Public Hearing THE MINE SAFETY AND HEALTH ADMINISTRATION'S PROPOSED RULE TO ADDRESS THE RECOMMENDATION OF THE TECHNICAL STUDY PANEL ON FLAME RESISTANT CONVEYOR BELTS, FIRE PREVENTION AND DETECTION, AND THE USE OF AIR FROM THE BELT ENTRY Original _________________________________________________________ AUGUST 26, 2008 9:00 A.M. _________________________________________________________ EMBASSY SUITES SALON D CHARLESTON, WEST VIRGINIA _________________________________________________________ Dena A. Belisle Certified Court Reporter MODERATOR: PATRICIA W. SILVEY, DIRECTOR MINE SAFETY AND HEALTH ADMINISTRATION OFFICE OF STANDARDS, REGULATIONS AND VARIANCES PANEL MEMBERS Michael Hockenberry Ronald Schell William Francart Mike Kalich Matthew Ward P R O C E E D I N G S MS. SILVEY: Good morning. My name is Patricia W. Silvey. I am the Director of the Mine Safety and Health Administration’s Office of Standards, Regulations and Variances. I will be the moderator of this public hearing on MSHA’s proposed rule to address the recommendations of the Technical Study Panel or the “TSP” on flame-resistant conveyor belts, fire prevention and detection and the use of air from the belt entry. On behalf of Acting Assistant Secretary Richard E. Stickler, I would like to welcome all of you here today. Before we start today’s hearing, and as all of you know, we have just remembered the first anniversary of the remembrance of the tragic accident at Crandall Canyon where six miners lost their lives and three additional persons lost their lives trying to rescue them, including one of MSHA’s own. At this point, I would like it if I would ask if you would with me pause for a moment of silence in memory of the miners and the rescue and all of the miners who have lost their lives so far this year in America’s mines and in the mines throughout the world. So if you would, pause with me. Thank you. I would like to introduce the members of the MSHA panel who are principally responsible for drafting the proposal that is the subject of today’s hearing. To my right Ronald Schell and some of you know and remember Ron, who is now a retired MSHA employee, who agreed to come back and help us on this project and he is the team leader for the project. To his right Michael Hockenberry and he is with MSHA’s Office of Technical Support, the Approval and Certification Center. To my left William Francart. He is with MSHA’s office of Technical Support. To his left Mike Kalich. Mike is with the MSHA Office of Coal Mine, Health and Safety. And to his left Matthew Ward, who is with the Office of the Solicitor, the Division of Mine, Safety and Health. And then the back of the room Carl Lundgren, who is the economist of the project and he is in my office. This is the third of four public hearings on the proposed rule. We will hold the final hearing in Birmingham, Alabama on Thursday, the 28th of August. The comment period for the proposal ends on September 8th. MSHA must receive your comments by midnight, Eastern Daylight Savings Time on that date. You can view comments on the Agency’s website at www.msha.gov and in the back of the room we have a few copies of the proposed rule. At this point, I would like to note that we are publishing an extension of time for the request for information on smoke density and toxicity that with a companion document to this rule made and the time will be extended to comment on the request for information until September 8th, the same time as the deadline for the proposed rule. Section 11 of the Mine Improvement and New Emergency Response or the Miner Act of 2006 require that the Technical Study Panel be established. The TSP issued its report in December of 2007. This proposal is consistent with the TSP’s recommendations. Let me summarize some of the more significant provisions and issues in the proposal. The proposal would establish a new Part 14 and require that conveyor belts in underground coal mines meet the Agency’s Belt Evaluation Laboratory Test, also referred to as the “belt test”. In addition, it would revise MSHA’s quality assurance, audit and recordkeeping requirements. MSHA requests comments on the proposed five-year retention period for approval-holders to retain conveyor belt sales records. The proposal would allow applicants for approval, approval holders and those seeking extensions a one year period to gain approval of the new conveyor belt or to transition to approval of the new belt. During this period, approval holders could apply for an existing Part 18 acceptance or a new Part 14 approval. After one year, all approvals would be processed under Part 14. The Agency solicits comments on the impact of the one year transition period on manufacturers’ inventories. Under the proposal, for a period of one year mine operators could purchase conveyor belts accepted under existing Part 18 or approved under new Part 14. After one year, the operator would be required to purchase belts meeting the requirements of proposed Part 14. Under the proposal, operators would be permitted to use existing inventory until replacement is necessary. The proposal would require that miners are assigned tasks as Atmospheric Monitoring System or AMS operators be qualified before they perform these duties and that AMS operators demonstrate proficiency to MSHA inspectors. It would require existing AMS operators to become qualified. To assist operators with training programs, MSHA intends to develop a model training plan and make it available to the mining community. The proposal would require that an AMS operator’s duty be a primary responsibility. It would specify the contents of annual retraining and require AMS operators to travel underground every six months. The proposal would provide a two-month delayed effective date for operators to submit AMS training plans. The proposal would apply to all underground coal mines and require an airlock where the air pressure differential between air courses creates a static force exceeding 125 pounds on closed personnel doors along escape ways. MSHA solicits comments on other suitable pressures and on the number and cost of airlocks that would be required under this proposal. Under the proposal, operators would have a three-month period to establish airlocks. The proposal would require that the use of air from a belt entry to ventilate the working section be permitted only when evaluated and approved by the district manager in the mine ventilation plan. In the ventilation plan, the operator would have to provide information that the use of air from the belt entry affords at least the same measure of protection where belt haulage entries are not used to ventilate working sections. MSHA proposes to allow mine operators currently using air from the belt entry to ventilate working sections three months to submit a revision of the ventilation plan to the district manager. If the district manager does not approve the use of air from the belt entry to ventilate working sections, a citation would be issued for failure to have an approved plan. MSHA would not revoke the plan until completion of current mining. The Agency solicits comments on this proposed process. The proposal would establish a minimum air velocity of 50 feet per minute in mines that do not use air from the belt entry to ventilate the working section. The proposal would establish a minimum of 100 feet per minute and a maximum of 1,000 feet per minute air velocity in mines that use air from the belt entry to ventilate working sections. These proposed velocities assure that the contaminants of a fire are carried downwind to carbon monoxide sensors. Under the proposal where the velocities cannot be maintained, adjustments may be approved in the mine ventilation plan. This proposal includes a 12-month delayed effective date. The proposal would require that where miners on the working section are on a reduced respirable coal mine dust standard below 1.0 milligram per cubic meter, the average concentration of respirable dust in the belt entry must be at or below the lowest applicable respirable dust standard on that section. The Agency solicits comments on this proposal. The proposal would require that smoke sensors be installed in areas where air from the belt entry is used to ventilate working sections. It would become effective one year after the secretary has determined that smoke sensors are available to detect fires in underground coal mines, these sensors would be in addition to carbon monoxide sensors. MSHA will provide notice when the sensors are available. MSHA solicits comments on this approach to requiring smoke sensors. The proposal would establish new requirements for lifelines in underground bituminous and anthracite coal mines. It would require that lifelines in escape ways have tactile signals to identify impediments to travel, SCSR caches, personnel doors to adjacent escape ways and refuge alternatives. The proposal, which has a six-month delayed effective date, would also require standardization of all tactile signals in all underground coal mines. Under the proposal each of the signals would be distinguishable from other markings. The Agency specifically solicits comments on alternative tactile signal markings and we have taken comments on the requirement for tactile signals in the escape ways and I will discuss that at the end of my opening. I will further discuss this at the end of the opening statement. The proposal would require that the primary escape way have a higher ventilation pressure than the belt entry. Under the proposal, the operator can submit an alternative in the mine ventilation plan to protect the integrity of the primary escape way. The proposal would apply to all mines using belt haulage and would have a six-month delayed effective date. The proposal would discontinue the use of point-type heat sensors and require the use of carbon monoxide sensors for fire detection along belt conveyors in all underground coal mines. The proposal requires that all point-type heat sensors, except those used to activate fire-suppression systems, be replaced with carbon monoxide sensors within 12 months of the effective date of the final rule. MSHA is proposing that the warning level for carbon monoxide sensors be ten parts per million above the ambient level. The Agency is soliciting comments on this proposed warning level. The proposed 75.1731 would be a new requirement for belt entry and belt conveyor maintenance applicable to all underground