occupation in East Kentucky, 16 East and West Kentucky. 17 The Kentucky coal miner earns an average 18 of $47,000 a year, and that's usually a very nice 19 wage in the areas that are impoverished in the coal 20 fields. 21 Three percent of the working miners are 22 members of the United Mine Workers. 23 There's nobody with the United Mine 24 Workers in East Kentucky. They represent mines and 25 miners in West Kentucky. In terms of exports, 0078 1 Kentucky will export about 70 percent of its coal. 2 We export to about 23 states and four foreign 3 countries. 4 About 70 percent of our coal production 5 in Kentucky goes to utilities and about 30 percent 6 goes to industrial users. Of the about 70 percent 7 that sold out of state, we bring in over $3.5 billion 8 into the State of Kentucky, and about 85 cents on 9 each dollar stays here in Kentucky in terms of wages, 10 benefits, operating expenses, royalties and taxes. 11 So the majority of the money that we 12 bring in stays here in Kentucky. Coal paid over $230 13 million in severance packages last year, in addition 14 to the normal business and taxes that companies pay. 15 Reserves, we have 88 billion tons of 16 reserves in Kentucky, well more than we could mine in 17 over 200 years. West Kentucky has 36 billion tons 18 reserved and East Kentucky has 52 billion tons of 19 reserves. In terms of the nation's supply of 20 electricity, coal provides between 50 and 52 percent 21 of our nation's electrical needs. 22 That's followed by nuclear with 20 23 percent, natural gas with about 16 percent, 24 hydropower at about 7 percent, oil at about 3 25 percent, and renewables at only 2 percent. And when 0079 1 I refer to renewables I'm talking about wind, solar, 2 biomass and geothermal, with biomass being the 3 majority of that. 4 In Kentucky, coal provides 91 percent of 5 our electricity. We have one of the lowest 6 electrical rates in the nation because of coal. Coal 7 miners truly are American heroes. I couldn't be more 8 proud of our coal industry. 9 Now let me touch on Kentucky and U.S. 10 production trends very briefly. To the 11 year to date, through June, Kentucky's production is 12 down a little over six percent. Production east of 13 the Mississippi is down nearly 3 percent. 14 If you ask yourself why, there's several 15 reasons for this. A drop in the coal process paid by 16 utilities, the implementation of state and federal 17 safety laws, general expense increases, such as the 18 cost of steel, fuel, explosives, benefits, and the 19 trend toward surface mining. 20 Surface production is generally cheaper 21 and safer than underground production. This is 22 especially true in a state like Wyoming where you 23 have 50 to 60 foot thick seam of coal. My forecast, 24 you will probably see the continued decline in 25 production east of the Mississippi, especially in the 0080 1 Appalachian region. 2 Production costs for underground mines 3 continues to escalate. The small operator is quickly 4 becoming a thing of the past. Just like the Wal 5 -Mart's and the McDonald's, the coal industry is 6 rapidly becoming dominated by large multistate 7 corporations. 8 And what many people fail to realize is 9 that the corporate philosophy is to obey the laws. 10 It's easy to say the coal industry is an outlaw 11 industry, but these statements are untrue and very 12 misleading. 13 The coal industry has a very positive 14 safety record, something we've lost sight of. 15 Nationally we have witnessed a steady downward trend 16 in both fatalities and injuries over the past 30 17 years. This is fact, not emotion. 18 We've had good years and bad years, but 19 the trend clearly is a downward trend. We are making 20 a very positive progress, and the thanks go to state 21 and federal safety agencies, company safety 22 philosophies and the quality of our workforce. 23 With regards to injuries, did you know 24 that the Kentucky coal miner is safer from injuries 25 than the average Kentucky worker. And yet, if you 0081 1 listen to the news press, you would think just the 2 opposite. In terms of fatalities, in Kentucky, 3 during a three-year period, between 2002 and 2005, 4 the following Kentucky categories had average annual 5 fatalities as follows. 6 Service, providing as a category, had an 7 average of 52 fatalities per year. The trade, 8 transportation and utilities had an average of 36 9 fatalities a year. Agriculture, forestry, fishing 10 and hunting had an average of 26 fatalities a year. 11 Transportation and warehousing had an 12 average of about 26 fatalities a year. Construction 13 had an average of about 21 fatalities a year. 14 Government had an average fatality of about 14 15 fatalities per year. 16 State and local government had an average 17 of about 12 per year. 18 Manufacturing had about 12 per year. 19 Coal mining had just over eight fatalities a year on 20 an average. Retail trade had almost eight and 21 professional business services had approximately four 22 per year. 23 Coal mining fatalities are much fewer 24 than other industries but because of press coverage, 25 every coal death is front-page news, while a 0082 1 construction fatality is buried in the second 2 section. 3 Here's an interesting fact. Did you know 4 that 750 people die each year in the U.S. from eating 5 bad or ruined potato salad. Do you think that we 6 could get some new laws put on the books to control 7 these deaths? 8 There are numerous, numerous other 9 examples like that example. The point is, regardless 10 of the reason why, coal clearly has been singled out 11 by the news press. So have the hard working people 12 at MSHA. 13 MSHA inspectors are honest, hard-working 14 individuals, dedicated to safety. 15 It's frustrating to read otherwise in the 16 papers. Like all of us here this morning, our goal 17 is zero fatalities. We all have this common goal. 18 How to reach this goal is what we sometimes disagree 19 over. We think the key to taking safety to the next 20 level is with behavior modification. 21 Behavior modification is the key to 22 ensuring miners know and want to work in a very safe 23 manner. 24 Behavior modification is teaching the 25 miners why it is important to work safely. Not just 0083 1 for themselves but for their employers, and more 2 importantly for their families. 3 To affect behavior modification takes 4 time, commitment and money. Too much emphasis is 5 being placed on enforcement while behavior 6 modification is being ignored. While enforcement is 7 critical, an equal emphasis should be placed on 8 behavior modification. 9 We strongly encourage MSHA to focus more 10 on this aspect of mine safety. We support safety 11 improvements, but need rational safety requirements. 12 In the rush to get emergency standards 13 published, many questions were left unanswered. 14 There have been many hardships, many 15 questions where different answers are given in each 16 of the MSHA district offices. We need rational 17 safety requirements. MSHA still doesn't have the 18 answers to many of the questions on seal 19 construction. 20 In this emotional rush, we are over 21 designing and needlessly wasting efforts. We 22 question MSHA's urgency and inflexibility with this 23 emergency standard. 24 We fear MSHA has set a basis with its 25 emergency temporary standard, from which they will be 0084 1 unable to back down from, even based on the 2 engineering and technical comments they may have 3 received during these public hearings. 4 Why the ETS? What made a grave danger 16 5 months after Sago, and with the July 12th PIB in 6 place with much of the same requirements, we should 7 have issued a proposed regulation with a quick 8 comment period to eliminate mistakes we're facing 9 under this emergency rule. 10 It is imperative that we take politics 11 and emotion out of this process. We are frustrated 12 with the inability to comment on many of the 13 assumptions used by MSHA in seal design. Based on 14 various Powerpoint presentations by MSHA, how can 15 tech support require a two to one safety factor in 16 the seal design with it not being required in the PIB 17 or the ETS. 18 And all requirements, assumptions, 19 inputs, et cetera, used by tech support to evaluate 20 seal designs should be publicized for review and 21 comment. We oppose the replacement of existing 22 seals. MSHA solicited comments in the preamble on 23 the feasibility of requiring existing seals to be 24 removed and replaced. 25 The final rule should not require the 0085 1 replacement of existing seals, due to several 2 reasons. 3 It can be dangerous to replace seals. It 4 increases the chance of getting someone hurt or 5 killed. Many times there isn't sufficient space for 6 a second seal. 7 In many cases there is only a walking 8 path to get to seals, making it difficult to get 9 materials to the seal area. You cannot do a one size 10 fits all, and the cost of such replacement is a 11 factor. The seals are currently required to be 12 monitored, and the atmosphere behind the seals to be 13 inert as required by the ETS. 14 Strengthening existing seals could be 15 accomplished if a simple cost-effective product were 16 available. We understand that testing has been done 17 on a substance, but the results have not been 18 released. 19 So I think we've got some very promising 20 things to look forward to. We oppose having a 21 professional engineer certify as built seals. The 22 requirement that a professional engineer must be 23 knowledgeable in structural engineering will cause 24 problems. 25 MSHA's interpretation of this proposal is 0086 1 that the engineer must be a structural engineer. 2 Engineers like attorneys and physicians 3 are licensed to practice their profession, but their 4 profession does not recognize certain practice areas. 5 In other words, once one receives his 6 professional license, whether it be a physician, an 7 attorney or an engineer, he can practice in any area. 8 Professional ethics require him to ensure 9 his own competency in the area he intends to 10 practice. 11 Further, structural engineers may not be 12 competent in mining engineering. There are many 13 areas of underground mining where a structural 14 engineer would not be competent to practice. So 15 requiring an engineer to be a structural engineer is 16 improper. 17 The words knowledgeable in structural 18 engineering should be deleted. We also have concerns 19 over the requirement for the engineer to have 20 oversight of the seal installation. This would be 21 difficult, expensive and not necessary. 22 There are many unknowns in the 23 construction of seals, i.e., the concrete mix that's 24 shipped to the mine and various other materials that 25 are used in the construction of the seal. There are 0087 1 so many factors completely beyond the engineer's 2 control. 3 Even the term oversight itself is 4 somewhat vague. You have double certification since 5 MSHA is requiring someone from the company to certify 6 construction. It is obvious that MSHA just wants 7 someone to blame if something goes wrong, but in 8 reality, this will prove difficult. 9 Most serious or fatal accidents are a 10 result of a series of mistakes or wrong actions. 11 Having predefined scapegoats is owners at best. 12 Finding a mine foreman is becoming increasingly 13 difficult. Who wants the responsibility. It will be 14 hard to find someone to certify seals when the 15 liability will stay with this person many years into 16 the future, long after he's left the company. 17 I can see right now someone retired in 18 Harlan, or maybe in Georgia or Florida, 10 or 15 19 years later and there's an explosion, and he'll have 20 his retirement proceeds attached in some type of a 21 prejudgment attachment. 22 It is going to be difficult to get people 23 to certify that these seals are constructed. We 24 suggest the use of Mitchell Barrett seals and other 25 pre designed seals approved by MSHA. And basically 0088 1 we're backing up what Joe Jacobs testified to earlier 2 just a few minutes ago. 3 We join with others in urging MSHA to 4 allow the Mitchell Barrett seals for the 50 psi 5 standard. 6 The cost of installing the new approved 7 seals will put a lot of smaller operators out of 8 business and would force some to avoid sealing 9 altogether, which will increase exposure to workers, 10 supervisors and inspectors in traveling extensive 11 abandoned works that are not sealed. 12 This concludes my oral remarks. Our 13 technical comments will be submitted at a later date. 14 Thank you very much. 15 MS. SILVEY: Thank you. Thank you, Mr. 16 Caylor. I have a few comments and maybe 17 some members of the panel might have some also. 18 First of all, let me just say we appreciate, and for 19 everybody here today, we appreciate your comments and 20 testimony to us, and I will say again that -- I think 21 I said it earlier, that we know it takes some time 22 for people to come and participate in these MSHA 23 hearings. 24 And we understand that and we appreciate 25 that. And that's one -- but one of the reasons is 0089 1 that we need these comments and testimony as we go 2 and develop this final rule that we've heard from 3 some people so far during this rulemaking process, 4 why some people have liked it and some people have 5 liked most aspects of it. 6 And some people have probably not liked 7 it a lot, that a lot of the people have had comments 8 that they said they want us to improve certain areas. 