coal mines using belt haulage. The proposed rule would require damaged rollers and other malfunctioning belt components to be immediately repaired or replaced. It would require conveyor belts to be properly aligned. It would prohibit the accumulation of noncombustible materials in the belt entry and it would require that splicing of any approved conveyor belt maintain the flame resistant properties of the belt. This proposal would include a two-month delayed effective date. MSHA has estimated the economic impact of the proposal and has included a discussion of the costs, benefits and paperwork requirements in the preamble to the proposal and in the Preliminary Regulatory Economic Analysis or the “PREA”. The PREA contains estimated supporting data on costs and benefits. The Agency is soliciting comments on the following: MSHA is considering including a specific requirement in the final rule that the operator make changes or adjustments to reduce the concentration of methane present in the belt entry as measured 200 feet out by the section loading point. At this point in the rulemaking, MSHA is considering requiring that operators take action when methane is between a range of 0.5 and 1.0 percent. MSHA is soliciting comments on the appropriateness of such a standard and on the specific level at which changes or adjustments should be made. MSHA has proposed a requirement that point-feed regulators must be equipped with a means to be remotely closed. However, the Agency has not included a requirement for providing a means for re-opening the regulator as recommended by the TSP. This is because MSHA believes that once evacuation is completed, the need for remote re-opening of the regulator will be rare. The Agency solicits comments on whether a requirement to remotely re-open the regulator should be included in the final rule, and if you believe so, the reasons why such a requirement should be included. MSHA requests comments on all proposed delayed effective dates. MSHA also requests comments on all the estimates of costs and benefits in this preamble and in the PREA and on the data and assumptions the Agency used to develop the estimates. As you address these provisions, and I always underscore this in all of the public hearings and many people have heard me say this, as you address the provisions, either in your testimony to us today or in your written comments, please be as specific as possible and include in your comments the alternatives, your suggested rationale, the safety and health benefits to miners, any technological and economic feasibility concerns and data to support your comments. The Agency will use the specific information that you submit to help evaluate the requirements in the proposal and produce a final rule that will improve safety and health for underground coal miners in a manner that is responsive to the needs and concerns of the mining public. As many of you know, this hearing will be conducted in an informal manner. Formal rules of evidence will not apply. The panel may ask questions of the witnesses and the witnesses may ask questions of the panel. MSHA will make a transcript of the hearing available on the Agency’s website within one week of the hearing, and as most of you know, time is of the essence in developing the final rule, which must be finalized by December 31, 2008. If you wish to present written statements or information today, please clearly identify your material and give it to the court reporter. We ask that everyone in attendance if you would please sign the attendance sheet. We will now begin today’s hearing and please begin by clearly stating your name and organization and spelling your name for the court reporter to ensure that we have an accurate record. Before we get to our first speaker, I said during the opening statement that I was going to comment some further about the requirement for the signals and the lifeline, and as you know, the original requirement was included in the Emergency Mining Evacuation Rule that was published December of ’06, and in that rule for all the lifelines, we asked that there be directional indicators. I’m trying to remember the wording. At that time, we did not specifically indicate what the directional indicators had to be, but we said if cones were used, the tapered end had to point in-by, if cones are used. So therefore, if you are in the lifeline, you’re going out this way. So here comes the Technical Study Panel’s recommendation and the Technical Study Panel recommended that the signals be standardized. So this proposed rule requires that cones be the directional indicators, that they be standardized in all mines, the tapered end would point in-by and the standardization would be for SCSR there would be six cones, for personnel doors four cones, for escape ways two cones and the direction to the refuge alternative or refuge chamber would be this spiral -- I don’t know exactly what we called it. We might have called it spiral something. Anyway, everybody sees it. And we said that the six, four and the two respectively would be back to back. So the two would be like so and then four and then six. So we’ve gotten comments. I bring this up and you probably say, well, why does she bring that up. I bring this up because at our very first hearing in Salt Lake City, we got comments on this, and I will say to you from an agency’s standpoint that one of the things that we believed in the Emergency Mining Evacuation Rule and we continue to believe that training is a very important element to miners’ understanding emergency escape and evacuation and training will be an important part of this rule, but, you know, some of the comments -- and obviously everybody can go to the website and see the transcript, but some of the comments we got said, just make sure -- not that people were very much in support of the directional indicators and even the standardization, but said make sure whatever we do, try to make it as simple as possible and that in an environment where the emergenciers[J1] might think the escape way and things might be smoke filled, that, you know, people could be panicking and everything. So whatever we try in the final rule, try to put on eye on simplicity. And that made think about another thing that I wanted to say before we started here and that is, and I’m going to try to remember to state it at every hearing that as an agency philosophy and I think as a mining philosophy of emergency escape and evacuation that we all continue to believe that in the events of an emergency underground, the first line of defense is for the miner to try to escape. So I wanted to underscore that that that’s the Agency’s philosophy and I think that’s a longstanding principle that the entire mining community ascribes to. I wanted to underscore that, but obviously sometimes if escape is not possible, then that’s where other things come into play. But I wanted to say that also before we started. So at this point then, now we will start today’s hearing and our first speaker is Geoff Normanton with Fenner Dunlop. Mr. Normanton. MR. NORMANTON: The spelling of my name is G-e-o-f-f-r-e-y Normanton, N-o-r-m-a-n-t-o-n. I’m Vice President of Technology of Fenner Dunlop Americans. Good Morning. Based on my previous presentations to the panel, Fenner Dunlop continues to support the move to the BELT standard. We have invested in a new test facility in our Ohio facility with testing to the BELT and friction and preparing ourselves for the move. So as far as product integrity is concerned, we’re happy with the life tests on the new products. We can recognize new and old products together and do not see any detriment to product life by the changes. Comments on smoke production toxicity, we are not carrying out quantitative measures of that yet, but from a product that has increased resistance to ignition and increased resistance to propagation, you can visually see enormous differences in the amount of smoke produced when testing to the BELT standard. So we see that as positive secondary effect of this change. One of the questions that was mentioned in the proposal was is one year adequate for the change out of product specification to BELT and we certainly see no difficulty meeting that one year change providing that the approval process is also of a quick duration. Clarification on the utilization of belt stocks already at mines was at fault, but I think it has been covered in previously hearings, so we don’t need to have any clarification and that is our comments for today. MS. SILVEY: This is probably just a point of clarification. When you say in your new BELT laboratory you visually see the difference, I assume do you mean when you say visually see the difference with respect to the smoke, you mean less smoke? MR. NORMANTON: Yes. MS. SILVEY: With respect to when you see this going on in the mines when you all go into full production, do you all have splice kits that you will be making available with yours? MR. NORMANTON: Yes, we do. MS. SILVEY: And you will be making the splice kits available? MR. NORMANTON: Yes, we will at the same time. MS. SILVEY: Okay. And the instructions for how to use them and everything? MR. NORMANTON: Yes, technical manuals and splice kits are provided currently to all our end users and so there will just an additional portion of that kit for BELT compliance. MS. SILVEY: We say in that provision, I think, in the part talking about belt maintenance, I think we said something about something to maintain the fire resistant properties of the belt. I think that’s way the wording goes. MR. NORMANTON: It does. We read that as being if a splice was tested to the BELT standard, it would also be in compliance. MS. SILVEY: That’s right. Thank you. MR. NORMANTON: Thank you. MS. SILVEY: Our next speaker is Allen Dupree with Alpha Natural Resources. Mr. Dupree. MR. DUPREE: Is it okay if Dave comes up with me? MS. SILVEY: Yes. MR. DUPREE: Good morning. My name is Allen Dupree, and that’s spelled A-l-l-e-n D-u-p-r-e-e and I’m vice president for Alpha Natural Resources and with me today is Dave Decker, D-a-v-e D-e-c-k-e-r, and he is the general manager for Brooks Run, a subsidiary of Alpha, and on behalf of both Dave and I, I would just like to thank you all for the opportunity to come in today here in Charleston and give comment on the proposed rule for utilization of belting. We have comments this morning on a couple of sections that we would appreciate if you all would take into consideration. One of those sections is in preamble under Section 74.323 regarding methane concentrations in the belt entry. In regard to the statement under 75.323 in the preamble, there are numerous layers of protection already afforded to miners through the current regulations working in both developed entries and the working sections. The current regulations recognize that methane is inherent in coal mines and provide protection from mixtures that could potentially jeopardize miners’ safety. Further lowering of these standards does not improve safety for miners. Under current regulations, miners on the working section have been successfully protected from excessive methane through duplicative and layered requirements. Section 75.323(b)(1) currently limits methane to below one percent in the intake air courses. Current Section 75.342(a)(1) requires that methane monitors be installed on mining equipment used to extract coal to give a warning at one percent methane. 