9 And so that's why we are here. With respect to the 10 -- you said many questions were left unanswered when 11 we issued the ETS. 12 And toward that end, we have issued some 13 compliance guides that certain questions were sent 14 directly to us. We got it out and I said earlier, we 15 had to try to quickly get it out, and we've answered 16 questions in the compliance guide and we put them on 17 the website. And I think we have another compliance 18 guide about ready to come out. 19 MR. SHERER: Should be soon. 20 MS. SILVEY: Should he out soon. Now, to the 21 extent -- and I say this for everybody in the room 22 now. 23 To the extent that you say to us in a 24 general way that different districts are given 25 different answers, yeah, you know, sometimes 0090 1 different answers are appropriate, obviously, because 2 the mining conditions are different. 3 But sometimes when it gets to maybe 4 certain principles of things, they may not, they 5 should not be different. So we try where we should. 6 We try to achieve consistency in our districts. 7 So where districts are given different 8 answers on certain basic things, I would ask people 9 who make those comments to us, to give us specific 10 examples. And I'm not asking you to do that now when 11 you send your comments to us before the record 12 closes. 13 Would you like to add anything to that, 14 Erik, since you were here for coal mine health and 15 safety? 16 MR. SHERER: Sure. A couple of things. 17 First of all, thank you for your 18 participation and your input. The second thing is I 19 thank you for your patience. This is an emergency 20 temporary standard. 21 It's something that we felt that we 22 needed to get out there immediately to address the 23 grave hazard to miners. 24 And it is something that is in the 25 process of being improved as part of the ETS process. 0091 1 There is a learning curve for all of us and I ask 2 your forbearance. 3 MS. SILVEY: Yeah, okay. I would like to now 4 state, Mr. Caylor, and I know you'll appreciate this, 5 why this is an ETS, and I said this in my opening 6 statement. It also serves as the proposed rule and 7 commences the regular rule making progress. 8 And I know, you know, people have come to 9 us and said, you know, things are cast in concrete 10 because it's an ETS and the Agency cannot, will not 11 change anything, but even though it is an ETS, under 12 the Mine Act, it commences regular rule making. 13 So to the extent the Agency gets 14 justifications and comments and rationale, with 15 supporting rationale, as to areas that we should 16 change for the final rule, then that's what we need 17 to do and that's what we will do where appropriate. 18 So I want to say that here, and I'll 19 probably end up saying that at two more hearings, the 20 same thing. The Agency, as our attorney advised me 21 -- you know, I have an attorney, too, that we stated 22 that in the proposed rule, and she's right. 23 Also, we heard this in Morgantown, too, 24 and I've heard it intimated here today, intimated and 25 now specifically stated in your comments, Mr. Caylor, 0092 1 how can tech support require a two to one safety 2 standard when it's not in the ETS or the PI -- and 3 you're right. 4 It is not in the ETS, a two to one safety 5 factor and we are not requiring a two to one safety 6 factor. As I said to Mr. Jacobs, if you have 7 calculations that differ from ours, or are in your 8 mine, show -- convince you that we are requiring a 9 two to one safety factor, then I want you to get 10 those in to us. 11 The ETS does not indeed require a two to 12 one safety factor. With respect to the replacement 13 of existing seals, and I think I mentioned -- I 14 talked about that enough already, in terms of what 15 the Agency requirement is, but with respect to why we 16 should not in the final rule, require replacement of 17 existing seals, due to several factors, I, like you 18 -- because we stated in the preamble why we did not, 19 and I think I said that when Mr. Opegard was up here 20 in his -- with the Appalachian Citizens Law Center. 21 But with respect -- and you stated 22 specific factors here, but I would like you to, if 23 possible, expand on the specific factors. Be as 24 specific, no pun intended, be as specific as you can 25 with respect to the specific factors that you 0093 1 included in your written statement here to us today. 2 For example, you said it could be 3 dangerous to replace. Be as specific as you can, and 4 we indeed said that in the preamble. Also, with 5 respect to strengthening existing seals, we did state 6 that we were reviewing new technologies, that they 7 have come onboard to look at as to whether there are 8 better technologies coming on board that we could use 9 to strengthen existing seals. 10 So we are going to continue to do that, 11 but if you all have ideas about new technology, new 12 and better technology, please provide that to us in 13 written comments. 14 The only last comment I have is on the -- 15 well, I have two actually. On the 16 requirements that's the engineer, in terms of the 17 site installation, that there be an engineer -- 18 certified by the engineer, and you state that you 19 oppose that. 20 And you do have specific reasons as to 21 why you oppose it right here. Do you oppose it, and 22 this is sort of -- you have specific reasons here, 23 but is part of your rationale that you oppose it in 24 terms of just the -- at the time of the engineer to 25 be there or are you opposing it for other reasons? 0094 1 MR. CAYLOR: Well, there's a whole lot of 2 questions when you talk about just the time to be 3 there. Are we talking about, you know, 24/7 or are 4 we talking about -- 5 MS. SILVEY: Okay. That's what I wanted to get 6 out. 7 MR. CAYLOR: -- reasonable? Are we talking 8 about having a designated person under the control of 9 the engineer do that, which is very common under 10 other engineering practices. 11 MS. SILVEY: Okay. 12 MR. CAYLOR: So there's a lot unanswered, and I 13 think we're going to see the answers as we move down 14 the road. That's why the emergency standard being in 15 force was troublesome. You know, if we could discuss 16 these factors, we could understand more of what is 17 required. 18 MS. SILVEY: And that's what we are trying to do 19 now. So I gather, partially I gather, what you're 20 saying is that if we were to clarify that we are not 21 indeed talking about the engineer being there 24/7, 22 but just have -- then there might be some way to 23 where we can make clarifications. 24 And as to matter of fact, as I said, we 25 are getting another set of questions that are getting 0095 1 ready to come out now, and I think some of the issues 2 even maybe that we are discussing today will be 3 clarified. 4 MR. CAYLOR: We have normal engineering 5 practices, and I would strongly encourage MSHA to 6 deal with some of the Kentucky Board of Registration 7 for engineers to discuss even with these agencies 8 what are the normal engineering practices. I think 9 that would be very helpful for the Agency. 10 MS. SILVEY: Okay. With respect to the -- 11 and just so everybody knows, I like to 12 call it the concrete block seal. I know it's 13 commonly referred to in the industry as the Mitchell 14 Barrett seal, but with respect to the concrete block 15 seal, and we heard this testimony before, that 16 everybody joins in pushing MSHA to allow for that 17 seal, but it's my understanding that we do allow the 18 concrete block seal as a 50 psi seal. 19 And I clearly am not -- I understand, I 20 think what commenters are saying. Commenters I think 21 are saying to us the concrete block seal, as 22 specifically specified in the prior standard. I 23 think that's what I'm hearing, and maybe with the 24 concrete block seal that we are allowing now, there 25 are some additional requirements for it. 0096 1 But just so -- I don't want people to go 2 out and everybody think that MSHA did away with the 3 concrete block seal, because that is -- so maybe it's 4 the concrete block seal with additional parameters. 5 But, one comment that you said, you said 6 the cost of installing the new approved seals would 7 put a lot of smaller operators out of business and 8 would force some to avoid sealing altogether. I 9 would like you to provide -- be as specific as you 10 can there, and provide specific examples in your 11 comments before August 17th. 12 MR. CAYLOR: That follows up on what Joe Jacobs 13 mentioned. He was asking for off-the-shelf designs 14 that could be used, especially by the small guy. A 15 lot of times the small guy doesn't have the financial 16 wherewithal to put so much engineering design into 17 the development of a seal. 18 And as much as we can get from MSHA in 19 designing some off-the-shelf seals, that would be 20 very helpful, especially for the small operator. And 21 I'll tell you, those guys are getting fewer and 22 fewer, like it or not, but we're no different from 23 any other business. 24 The Wal-Mart's and McDonald's are 25 replacing the family restaurants and the local 0097 1 department stores. 2 It's just a fact of life in this country 3 and we're seeing it in our industry. 4 MS. SILVEY: Anybody else? Okay, Mr. Caylor, 5 thank you very much. 6 MR. CAYLOR: Thank you very much. 7 MS. SILVEY: We next have John Salley with James 8 River Coal Company. 9 MR. SALLEY: My name is Jonathan Salley, j-o- 10 n-a-t-h-a-n, s-a-l-l-e-y. I'm born and 11 raised in Hazard, Kentucky. I'm from the coal 12 fields, third generation coal miner. I work for 13 James River Coal as an engineer for a couple of its 14 subsidiaries. And a lot of my questions were more 15 technical in nature. 16 I'll just kind of touch on a couple of 17 those in generality and then give you more detailed 18 questions to tech support to address. A lot of our 19 coal mines will have a problem with a note in the ETS 20 in regards to cutting and welding within 150 feet of 21 existing seals. 22 A lot of our mines are developed with 23 very narrow main lines that by it's very nature, the 24 center of those main lines have our belt lines 25 installed in them. And to maintain head drives and 0098 1 such, they're pretty close to those seals that are 2 already in existence. 3 That being said, they're on a separate 4 split of air, so when tech support starts looking at 5 this issue, it would be nice if you could just take 6 that into consideration knowing that there's 7 substantial air quantity passing by those seals. 8 That they are in a separate air course in 9 its entirety and there probably isn't the same kind 10 of situation as if you were cutting and welding on a 11 return close to a set of seals, as is stated in the 12 ETS. 13 Another thing that I wanted to make sure 14 and mention was Sago -- cite as a possible cause for 15 that explosion was a lightening strike. And in the 16 ETS, it's been noted that all abandoned cables in 17 sealed areas should be removed by the operator to 18 help eliminate any cause for future explosion as a 19 result of a lightening strike. 20 My question is, in a lot of these sealed 21 areas, we have gas wells from the oil and gas 22 industry that have drilled wells all around our 23 sealed works in these abandoned areas. It just seems 24 from an engineering standpoint, and a practical 25 standpoint, that the most direct route for a 0099 1 lightening strike to enter the coal mine would be 2 down the casing of a gas well or an oil well. 3 I think it's pretty much a requirement 4 that there are multiple casings there that could 5 transmit a lightening strike in to the coal mine 6 area. Most of the time these wells are in barrier 7 blocks in between worked out areas of the coal mine, 8 but the coal companies can't really certify how much 9 the steel has wandered and how close that gas well is 10 to the actual mine works underground. 11 And neither will the oil and gas industry 12 give you any guarantee on how much that steel has 13 wandered. If the well has been drilled several 14 hundred feet, it could be dramatically different from 15 a surveyed location on the surface. 16 So I would just ask that tech support 17 look at that issue and maybe give us some kind of 18 additional protection for the miners because, you 19 know, I am from the coal industry. I have family and 20 friends that work in the coal mines, and I want to 21 make sure that they are safe. 22 And I go underground as an engineer. So 23 it's important for me to know that you guys look at 24 that issue and it's taken into consideration. I'm no 25 professional guy that's been in the industry for 30 0100 1 years, and the people at tech support probably know a 2 lot more than I do, but just from a practical 3 standpoint, a piece of cable that's laying in a 4 worked out area that's separate from the outside 5 atmosphere, just doesn't seem like it's as likely a 6 cause for a spark as maybe a gas well steel casing 7 that comes from the surface to ground all the way 8 through that coal seam and below. 