75.360 requires that prior to anyone working in an area, a pre-shift exam will be done, including tests for methane will be conducted on roadways, travel ways, working sections, working places, approaches to worked out areas, and ventilation controls, high spots along intake air courses where methane is likely to accumulate and underground electrical installations. 362(a)(1) requires that an on-shift examination, including tests for methane, be conducted once during each shift on working sections. 75.362(b) requires an examination for hazardous conditions be conducted along the entire length of each belt conveyor entry during each shift that coal is produced. 75.362(d) contains stringent requirements to test for methane at the face at the start of each shift in each working place before equipment is energized; immediately before equipment is energized, taken into or operated in a working place; at 20-minute intervals during the operation of equipment and a certified person has to test for methane in the return split of air from each working section. So the numerous and duplicative requirements to test for methane provided a proven and successful method of protection for the safety of miners looking at the one percent requirement in intake air courses, in addition to all the safeguards that are in place on the working section. We feel that the belt air course should be considered an additional supply of intake air to the working section. This requirement has successfully provided protection to miners on working sections for years. Reducing the limits of methane in the belt conveyor entries to 0.5 percent provides no measurable increase in protection than what is already presented. In light of the numerous safety requirements regarding methane, the perceived benefits of this proposal do not equate to a measurable increase in safety. Additional attempts to maintain methane concentrations in the belt entry below concentrations in the primary escapeway will often create undesired pressure differentials from the belt entry to the intake air course. To maintain the difference in methane concentrations will create a juggling act on trying to balance your methane with your ventilation system and your air velocity requirements at a belt entry. The more air you put in a belt entry to dilute the methane down to .05 percent, the increase in potential hazards for dust. So it’s a give and take situation. Our position is that the requirements of the maximum allowable limits of methane for intake air courses be applied to belt air courses. This current regulation, combined with the strict methane limits and tests already in place for the working section provides a successful history and adequate protection for our nation’s miners. I’m going to move on to 75.351. We have a comment relative to required annual training outlined in (q)(1) for AMS operators. This section under 75.351(q)(2) states that at least once every six months all AMS operators must travel to all working sections to retain familiarity with underground mining systems, including haulage, ventilation, communication and escape ways. We feel that based upon the responsibilities of the AMS operator that this requirement is unnecessary for a few reasons and would eliminate some qualified and experienced persons from operating atmospheric monitoring systems. Many mines use former underground miners who are no longer physically able to travel underground to operate the atmospheric monitoring system. A requirement to go underground once every six months would eliminate these type employees from consideration for this duty, even though that they bring years of knowledge and experience to the position. The assumed benefit from this requirement weighed against the loss of experienced miners operating atmospheric monitoring systems we feel does not adequately justify the proposed requirement under (q)(2). Additionally, the responsible person is already in place as outlined in the current regulations is available to take charge and make critical decisions in addition to the AMS operator. We also have a comment on 351(q)(3) that it just requires that the training records be maintained for two years and we just respectfully make the statement that other records are required to be maintained for one year and the one year retention would permit any authorized representative from MSHA to inspect those training requirements and training records at any time. So we were really unclear on the change from the normal one year requirement to the two year requirement. We also have a comment on 75.1103-8(a). The proposed rule requires sensor and warning device systems shall be examined at least once each shift when belts are operated as part of a production shift. A functional test shall be made every seven days. Inspection and maintenance of such systems shall be by a qualified person. We just respectfully ask that this be clarified to define “examined” and “inspected” because those terms are used interchangeably and depending on who you are discussing the issue with could mean different things. And we have a question also for the panel. Does a functional test every seven days mean that each individual sensor, CO or thermal, must have CO gas or heat applied as part of the testing procedure? Presently CO systems are on a monthly schedule for testing and calibration and a weekly schedule would add a great burden as far as testing, especially at larger mines. Part B requires that a record of the functional test be maintained by the operator for a period of one year. The current regulation requires that the records of weekly inspections be maintained at the belt drive location and it is not real clear where the records of the proposed functional tests are to be located and maintained. We also have a couple of remaining comments on 75.1731(a), which is a proposed rule and requires that damaged rollers and other malfunctioning belt conveyor components must be immediately repaired or replaced. The difficult thing in reading this requirement is that it is excessively open to interpretation and the definition of the words “damaged” and “malfunctioning” could be interpreted many different ways by both industry and the enforcement personnel. It does not allude to any indication that the components are creating an unsafe condition. It also states that the subject components be immediately repaired or replaced. If one roller is damaged but not in an unsafe condition, the proposed rule still requires it to be replaced immediately even though it may be safer to do it at a later time with a two-man crew. Our question would be to the panel, why is the term “immediately replaced” associated with a requirement that does not mention any unsafe condition and any condition that would create a potential hazard? What concerns us, I guess, with the wording of the rule is that it would open a possibility of numerous inconsistent enforcement actions concerning examinations even though the examiner’s primary duties are to detect hazardous conditions. That’s what he’s looking for, but it doesn’t really go into the fact that a malfunctioning component creates a hazard. So is the examiner required to detect this as part of his examination when he’s looking for hazardous conditions? If he made an examination of the belt and one of us came by after him and detected a roller that was malfunctioned, would he be required to document that in his exam even though it may not be a hazard, I guess would be the question, since his primary duties are to look for hazardous conditions? We feel that the current 1725(a) which covers equipment in an unsafe operating condition covers this proposal and this proposed regulation is unnecessary as written. In any event, we would request that the wording be clarified to define the intent, which in its present form is not clearly defined or understood. This proposal has the distinct potential of becoming a compliance and enforcement catastrophe and currently 75.1403-5 provides safeguards to minimize hazards in belt conveyor entries. It already listed under the section under safeguards. So we would just ask that the panel consider clearly defining the term “malfunctioning”. I know there are standard definitions out there in the dictionary and the internet, but if we leave them open to interpretation and turn a lot of examiners loose and a lot of industry personnel loose and a lot of inspectors loose, they’re all going to have different definitions of what malfunctioning may mean. One last comment on 75.1731(c) requires that noncombustible materials shall not be allowed to accumulate in the belt conveyor entry. This requirement as it is written is maybe a little confusing as to the origin and intent of the requirement. It’s completely open to interpretation as far as the words “accumulation” and “noncombustible”, and if you read the regulation literally, compliance is virtually impossible as the way it’s written. Noncombustible material could include rock, belt structure and the whole intent of the wording as written is not really clear and we would just respectfully ask why the regulation was included in the proposal. If you look under, I believe it’s 75.1403-5(g), I know one of the statements in the preamble talked about stumbling and tripping hazards as a reason for not allowing accumulations of non-combustible material, but currently Section (g) under 1403-5 says a clear travel way at least 24 inches wide should be provided on both sides of the belt conveyors and we take that to mean a clear travel way clear of stumbling hazards for the safety of the examiner and anybody else walking down the belt entry way. Our fear is the way the reg is written and if we have a difficult time enough coming to grips with what accumulations of combustible materials are and we all agree that’s a hazard and we want to prevent that. What is accumulation? Is it five feet by five feet by six inches? Is it two feet by two? Everyone has got a different definition and we’re working through that. The scary thing on accumulation is the non-combustible materials. Is that two rollers that are laying over there in the crosscut, because according the regulation the way it’s written that could be interpreted that way and enforced as an accumulation of non-combustible materials and that’s a difficult thing to comply with. So we would just ask that your consideration on those regulations be taken. That’s all I have and I appreciate your time. MR. DECKER: I have one comment. MS. SILVEY: Okay. MR. DECKER: In addition to the safeguards that Allen has alluded to relative to .5 percent methane at the entry, of course, we’ll have the AMS systems as an additional safeguard. I mean that’s the sole purpose in trying to comply with the .5. Our intent, of course, is to use the belt air in the face which the methane in the belt entry happened to be .51 and you had a primary intake against the solid rim, and one way to dilute the methane is to increase more air into the belt entry. If your primary intake is .55, you’re not helping yourself any. It’s virtually impossible to dilute that air down. I just wanted to state that comment. Thank you. MS. SILVEY: Thank you. Thank you both. One of the things I wanted to say, the functional test, I think you asked about the functional test and what exactly did we mean by what would constitute a functional test. I will let one of my colleagues speak of that and on some of the other definitional terms particularly on the new proposal on belt maintenance. We have gotten comments at earlier hearings on that and some of the terms we included in there, for example, damage, what do you mean, and as you said, what’s an indication of damage, how much damage are we talking about. As a matter of fact, I don’t know whether you saw the transcript or what, but your testimony was predicative of some of what I was going to say on that. For some of terms and you alluded to it, we generally meant the dictionary definition of certain terms that we used when things were damaged, rollers I think, and certain other things in terms of when maintenance was required, but as with the comments we got earlier, we appreciate everybody’s comments and as we draft the final rule, we will try to be as clarifying as we can in terms of what type of putting people on notice -- everybody on notice as to what type of actions would be required. In terms of what you asked about the functional test, do you want to talk to him about what we expect? MR. FRANCART: The functional test, Allen, would be application of carbon monoxide to an adequate number of sensors to activate all alarms signals. Now, if you could do that with one CO sensor and come out to the belt and going into the mine, that would be adequate. If you wanted to do it during the calibrations and do maybe three sensors to activate three alarm signals, that would be adequate, too. It really would be up to the operator as long as the alarm signals are all activated. MS. SILVEY: Was that clarifying for you? MR. DUPREE: We did have a question on the inspected and examined interchange of words as well. MS. SILVEY: Okay. We got comments on that, too, so we will be looking -- MR. DUPREE: Thank you. MS. SILVEY: When I gave my general statement about that, we would be looking at all the comments and testimony that we had gotten relative to a word that we used. I think I still go back to the comment I made. I don’t know what hearing it was. It may have been one in Lexington where I said that we were looking at sometimes the general dictionary and common sense meaning of the term, but, you know, everybody’s comments are well taken and in terms of trying to be as clarifying as possible so everybody is on notice as to what action is expected, being we will look at all of the wording that we used and try to respond to it. MR. DUPREE: I would just say we appreciate your time. I’m sure that writing a proposed rule is really difficult and challenging and we appreciate those efforts. 75.400 has probably been the toughest rule to enforce and also to comply with because when we talk about the single word “accumulation”, that is the toughest word to define and get consistency on and that’s been worked out through litigation over and over again and we would just ask that, you know, whether it’s an accumulation on combustible materials, what kind of are we looking at and the more we can specify things, the better, and if we have malfunctioning or damaged components, if they would create an unsafe condition, then we could understand how the examiner would detect those and document them and get it fixed, but if it doesn’t create an unsafe condition, as he required to record those as hazards and if a roller is making a little bit of noise, is that a damaged roller, because you can’t walk a belt line without one roller making noise. So the thing that scares us the most is the interpretation. But we do thank you for your time. MS. SILVEY: Okay. Thank you all. Our next speaker is Jim Weeks with United Mine Workers of America. MR. WEEKS: Good morning. My name is Jim Weeks. I’m an industrial hygienist consultant to the United Mine Workers of America. I was also a member of the Technical Study Panel that developed a long list of recommendations and I must say the Agency is moving at lightning speed considering that the panel report was made less than a year ago under the proposed rule, but then there was a congressional deadline, also. So anyway, we welcome the change. I would like to focus on two sets of recommendations made by the study panel and then make some comments about some specific events. The first set of recommendations is that MHSA adopt the B.E.L.T. test, and second, the recommendation that and I’m quoting here “use of belt air for face ventilation be held to a higher standard.” I’m trying to flush that out. I’m trying to describe exactly what that means. In my opinion, the existing MSHA rule on the belt air did not meet the requirements of the Mine Act because use of the belt entry for face ventilation is inherently less safe than not using it for that purpose. Since fires occur more often in the belt entries than in other entries, using a belt entry for face ventilation allows the products of combustion to go directly to the face and it also contaminates the entry itself. The introduction of the atmospheric monitoring system helps to detect fires and it’s dependent on miner operators to take appropriate steps to control fires, but it is safer to actually prevent fires and to prevent products from combustion from contaminating working places than it is to rely upon detection and control. The existing MSHA rule uses neither of these strategies, that is the strategy of either preventing products of combustion from going to the face or preventing products from occurring in the first place and it’s in light of these deficiencies that the panel made -- well, we made some 20 recommendations and I wanted to focus on those, on at least three of them. First, let me talk about the B.E.L.T. test and I think it’s important to give some historical background to this recommendation. Conveyor belts are a relatively common source of fires. Fifteen to 20 percent of all reported fires are belt fires. It’s important here to keep in mind that a reported fire under the Part 50 rules is one that lasts at least 30 minutes, and because of that particular requirement, the number of unreported fires that last less than 30 minutes is essentially unknown. At least it’s not in the data system and it’s most likely much larger than the number of actually reported fires. So the problem actually is pretty much larger then is apparent from existing data. Now, following numerous petitions for modifications from mine operators who sought permission to use belt air, MSHA promulgated its ruling and MSHA’s response to the problem was to require operators to use the atmospheric monitoring system. This is based on the assumption that once detected the mine operator would take the necessary steps to control the fire. Now, as we learned from the Aracoma fire, this assumption that mine operators would do the right thing is not always a valid assumption. I think the delay in taking action after the Aracoma fire was detected that lead to the tragedies at that particular situation. So in this respect, the MSHA rule is not as protective as the outlying prohibition on the using of belt air as required by the Mine Act. MSHA could have taken steps to prevent fires in addition to the rule to detect and control them. Now, from 1970 to 1999 there were about 140 fires. Every one of those fires occurred with conveyor belt material that had been approved by MSHA at that point as flame resistant by using the so-called 2G test. The one thing we expect from testing materials for flammability is that it not burn and by this measure the 2G test was a failure and is clearly a failure. It was actually developed by the Bureau of Mines in 1955. Its shortcomings were recognized in 1967 or so and consequently the Bureau of Mines and later NIOSH, often with MSHA’s participation, developed this new test protocol, the so-called belt evaluation laboratory test, the B.E.L.T. test. This test is more rigorous, it is more in line with international standards and it more closely replicated actual in-mine conditions. It was clearly a better test. A detailed description was published in, I think, 1987, MSHA proposed to adopt it in ’92, determined it was feasible in ’99 and withdrew the proposal in 2002. So we’ve been down this road before on this particular test. MSHA gave us its rationale for removing the proposal when the frequency of belt fires had decreased and it’s true that the number of belt fires have decreased, but so also have the number of the mines, and that the number of belt fires per 1,000 mines actually had not decreased at all, so that the need for the test protocol remains. The panel that I was on endorsed