9 We've talked about how NIOSH and tech 10 support is interested in getting more comments from 11 industry, and I applaud that because really it just 12 seems like from my short career in mining, we have 13 dictated to the coal industry what we're supposed to 14 do a lot of times when you have these guys that have 15 30 years in the coal mines, that have all this 16 practical experience that can really help people at 17 tech support or NIOSH understand what they can do and 18 what they can't do it in a coal mine. 19 You know, we see designs that are posted 20 that really look more like civil engineering projects 21 than something of what we're used to doing in a coal 22 mine. 23 And I just think that a greater industry 24 participation and a better communication with NIOSH 25 and tech support may give us better designs that are 0101 1 more practical and easier to construct, easier to 2 comply with that our coal miners won't have such a 3 hard time making sure that they do it correctly. 4 There's some questions that I will note 5 on a card or a questionnaire to tech support on the 6 pressure piling. It's mentioned in the ETS, and I'm 7 not so sure how that's calculated, but any of those 8 calculations, as well as some of the basis for the 9 designs that are posted, would be nice to see just so 10 that we can see how you arrived at those designs. 11 And the certification for the engineers 12 on the design and the construction process of the 13 seals, I think Bill kind of mentioned something that 14 I myself am personally a little bit afraid of. If 15 I'm involved in the certification of some seals at 16 one of my mines, and I do go somewhere else, or 17 something changes in that coal mine, because coal 18 mines, they're not static. 19 They are dynamic animals. Seals require 20 maintenance, and as we mine more and more coal in 21 East Kentucky, you have multi seam interactions to 22 where the conditions for that coal mine, when the 23 seal is constructed today, may not be the same five 24 years from now and who's going to be held liable. 25 Is it going to be me? Especially when I 0102 1 have no control over Mother Nature or whatever you 2 want to call it. I have additional questions, but 3 like I said, I'll leave the more technical in nature 4 to a letter or a request to tech support, but that's 5 all I have today. 6 MR. UROSEK: I guess the only comment I would 7 like to put out there for you is in the overall 8 design and the ones that you see on the Web -- of 9 course, when any is submitted to MSHA, that design 10 will go on to the Web, and it can be used by others 11 that have that same type of ground or same type of 12 conditions. 13 So in any design that's up there, it is 14 designed for the 50 or the 120 psi. So for example, 15 if at your mine you have a design using concrete 16 blocks or any other type of material that you believe 17 will exceed the 50 psi using common mining 18 construction techniques, and you provide the 19 calculations to technical support and certify those 20 calculations, that that design will meet 50 psi. 21 That's something we will look at to 22 approve, and as long as it has all the requirements 23 of the information necessary in the ETS, and it is 24 certified by a registered professional engineer, it's 25 most likely that design will be approved. 0103 1 So it is open for that. Some of the 2 designs are going to be more robust than others, but 3 it depends on what someone submits and to whether 4 they meet that requirement. That's something that is 5 certified by the professional engineer that submits 6 it to us. 7 MS. SILVEY: One of the reasons we are putting 8 them up on the Web is so this information will be 9 available to all who have an interest in even maybe 10 taking one particular design we put up there, and 11 then use different materials or different things in 12 conjunction with that material. 13 And maybe they might come up with another 14 design. So to that extent, I think that is useful to 15 the mining industry. 16 MR. SHERER: I have a comment about the gas 17 wells. 18 MS. SILVEY: Okay. 19 MR. SHERER: First of all, I appreciate you 20 coming down and I especially appreciate your comments 21 about oil and gas wells. We do realize that they are 22 a problem, and in fact MSHA met with the State of 23 Kentucky last week to try to coordinate between the 24 oil and gas permitting process in the coal mine 25 locations and such. 0104 1 So we are working on that. There are 2 some differences of jurisdiction and such that we've 3 got to work through, though. 4 MS. SILVEY: Okay. Thank you very much. 5 Next we have Mike Amick. Mike Amick. 6 MR. AMICK: My name is Mike Amick. It's a-m-i 7 -c-k. I want to thank you for allowing me to speak 8 this morning. I would like to offer some of my 9 opinions from working with seals since 1991, 10 everything from installing the seals to research and 11 development of seals. 12 I would like to make it clear that these 13 views are my own and they're not of my current 14 employer, or previous employers, or any currant or 15 prior clients. I view myself as an interested party, 16 independent, that can offer some points of 17 information that might make the nation's mines a 18 little safer. 19 I'd like to spend a lot of time on some 20 of these issues, but I'm going to keep it as concise 21 as I can, and please ask me any questions to clarify. 22 The first thing I'll touch on is the professional 23 engineer issue that you've already heard from. So 24 I'll keep that brief. 25 Some of the issues that I see, one is the 0105 1 professional engineer and the certified person 2 responsible for the area, can often be in conflict 3 and it should be clear that in the narrow definition 4 of the seal design, that the PE be responsible for 5 the design and as an as built and not necessarily as 6 some of the wording is in the explanation text as 7 accompanied with these proposed regs. 8 I see that the best solution is that the 9 professional engineer certify the seals on an as 10 built basis, including the design and maybe some of 11 the key building points. For example, that the rebar 12 was such and such facing, and it was such and such 13 diameter, and the seal form was so thick, et cetera. 14 In fact, we have to ask ourselves, 15 listening to people this morning, if these designs 16 are so complicated and complex that we need 17 professional engineers, certified persons, and other 18 experts to watch every moment of the design, are we 19 being unreasonable. 20 One thing I would like to offer is that 21 the proposed 75336 (b) (2) should have the words 22 stricken, conduct or have oversight of seal 23 installation in order to make that section more 24 workable. And I'll also admit these written, also 25 before the August 17th deadline. 