this test. We were not the first to endorse it. The belt entry ventilation review of the internal committee, MSHA endorsed this test. The belt advisory committee recommended that MSHA adopt this test and so the Technical Study Panel was hardly breaking new ground in recommending that you adopt this test, also, and what this test adds is it fixes one of the deficiencies in the existing rule and that is it takes steps to actually prevent fires rather than merely detecting it and that is one of its greatest strengths. So we welcome your adoption of the test and you’ve got the support of the three committees and dozens of others and so I anticipate that it will move in fairly quickly. In addition to the belt test, we also supported what was called the drum friction test. Frankly, the recommendation of the committee, if you look at it, if you read it carefully, it’s a classic example of how committees can mangle the English language. So it’s a bit obscure. I think that what you propose is to basically study the development of a drum friction test is an appropriate response to this. What the drum friction test does is it corrects another deficiency of the existing rule and the belt test only examines -- only looks at the question of flame propagation. It assumes the belt is already ignited. It doesn’t address the question of whether or not the belt can be ignited, and one of the most common sources of the ignition is friction, either rubbing against a structure, a broken roller or a variety of other ways in which that friction can occur. So it’s entirely appropriate to test the belt against that particular source of ignition and that is a unique feature of this test. It addresses the question of whether or not the belt can ignite, let alone whether the flame can propagate. So I think it’s an appropriate test and an important test for you all to develop and adopt. It’s used in a variety of other countries around the world and that we can obviously learn from the experience of those other countries. Now, the other recommendation of the committee, again somewhat vague unfortunately, is that the mines that use belt air be held to a higher standard. What exactly does this mean? And just some language from the report that’s appropriate. The report says that belt air is sound in some situations. That implies that there is some situations in which it is not sound and I think it’s incumbent upon the Agency in approving the request of use of belt air that the Agency identify what those situations are. We received a number of petitions for modification on the committee and typically what these petitions were was essentially boilerplate. It said we want to use belt air. We’re going to do the following things. We’ll install an AMS system and so on, period. That was it. It never -- they rarely took the position of saying this is a problem that we have. This is why belt air is the solution. What we identified in the committee and in the study panel was that there are some circumstances in which belt air is appropriate and we visited mines in Utah and we visited mines in Alabama and the two situations we’ve identified, one had to do with ground control where in very deep mines such as in the west there are significant ground control problems because of the deep cover and that one way of alleviating -- as I understand, one way of alleviating some of those ground control problems is to reduce the number of entries, and if you have an entry that’s a belt entry, you use that belt entry for additional ventilation and you don’t have to go to another entry so that having a belt entry is essentially running two entry systems and is done in the west is one of many procedures that operators use to improve their ground control problems, and in that situation using belt air seems to us made sense. Now, you referred to Crandall Canyon earlier. Clearly, ground control in deep mines is a complex problem and this is hardly the solution to ground control, but it is something that would help to alleviate ground control problems, at least as we understood it in those mines, and it that situation, it seemed to be appropriate that the trade-off between allowing combustion materials to go to the face on the one hand with ground control on the other so there wasn’t methane. The second situation had to do with very gassy mines which we visited in Alabama and there the operators need to get as much air into the face as possible to dilute the gas and carry it away and that the belt entry was a useful means of getting additional air on the face and removing gas. Again, like ground control, gas control this is not the means of controlling gas, but it’s something that helps to alleviate the problem. And in both those situations, both those kinds of situations belt air was an appropriate -- it seemed to us to be an appropriate way to deal with those particular problems, but what we saw was mine operators coming along saying we want to use belt air period. It did not identify any problems, it didn’t say what issues they were going to solve and it didn’t say why they wanted to use belt air. There was no explanation at all as to why that was the case. In holding operators to a higher standard means that the trade-off has to be explained. It’s not just an automatic approval that’s given. Let me read to you a paragraph from the report. It is not the recommendation, but the discussion of the recommendation and, of course, it’s a fairly lengthy paragraph. The mines outside of these two categories, that is, mines with ground control problems and gas control problems -- the mines outside of these two categories is not always obvious that belt air should be used. The reason for this conclusion is very simple. The use of belt air in the working section allows combustion products, fires or explosions in the belt area to reach the working section. If using belt air in the working section does not reduce or eliminate other conditions deemed to be more hazardous, there is no justification for using belt air in the working section. The Technical Study Panel therefore suggests that the process for granting permission to use belt air in the working section become part of the ventilation plan or the overall mining plan as part of the ventilation plan review. In addition, the panel recommends that the MSHA district manager be charged with the responsibility of carefully scrutinizing each plan for using belt air in the working section and denying those that do not have evidence of a safer mining environment than not using belt air on the face. In addition, the panel recommends that the district manager be charged with delivering a decision within six months. So that’s what it means to hold mines to a higher standard. There has to be this -- it’s not a routine way of doing business. It solves problems and it can solve -- and particularly it can solve a couple of problems. In this respect, the panel did not give a blanket endorsement for using belt air. That is important that you recognize that. And I described, we looked at these petitions for modifications and discovered what was missing and I didn’t see any provision for that in your proposal. I don’t know how -- frankly, I don’t quite know how it could work itself in there other than through some kind of a policy statement, but with that kind of a trade-off, I think is quite important. Otherwise, it’s using an inferior practice and an unsafe practice for ventilating the mines. Now, I’d like to go on and make a few comments about some of the specifics of this proposal. First on the question of the AMS operator and what that person’s responsibility is, one of the things that we encountered was that people that operated the AMS system were doing lots of other things. Some of them were related to safety and health and many of them were not. I think one of the most bizarre examples that some AMS operators were asked to call out for pizza, which is not a terribly good use of their time, and we went back and forth frankly among the committee saying “Well, the AMS operator should only operate the AMS system and nothing else.” I’m not sure that’s practical. It’s rather like the task as described an anesthesiologist in surgery, you have, you know, 99 percent boredom and one percent sheer terror as to what’s going on with the patient and that’s the same thing with the mine. Most of the time the mine is operating properly and then there’s a time when you have to pay attention and respond immediately. So I’m not sure that it’s realistic to expect the AMS operator to only operate the AMS system, but what we did say is that whatever that person does in addition to the AMS operator operating the AMS system, it should be related to health and safety. It shouldn’t be related to something else that’s unrelated, overtime, pizza, whatever, and the way that the proposed rule is written, it allows for that to occur. You say that the primary responsibility of the AMS operator should be operating the system and I think that that should be clarified to say that it should be operating the system and other health and safety tasks and not whatever happens to come along down the road. Another matter about the training for the AMS operator, again, the committee went back and forth on would it be better to have someone that’s familiar with the mine trained to operate this computer display system or would it be better to have someone who is familiar with computer displays become familiar with the mine and there were different schools of thought on that one way or the other. We finally decided it really didn’t make a whole lot of difference one way or the other. What was important was that the person that operated the system know what’s going on underground. It can be a blip on the screen and it means nothing and you could read a 30 as an 80 easily and it’s very useful to have that person familiar with, you know, what does this situation look like underground, go down to talk to people, to visit people, see what’s there and so on so that what comes up on the screen is connected to reality and that’s why we recommended that that person go underground every six months or something like that. All but one of the AMS operators that we met were not miners and really had never been underground and didn’t know what was down there and we thought that was improper that they ought to have some connection with what’s going on underground. That’s the aim so that what comes up on the screen