0106 1 I also think that because the actual work 2 of installing the seals is done by miners or the 3 contractors, and because of the importance of the 4 seals, that not only should you have the PE certify 5 the design and as an as built, and it should have 6 your certified person sign the construction book. 7 You should also have the members of the construction 8 crew sign this book. 9 They are just as important as everyone 10 else on this team and they need to signify that they 11 had performed these tasks as they were trained to do. 12 It's no different than a roof bolter operator 13 installing roof bolts correctly or the rock dusters 14 putting on rock dust correctly. 15 And also I think it's important to keep 16 in mind that the professional engineer and certified 17 persons cannot be expected to be experts in all 18 fields. 19 And what I'm saying there is on concrete, 20 steel, different materials used, you can't expect 21 them to certify them per se, but the regulations 22 should allow them to accept certification from the 23 manufacturer or whomever these materials were 24 received from. 25 On some small mine costs, I was in a mine 0107 1 last week at East Kentucky, 25 inches high, that if 2 he put in seals as proposed on the Internet now, the 3 cost would be approximately 25 percent of his total 4 profits last year. 5 If you took it on a revenue basis, it 6 would be somewhere between 10 and 15 percent. So 7 it's far more than what's on Pages 28812 and 28813. 8 And I'll try to get some more detail and submit that 9 at a later time. 10 I also think that mines that are above 11 the water table, which are generally small by nature, 12 both in number of employees and in arial extent, 13 still be allowed to use the 20 psi standard. When 14 it's been shown historically that there's no methane 15 and that the area could be monitored and the methane 16 is below two and a half percent, and the oxygen 17 remains below 17 percent. 18 If these areas should ever approach these 19 two and a half or 17 percent ranges, then either the 20 50 or 120 psi seals should be installed. There's a 21 lot of these seals out there that have not failed, 22 and I don't know that it's right to all of a sudden 23 crucify them all. 24 On Pages 28799 in column one, it 25 discusses the development of alternative seal 0108 1 designs. I believe this section is incomplete and 2 it's more like what I've seen in the media that it's 3 just inaccurate on how these standards were 4 developed. 5 It's always stated that the seal 6 standards were weakened, and that's not the case. 7 One of the goals of that program, if not the goal of 8 the program, was to find an alternative to the 9 standard block seal because they were failing and 10 under certain conditions. 11 The Mitchell seals were failing in mines 12 that had higher rates of convergence. Now it's 13 difficult to tell, but probably in that video what 14 you saw was those seals failing due to convergence, 15 and an alternative design would probably have been 16 more effective in that situation, but again, it was a 17 video in the dark and it's kind of hard to say. 18 But my point is that having been there 19 and lived through all of those testing programs, 20 there was never any intent to weaken designs. It was 21 the sole intent that I was aware of was to allow 22 designs that could be installed in difficult 23 conditions. 24 The failure of the seals at either Sago 25 or Darby is not ironclad evidence that all 0109 1 alternative seal designs are bad. Only in these two 2 specific instances they failed whether they were 3 improperly built, they were built properly but in the 4 wrong application, or they were built properly and 5 the explosion was simply higher than the design. I 6 don't know. 7 I've only read what I've read in the 8 media and I know that the media is typically 9 inaccurate. 10 Mitchell seals have been blown out 11 several times where in the same set of seals, 12 alternative seals survived, and therefore you might 13 call them superior. 14 I've seen it with my own eyes, and like 15 at Sago, they were caused by lightening strikes. The 16 MSHA report dealing with Oak Grove explosions back in 17 the '90s goes into these events in great detail. I 18 also think it's important that there is an atmosphere 19 of cooperation. 20 Many of these mines, they have unique 21 situations that need to be addressed and trying to 22 come up with an iron clad, bulletproof set of 23 regulations to cover every situation is just 24 impractical. A mine with soft ribs or floor, for 25 example, they need a design that has a much greater 0110 1 plug than anchoring it to the rock because of the 2 rock's weak nature. 3 This gets back to my earlier point of 4 professional engineers being allowed to have more of 5 a role in the design and not having some flexibility. 6 I've seen seals that were blown out that 7 the ribs failed first. 8 Since the entry was six feet wider than 9 when we put the seals in, there was no doubt that the 10 ribs failed. Now, whether the seal failed first or 11 the ribs failed, I couldn't tell you, but the pieces 12 laying down in the entry that were larger than this 13 table would indicate to me that the ribs failed and 14 that when the seals started to move, it broke apart. 15 Another thing I think I've seen over the 16 years is that MSHA needs to improve their 17 communication to the district offices. One of the 18 experiences that I had is we installed seals in 19 different districts. We had different standards, 20 depending on the district, and it really had nothing 21 to do with how we were tested or oftentimes even with 22 any specific condition. 23 I have seen some seal designs used in 24 situations that were specifically mentioned by tech 25 support to not be used in. The inspection force 0111 1 somehow needs some kind of a rapid access to what was 2 approved, along with some key points. 3 And that may be what you had in mind in 4 the proposed regs where now a design is submitted to 5 tech support and then to the district manager. 6 Because many seal designs are easy to build in a 7 manner that looks like they are properly installed, 8 but if you do not know what you're looking for, 9 they're not properly installed and shouldn't be used 10 in those situations. 11 So again, the inspector force needs to be 12 thoroughly trained in all of these new designs that 13 are coming out. This is my first experience with 14 this kind of a meeting, and one thing I would like to 15 state is that I hope that when all of the regs and 16 rules come out that the discussion section is clearly 17 left out. 18 Because when you read the regs and you 19 read the discussion, you can get two different 20 interpretations, and that's the last thing we need if 21 something happens is, well, which -- what are we 22 following, on the reg or are we going to follow what 23 the interpretation of the reg says. 24 One of the things I noticed is that it 25 says that the -- 75335 now, it says seals shall be 0112 1 designed, constructed and maintained to protect 2 miners from hazards related to sealed areas. In the 3 past, the seals were always designed to protect not 4 only the active area but the sealed area. 5 As it began years ago, there was a lot 6 more explosions in the active area of the mine, and 7 one of the fears were that the active area explosions 8 would blow out the seal and get into the gob, and now 9 either cause a further explosion or release further 10 gases into the ventilation system. 