can be connected to some kind of reality. Another issue, in the preamble MSHA stated that if a mine operator reduces the air velocity from a belt entry, the concentration of dust in the belt entry could be decreased because of reduced scouring which is technically true, but scouring is not the principal of source of dust in the belt entries, at least as we learned. The principal source of dust in belt entries comes from things like transfer points or dump points or things of that sort, and if you reduce air velocity in a belt entry and the dust comes from the transfer point, actually the concentration would go up. In addition, what’s important is what’s the dust concentration in the working section and if you reduce the air in a belt entry and the dust concentration in the belt entry is less than what it is from other sources, then the air concentration in the face will actually go up also. So I don’t think you should leave that in the preamble. Somebody might come along and say, well, if we reduce the air velocity in the belt entry, the dust concentration would be decreased, but I don’t think that’s always the case. I could go through a tedious explanation as to why that’s the case, but I don’t want to bother you with that right now. The other matter concerning dust in the belt entry, there are two issues here; one is the dust in that entry should be -- the language that would be better would be the dust concentration should be as low as feasible and in no sense greater than one milligram. Frankly, I don’t think one milligram is adequate. I think half a milligram would be better and I think it’s totally feasible to reduce dust in the belt entry to below half a milligram. The point is we want to get any air that’s used on the face to reduce dust and should be as dust free as possible and if it was a one milligram limit it’s not something that allows operators to operate up to that limit with that. The dust level should be as low as feasible. The other matter is that the dust measurement on the belt entry is indicated as an eight-hour time weighted average. That’s the same way it’s done elsewhere in the mine. This is an inadequate protection for miners’ health because people work longer shifts these days and sooner or later you’re going to have to start -- we’re going to have to take and regulate dust exposure levels for these longer shifts so that the better language would be to say an eight-hour time weighted average or its equivalent for longer shifts such as ten or 12 hour shifts or something of that sort. This is the larger issue I understand than just dust control in belt entries, but it’s an issue that MSHA’s going to have to deal with sooner or later. Another issue I welcome your discussion on the directional cones. I think they’re needed. In my opinion -- I disagree with members of the committee on this issue. In my opinion having one cone or six or two or whatever is too complicated and especially if you’re in a -- if an entry is filled with smoke and people are quite concerned about getting out and so on and so forth, there could be damage to anything, so that, you know, two cones indicating that there was an entry over there, but that entry could be damaged, you don’t know until you get over there, I think it should be simpler than what you have described. But the key here is coming up with an adequate system that works. I really think you need to talk to working miners. They’re the ones that are going to use it, their lives could depend on it and I think their instincts and their input in this is critical. One other matter: On splice kits, I don’t know whether your proposed rule proposes to test splice kits using the belt test. It should. I don’t think it’s automatic that splice kits would be flame resistant and they should be tested using a belt test and subject to the testing approval along with the belt themselves. And finally on the issue of damage to rollers, to malfunctioning rollers, I think the issue that we were concerned with on the committee is that a damaged roller is one that either has already or could seize or freeze up and cause a point of friction of heating. That’s the issue. And whether they’re making noise is an indicator that it might seize, I don’t know. You’d have to talk to some experienced miners about that whether noise is an indicator that it might seize up or not. I think that’s the issue there with damaged rollers is our concern. Now, I’ll be submitting some -- I’ll be going through in some more detail in written comments that are due on the 8th and if you have any questions, I’d be glad to try and respond. MS. SILVEY: Thank you. Before I get into one of them and we appreciate your comments, one of the things I will start with I guess was next to the last one on your comment about, as you noted at the end of my opening statement, I talked about the indicators, the directional indicators and the cones and we, at some earlier hearing, one of the things I did was I asked particularly if we could get before the record closes input from miners on, you know, their feelings about the proposal and how they felt they would react to the proposal even being given good and constant training, because the way we proposed it, we said that the training could be integrated, if the mine operator wanted to do that, into the emergency mine evacuation training. Well, it would be a part of that, it would be. So even with the most excellent training, we did want input as to whether people thought that the way we had the proposal structured would -- because you want it at a certain point where in the case of an emergency and your response comes, you just know what you’re going to do sort of and you don’t have to think too much about it. So we did ask and I would reiterate that again today if we could get input from miners if at all possible on that provision. On one of the things, and this is just a point of clarification to everybody, when you started out talking about fires underground and I know you recall this in the emergency mine evacuation rule, we changed the time period for reporting of fires underground, not on the surface 30 minutes, but underground it was changed to ten minutes. MR. WEEKS: I’m aware of that and I think it should have been zero. MS. SILVEY: Well, I mean, but you said -- MR. WEEKS: No, I understand. What I was talking about was the data from the 1972. All of that data is for 30 minutes. MS. SILVEY: Right. That’s right, but we changed that to ten minutes for reporting fires underground. We appreciate the comment you made on the damaged rolls in terms of the intent. I just have really just one more comment and I guess the only comment that I would say is that on your comment with respect to the use of air in the belt entry, one of the things we tried to do in the proposal was to look not just at the recommendation itself, but also to look at the discussion of the Technical Study Panel and like you said and I don’t disagree with you that oftentimes when you get a committee, you know, I mean everybody in this room sort of knows what it is when a committee is working together and you have to -- and the goal is to come up with something together. So what we try to do is look at the recommendation of the Technical Study Panel and also look at the discussion and try to put the two together as best we could in terms of the committee’s intent and as best we could in terms of reflecting that in the preamble in terms of what the Agency’s proposed requirement would therefore be. So we try to do that, and as we go forward, you know, we’ll just take into consideration comments from people and try to do the best we can in the final rule. MR. WEEKS: Well, when I was referring to the recommendation that the operators that used belt air be “held to a higher standard”, I thought this is hopeless language here, you know, so I think you should do that, you should love your mother, et cetera, and so what exactly you meant by that and when I looked at it and I thought it was in the discussion and it was, it was there very clearly in the discussion, and one of the things the committee explicitly did not do was try to ask the question is the use of belt air to ventilate a working face is that a safe practice. We took that question and just put it off the table and said, you know, unless you talk about the context, then how that’s going to be applied, it’s a meaningless question to ask and we ended up saying “hold it to a higher standard” and specifically that when the district manager approves it or not a mine plan, mine ventilation plan, there has to be some -- what we were recommending is that there be an evaluation of is the mine better off and safer after the use of belt air than not and it was frank recognition that using belt air was inherently not a safe practice because it allows combustion product to go to the face and the AMS system does absolutely nothing to stop that from happening. In fact, it depends on smoke going to the face in order for the AMS system to operate and it also depends on the operator to do the right thing if that occurs and we saw in the Aracoma fire that frankly that just did not happen. That’s not what the operator did. So that being the case, that if you’re going to use this kind of way to ventilate the mine, it has to be a solution to some other problem that’s there and that’s tangible and that the operator has to talk about in their plan. That’s what I think that means and that when the district manager evaluates ventilation plans, he’s got to have some criteria and those criteria can’t be simply stated, you know. They are not met by simply saying, well, it’s safer or it’s safe to do it this way. I mean these systems went up before the court said, sure, the MSHA rule is safe, and that being the case, they could say, well, it’s safe to do it this way and I think we as a committee we’re saying that’s simply not adequate that the operator has to make the case as to why it’s safer and what problem using belt air solves in order to go ahead and use it, in order for the MSHA or the Agency to approve it. It’s not, you know, boilerplate, You know, looking at the petitions for modification was an in lightning procedure because miners didn’t do that. They just said this is what we’re going to do. We going to use belt air and we’re going to put in an AMS system and MSHA said, okay, go ahead and do it, and what the committee ended up saying is that that’s not an adequate procedure, that