11 I think this is important because up 12 until this time, engineers could not use shapes to 13 help increase the strengths of their designs. Take 14 the Grand Cooley Dam. It's shaped in an arch because 15 the water is on one side of it. 16 What these guys are forced to do is build 17 a dam, if you will, but they don't know if the water 18 is going to be on this side or the other side. So 19 with the new reg, this is an improvement, and I hope 20 that the tech support people that are reviewing these 21 designs are thinking that now we can use shapes, if 22 that was the intent of this proposed 75335 section. 23 And then finally, on the question that 24 was brought up about existing seals, I really don't 25 think that's a good idea to go around and replacing 0113 1 the existing seals unless there's evidence that they 2 are improperly installed, used in the wrong 3 situation, that there is a compelling reason. Because 4 for every non compelling reason to change a seal out, 5 I can think of the great dangers and hazards that you 6 are going to expose the crews to that have to go in 7 and replace these seals, if it's in a situation where 8 they have to knock the seals out. 9 So I would use caution there and only 10 exercise that profound action in an event that the 11 seals are suspect anyway. So to close, I think we 12 all have in mind that we have to mine coal safely. 13 The safest thing to do, strictly speaking, is just 14 not mine the coal. 15 The most dangerous thing is to mine the 16 coal and just walk away. What we have to do is 17 provide a level of safety that is practical and 18 addresses all but the most unlikely events. The 19 worst thing we can do is just try to solve the 20 political questions, and the popular perceptions. 21 And the only thing that has changed 22 really is that now it's easier to blame somebody. 23 Thanks for your time. If there's anything I can 24 clarify, please ask. 25 MS. SILVEY: Thank you, Mr. Amick. I'll start 0114 1 with my last comment first that I had in the order 2 that I had them written down here. You said that you 3 hope that in the future, the discussion section is 4 left out, and I probably would even ask my attorney 5 for some help here, but -- because you said sometimes 6 you can get two different interpretations. 7 And clearly, that's not our intent that 8 one who reads the preamble and the rule itself get 9 two different interpretations. In point of fact, the 10 intent is just the opposite, that the discussion in 11 the preamble clarifies and provides a rationale for 12 what the Agency did in the rule. 13 So in the event that you indeed have 14 gotten two different interpretations from some of the 15 five standards, 335, six, seven, eight, four, I 16 guess, four standards in the ETS, and the provisions 17 under the four standards, then I would really like 18 you to let us know that. 19 You said you were going to be providing 20 additional written comments, so I would like you to 21 let us know that because I foresee that, as we do 22 this final rule, it indeed will have the rule part of 23 it, the language part, 33567 and eight, and it will 24 also have a discussion part in the preamble. 25 With respect to your statement on the 0115 1 cost, you did say, and I think you anticipated what I 2 was going to ask you, you did say that you were going 3 to get more specific numbers, and you would get that 4 to us. 5 But you said the cost had been 25 percent 6 of total profits and maybe 15 -- 10 or 15 percent of 7 revenue. If you would, in terms of making a 8 statement that it -- if you would get us specific 9 amounts. You disagree with the amount that we had in 10 our estimate because we put in the best good faith 11 estimate that we had in terms of getting the 12 experience of our people and many times called in the 13 mining industry itself, both manufacturers and 14 operators. 15 So if you could indeed, if you have 16 different numbers, get those numbers to us. With 17 respect to the professional engineer and the 18 certification of the professional engineer, and I 19 know that our attorneys will be looking at this very 20 closely also. 21 I guess I'm speaking for them, but on 22 that issue, and a number of people have raised that. 23 I mentioned earlier, we have an additional set of 24 questions coming out, answers coming out, and they 25 are -- we got a lot of comment about, well, what do 0116 1 you want. The PE, professional engineer there, 2 looking over the construction 24/7, and I don't think 3 -- I mean I think I can say to you here, we didn't 4 anticipate that the professional engineer would be 5 looking at the construction 24/7, even in the ETS 6 that we put out, but we will be getting some 7 clarification on that issue out to everybody. Did 8 you want to add anything? 9 MS. GREEN: No, just to say, Erik Sherer 10 actually from Coal Mine Safety and Health has been 11 working on another set of Q's and A's, and actually 12 there's a question related to this issue where MSHA 13 makes that clarification. 14 MS. SILVEY: Does anybody else want to add 15 anything? Anybody else? Okay, Mr. Amick. Thank you 16 very much, but we do look forward to you following up 17 with specific comments and specific rationale for 18 suggestions you make before the record closes on 19 August 17th. 20 MR. AMICK: Thank you. 21 MS. SILVEY: Is there anybody else who wishes to 22 make a comment? Anybody else in the audience who 23 wishes -- yes, sir. 24 MR. BARKER: I'd like to make a comment. You 25 want me up here? 0117 1 MS. SILVEY: Okay. Yes. Yeah. 2 MR. BARKER: My name is Gary Barker, b-a-r-k- 3 e-r and I'm a private consultant. I just 4 have a real quick comment that is basically in the 5 form of a question. It doesn't have to be answered 6 here, but I think the question needs to be answered 7 at some point in time. 8 My question is, after a PE submits a seal 9 to MSHA, and MSHA approves the design and assigns it 10 a number, is or is not MSHA agreeing with that 11 design? 12 That's it. 13 MS. SILVEY: Okay. Thank you. Are there any 14 more comments? 15 MR. BELL: I've got one. Donald Bell, d-o-n- 16 a-l-d, b-e-l-l. I'm from West Kentucky. 17 I'm a professional engineer for the local mine there. 18 I've heard a lot of comments today about seal design 19 and certifications and things of this nature, and 20 I've also heard a lot of comments about how we can 21 make seals safer, perhaps through making them 22 stronger through the 120 psi or the 50 psi pipe 23 designs and construction. 24 At my particular mine, back in 2000, due 25 to an unfortunate incident, we had an inundation of 0118 1 water. 2 To save the majority of the mine, we 3 constructed through MSHA's approval a set of bulkhead 4 seals. These seals are some 120 feet thick. 5 I don't recall the exact number of yards 6 that we put in this set of seals, but obviously these 7 seals will not blow out. And the reason I'm bringing 8 this up, I've heard comments about the atmosphere 9 migrating out from behind a set of seals if we use 10 these new type that are proposed. 11 I can assure you, because I have been 12 there personally, the atmosphere behind these seals 13 120 feet thick, and by the way, these seals were 14 hitched into the roof, ribs and floor five feet each 15 direction. I personally looked at that and assured 16 that this was done correctly. 17 These seals still would leak atmosphere 18 because now they have approximately 55 psi of water 19 behind them. They are completely inundated which 20 they were designed to be done. Water leaks out of 21 the strata around the seals. 22 So regardless of how strong we build the 23 seal, to say that we can build it 100 percent safe to 24 where anything could be done outside that seal, is 25 not accurate. I don't think that can be done. I 0119 1 just wanted to bring that up so that MSHA would take 2 that into consideration when you're looking at these 3 seal designs. 4 Also, as we speak right now, we have a 5 set of Mitchell Barrett seals which are being inerted 6 with nitrogen gas to render the atmosphere there 7 harmless. 8 To do so, I had to go and drill down into 9 a sealed area. Again, I went through my local 10 office. 11 So now in a sealed area, which I'm 12 inerting, I have a two inch lightening rod, 331 feet 13 in the ground. According to some of the speculation 14 around the Sago disaster, lightening was transmitted 15 down a borehole. Now, I don't want Mr. -- I forgot. 16 One of the previous speakers mentioned oil wells. 17 We have several oil and gas wells in our 18 mining field as well, which the casing is still 19 intact from surface to below the coal seam. In this 20 particular case, my casing dead ends at the coal seam 21 itself. 22 Anyone familiar with electricity knows 23 lightening or electricity is going to the easiest 24 point of ground. So I would kind of like you to 25 think about those issues as well. No one can replace 0120 1 any of the tragedies that's happened. 2 No one can replace any of these loved 3 ones. 4 I've had friends that I have lost myself, 5 in particularly 1989, Pyro Mine disaster. Some of 6 you may know that one as well. So I live with it 7 daily, as many of the people in this room. 8 Unfortunately some of the ladies that 9 have lost husbands, no one can replace what they've 10 lost. 11 No amount of money can make them feel 12 better. My heart goes out to them personally. I 13 have friends that are at my operation right now that 14 I see daily. 15 Nothing could replace their loss, but 16 just like some of the other speakers that have 17 presented testimony here today, we need to be 18 realistic in what we are doing, and we don't need to 19 do something that is unrealistic from the standpoint 20 that it's just unachievable to meet the goals that we 21 would all like to achieve, which is better safety for 22 everyone. And that's my only comment. 23 MS. SILVEY: Thank you. 24 MR. SHERER: I've got a question, if you don't 25 mind. 0121 1 MR. BELL: All right. 2 MR. SHERER: Did you inject liquid nitrogen or 3 gaseous nitrogen? 4 MR. BELL: Gas nitrogen. 5 MR. SHERER: Gaseous nitrogen. May I suggest in 6 the future maybe a bigger diameter hole in a 7 nonmetallic casing. 8 MR. BELL: You can. However, sir, the company 9 that supplies the nitrogen specified to us if we used 10 any type of a plastic casing, it would shatter. 11 MR. SHERER: So it was a pressure issue? 12 MR. BELL: It was the fact that the gas -- as 13 the coal, it would just change the properties. 14 MR. SHERER: Yeah, the temperature. There are 15 fiberglass casings available, but that may be an 16 alternative. We can discuss this further in the 17 rulemaking process. If you have any specific 18 information, could you please submit it for the 19 record? 20 MR. BELL: Certainly. 21 MR. SHERER: Thank you. 22 MR. BELL: Thank you. 23 MS. SILVEY: Is there anybody else? Anybody 24 else here who wishes to comment? Having not seeing 25 anybody else who wishes to make a comment or 0122 1 presentation at this second Mine Safety and Health 2 Administration public hearing, I will now tentatively 3 draw this hearing to a close. 4 Now, you ask why do I say tentatively. 5 Because as I close it, we will remain 6 here until 1:00 o'clock. And if anybody -- a little 7 after one, and if anybody shows up after one, then we 8 will hear whatever testimony they have, but I'm going 9 to officially close it now, but before I close it, 10 I'm going to make one final comment again, and that 11 is to thank all of you for your time and attendance, 12 and quite honestly, for your attention. 13 For those of you who gave us input, who 14 made a presentation, and for those of us who did not 15 make presentations, but just the fact that you were 16 here and you showed that you have an interest in this 17 matter. 18 We will take your information with us as 19 we -- for the remainder of the public hearings and 20 back to Arlington as we develop the final rule. 21 And we will do so in the manner we've 22 heard, as I said in my opening statement, try to 23 develop a rule that's safe, effective and can be 24 appropriately implemented. And so with that in mind, 25 thanks to everybody again, and the hearing is now 0123 1 closed. 2 (Whereupon the meeting adjourned at 1:02 p.m., 3 it having been determined that no additional speakers 4 were present.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0124 1 2 CERTIFICATE OF REPORTER 3 COMMONWEALTH OF KENTUCKY AT LARGE 4 5 I do hereby certify that I reported the public hearing 6 of the Mine Safety and Health Administration on July 7 12, 2007, and that this transcript is a true record of 8 those proceedings. As witness my hand and Notarial 9 Seal this 24th day of July, 2007. 10 11 12 BARBARA J. ENNEKING, CERTIFIED VERBATIM 13 REPORTER/NOTARY 14 SUBMITTED ON: 07/25/2007 15 16 17 18 19 20 21 22 23 24 25