doesn’t result in a safe environment. Let me ask the panel this. Are you going to develop some criteria to give district managers when they approve these plans, the ventilation plans to use belt air? MS. SILVEY: We most likely will. MR. WEEKS: You know, I think the gist of my testimony is that maybe give them some instruction as to what to evaluate, what to look for in a mine operator’s plan in order to approve or not approve their request. MS. SILVEY: Yeah, I’m not saying here today what we’re going do. I mean that’s internal MSHA. So I don’t want somebody to run out and write it and say that Silvey said that they will develop. What I will say to you from my many years of working at MSHA that we most likely will. I still will stick by my first statement that we most likely will develop criteria. MR. WEEKS: Well, the gist of the committee report is that you include that kind of consideration that they be “held to a higher standard” and when somebody says what are you talking about, you can answer that question. MS. SILVEY: Okay. Thank you. MR. WEEKS: Well, thanks for allowing me too much time. I should also recognize that there are members of this panel that were very helpful in the committees and we appreciate their work. MS. SILVEY: We thank you. We do, we appreciate it, too. Thank you. Our next speaker is Dennis O’Dell, United Mine Workers. Mr. O’Dell. MR. O’DELL: My name is Dennis O’Dell, D-e-n-n-i-s O-D-e-l-l. I’m the administrator of Occupational Health and Safety for the United Mine Workers. I have 31 years experience in the mining industry and 20 years as an underground coal miner. The rest of it is as a safety rep for the United Mine Workers, the last three being the administrator. I’d like to offer a few comments this morning. We’re still looking at the rule and we’re still putting together a lot of our thoughts as to how we’re going to approach to offer comments on the rule, but I’d like to address some of them this morning and then before the rule ends, we’ll offer written comments. I’ll start out with the proposed Section 14.1. I’m sorry, 14.3, and it addresses the testing and evaluation of belts. The union would like to point out that it’s the miners that have the most at risk since they will be exposed to these belts on a day-to-day basis, and historically it’s been miners, not MSHA or not the representative of companies or not the manufacturers who die as a result of belt problems or who become injured as a result of problems that occur on these belts. The rule suggests that because of proprietary protection that the miners cannot participate during the time of the testing and I think that there’s ways to get around that. I think that miners should be given the opportunity to be there while testing takes place. I think it would be beneficial to everybody. I think the manufacturers of the belt themselves can talk to the miners who work on belts to get some ideas on how to improve their products. I think that they could suggest things on how the testing takes place. It’s not always a scientist or the academia person that does the testing that’s the smartest when these kinds of tests are conducted. It’s usually the guy that’s underground that’s around it that has the most practical approach that can offer some help that would be beneficial to everybody and I can’t understand why we would cut that portion of the process out. So I would suggest that miners be allowed to present during this time. On 14.4(b)(4), the union would like for MSHA to explain how the practice would be acceptable. I think I understand the scenario that you said on having tested a low number of ply belts and a high number of ply belts from the same manufacturer with everything being the same. As an example that was given that you may approve a belt with a number of plies somewhere in between and that somewhat makes sense, but it doesn’t always -- it’s not always true and accurate. You should keep in mind that the number of plies is a huge determining factor on how a particular belt will function in a coal mine. For example, if a belt gets hung up in belt drive with the drive roller spinning, the belt would become hot, it would smoke and they melt and they burn and the thickness of the belt and the number of plies is going to determine how quick the belt will melt, burn or separate. Because of this, rather than just take the easy way out and pass and rubber stamp something that may in between the high and low number, why not take the time to take the safe approach and test all belt products regardless. That way there’s no question. There’s nothing left unturned. Under proposed 14.7(d), maintain the sales records for five years, the union would insist that the sales records be kept as long as the belt is in use whether it be at the operation it was originally purchased or at other locations. I think most of us know that a belt may sit at a belt operation in a shop or a warehouse or supply yard for a period longer than five years sometimes before installing them and so to keep the record straight, the union will insist that MSHA should mandate and enforce that all sales records follow the belt from the time of purchase to its grave. In the event that one operator will transfer the used belt to another operator and that goes on a lot of times -- large operators will take a belt out of a coal mine, a used belt and they will sell it to a smaller operator. I think that sales record should follow that belt regardless of where it goes. The original purchase or sales record should be transferred with that belt and made a part of MSHA’s recordkeeping provisions. Under proposed 14.10, the union would like to add that these reports be provided to the representative of the miners and that the operator be required to post a copy on the mine bulletin board to be made available for all interested parties. Under proposed 14.10(b), the union would insist that the representative of the miners be given the same opportunity to be present during the testing and audit that is given by the Agency. Proposed 14.10(c), because of the fact that defects can place miners at risk, the union would insist that a proper notice of the findings of these audits be made available to all interested parties, including the miners’ representative and that wasn’t addressed in the proposed rules. Proposed 14.11(d), the union would agree with the statement knowing that from time to time tested products may eventually fail or need to be recalled. We’ve seen that story, you know, in the industry. Because there are numerous members of the mining community who still do not have access to the web, the union would insist that as well as the web, other means be utilized for the purposes of sending those notifications out to the public. You know, it’s a nice benefit and most people have access to the computers and webs, but still, you know, some of the older miners don’t use the web. They stay away from them for whatever reasons and they should be notified as well as to what’s going on. So I don’t think we should totally rely on all communications from this point be posted on the MSHA website. We should send out written notification to the community. Under proposed 75.11.08, this allows for a period of one year a miner operator has the option of using conveyor belts which have been accepted under existing Part 18 or have been approved under new Part 14. First of all, from a personal experience of my own, it’s our hopes that -- I’m not even sure that these belts are still being used in the mines or not, but to mention about PVC belts and other plastic belts that have been previously approved under the existing Part 18, we believe those should be banned from use and removed as an acceptable conveyor belt under this process. Many miners have been taken to the hospital as a result of poisonous smoke fumes produced from these types of belts. When these types of belts get overheated and smoke, they produce some poisonous gases. Some operators have already discontinued them and I know from personal experience. We used a plastic belt when I was in the mine. We had a problem when it got hot and smoked, we had miners go down. I worked on a belt pretty close to ten years. I personally have been exposed to these fumes, so I hope that we look at what has already been approved and re-evaluate those as well and decide whether some of those should be re-entered into the mining industry simply because of the health hazards that exist. The union would ask for clarification on the one-year option period. During this one year, there’s nothing written in the proposal to prohibit mine operators from purchasing and stockpiling enough belt from a manufacturer to last them for a number of years to follow. Therefore, not having to supply our tech[J2] miners indefinitely with much safer improved belts, the union would like to see and insist that upon effective date of the rule if this rule moves forward and is adopted that any purchases made from that day forward would have to be approved and comply with the new Part 14. The operator should only be permitted to use existing belts that they have already that’s been approved, that we find is safe, that they’ve already purchased that’s in stock until the necessary replacements -- until it’s necessary to replace those belts. Under proposed 75.160[J3](a), the union insists that these training classes should not be included in the already Part 48 annual retraining classes and I don’t think that’s your intent. I think the training is going to be separate, but I don’t know that it’s clarified. We believe that that training should be separate and a distinct training class for the purposes of training the AMS operators on his or her duties. The operator should also be required to furnish to the representative of the miners a copy of the training plan 14 days prior to the submission to the district manager. That way our guys will be able to offer written comments from the miners’ reps directly to the district manager for consideration prior to approving the plan. A copy of the approved plan should also be required to be posted on the mine board for access to all parties. Proposed 75.333(c)(4) on the ventilation control proposal, the union agrees with the panel’s recommendation on this item. The airlock should not exceed 1,000 feet distances between each one. These airlocks should also be placed so that miners have access to them along the entire fresh air escape way until they can safely reach the outside. Proposed 75.350(a)(2), the union would insist that prior to an approval being granted for such a request, an underground investigation is to be conducted to validate the need. MSHA will need to ensure that there is -- that there will be full participation during an investigation by all interested parties, including the representative of the miners. The information should be sent to the assistant secretary for review before approval is granted. The UMWA has often argued that the safest method for controlling hazards associated with the belt entry is to have it isolated from all other entries. Our position has not changed on that. However, the Agency has approved mining plans that allow for multiple entries in common with the conveyor belt entry and because of that, the union believes carbon monoxide monitors and smoke detectors should be required in each of these entries at intervals no greater than those in the conveyor belt entry. Entries in common with the conveyor belt entry should be deemed as part of the coal hauling system and protections should be applied as if they were. Under the proposed 75.350, again the union has always gone on record saying that the use of belt air to ventilate the working section should be banned. That’s always been our position and it hasn’t changed, but since it’s apparent that that’s probably not going to happen, the union offers a comment as to the approval process. These plans should require approval from MSHA headquarters in Arlington, Virginia by the assistant secretary. Upon implementation, all existing plans currently in use should be immediately re-evaluated by the assistant secretary to determine if it is necessary to continue the use of belt air as prescribed under the new criteria. The union would request that MSHA’s comments on revocation would not be effective until completion of the current mining. We believe that this process should be immediate. If the operator still refuses to comply, we would go on record to say that the Agency should pull the operator’s mining permits and place the mine under a closure order. The union would like for the Agency to explain the section under that proposal where MSHA would allow a three-month length of time for the mine operators to submit a revision of the ventilation plans to the district manager. I’m not sure how the agency came up with this time period and why you feel it’s necessary to give them a quarter of a year for an operator to comply. Under proposal 75.350(b)(3), the union agrees with the panel’s recommendations made on the reduced levels of the coal dust standard to be put in place on current exposures on beltlines and working sections where belt air is to be utilized. The union would also like to encourage and insist that MSHA be aggressive in using their authority to revoke operator plans where compliance is not met. The union further goes on record to put MSHA on notice that this tool must be applied to all mines large and small. Too often in the past MSHA has only gone after the larger operations and turned a blind eye to some of the smaller operations. This must be applied fair and equal across the board. Before the district manager approves any plans, the assistant secretary in Arlington, Virginia and the miners’ rep should have ample time to review and make comments or changes before the approval is made. Proposed 75.350(b)(7) and (b)(8), the union for the most part agrees with the panel’s recommendations on this section. The union would discourage MSHA from allowing the district managers the discretion to approve exceptions to the minimum and maximum velocities without first having an in depth review by MSHA’s headquarters in Arlington, Virginia. Because of the inconsistencies of the manner in which policies have been applied by MSHA district managers in the past, these plans should require final approval from MSHA headquarters in Arlington by the assistant secretary. This is the only way the plans would have the same level of protection and be consistent in all MSHA districts. Again, miners’ reps should be included in this process and all information made available prior to the final approval allowing miners the proper time to allow them to provide input. On proposed 350(d)(1) and (d)(7), the union has historically again opposed the use of point feeding and continuously takes the position that this practice should not be allowed. We would like to point out that MSHA also had suggested the use of point feeding air in the primary escape way to the belt entry designated as an alternative escape way can present significant problems for miners who must evacuate the mine due to a fire in a primary escape way. The union would like further clarification on MSHA’s suggestion to allow a requirement that would allow a means to remotely open the regulator from a designated surface location and closing and reopening a regulator during a fire on the primary escape way. Closure of a regulator can reduce the intake air quality on a working section and may cause sudden and rapid increases in methane concentrations and could lead to an ignition, an explosion or spread the fire and smoke into areas where miners may not have been fully evacuated. Sadly during the Sago investigation we witnessed this. Air changes were made. Air was put up on the miners that shouldn’t have been put up on there. This was done without any thinking that it would work, but it backfired. This type of air change should be left only up to a qualified mine rescue personnel and the representatives and only after MSHA and only after a full evacuation of the mine has taken place and under close evaluation and approval by the Agency. We will be offering further comments on this portion in writing as well. Section 75.351(b), the union strongly disagrees with the provision of allowing the AMS operator to perform any other duties during the time that an actual emergency situation may be taking place. During a Jim Walter’s Resource Mine Number 5 accident investigation that took place in 2001, we witnessed a catastrophic chain of events of mishaps and failures that took place when a communication person who was also assigned to monitor the AMS system, a complete failure and breakdown occurred. During this period of time when this individual was required to make and receive phone calls from underground and outside personnel, he became distracted to the point that he silenced the system warnings of the AMS system and the whole thing just became a complete cluster and it’s something that we need to improve and something we do need to fix. Hopefully with the additional training that we talk about in the proposal, these issues could be addressed. We would agree that during the normal day-to-day operations, an individual such as a dispatcher or a communication person can monitor the AMS system while performing his or her regular assigned duties, but once an actual situation occurs, it could cause this individual to perform the tasks associated with a mine disaster and there should be another responsible person assigned and readily available that can step in to help share the workload necessary to safely evacuate the miners and to help notify and to help secure the mine. Under proposed 75.351(e) and 1(iii), the union would support this if this can be proven at the mine site with miners’ representatives present. This would be to show that the data MSHA as supplied is accurate and works consistently with the mine’s ventilation system at that mine. A ventilation survey should be conducted with a miner representative present to ensure that this will offer the added protection as suggested under this proposal. Under 75.351(e)(1)(iv), the union supports this proposal. These sensors should also be included in the pre-shift exam as a requirement of a visual examination that they are in place as required by the plan. A normal functional exam that is currently required by the regulation should also apply. Proposal 75.351(e)(2), the union supports this proposal. It’s been our experience that CO sensors do not always detect smoke and that this added protection of smoke sensors would help detect a fire in the earlier stages thus allowing a quicker response to extinguish a fire, if necessary. Proposed 75.351(e)(2)(i), the union supports this proposal. Proposed 75.351(e)(2)(ii), the union supports this proposal. Proposed 75.351(e)(2)(iv), the union believes that this is just another attempt to further delay protections that could save miners’ lives. Testing of smoke detectors have been taking place in the mines since the 90’s. When I was a miner, we looked at smoke detectors and I can’t believe that that we didn’t learn anything from 1990 to currently today. There has to be information out there that approves that smoke detectors can work. As a matter of fact, we use them in some mines today. I just don’t think it’s -- if we need to reinvent the wheel on something that’s been taking place for a number of years prior to this rule, rather than MSHA waiting for a year to determine whether additional rulemaking is required, we would think that it would make sense that smoke detectors be mandated under this rule and placed throughout the mines and immediately effective upon approval of such systems. Section 75.351(q), the union supports this proposal. The training again needs to be separate from the already overburdened annual training that takes places. These training records should also be made available to all interested parties. Proposed 75.351(q)(t[J4]), we support this proposal. Proposed 75.351(q)(3), we support this proposal and we’re still looking at other portions of the rules to make comments. I’d like to have a frank discussion at this point, if I may. I worked as a member of the belt crew for a number of years as a miner. Probably close to ten years I worked on a belt crew and probably another three or four years as a belt cleaner, so I don’t know if it was because of my union activities that they put me on a beltline to just get rid of me and forget about me, but for whatever reason I spent a lot of time on the belt. These beltlines, and I worked for a reputable company who tried to do the right thing and tried to keep the line as clean as possible, but beltlines are probably the most problematic areas of the coal mines. You know, coal dust, lack of ventilation, you have spillage along the beltlines, the belts are running out of alignment, rollers are missing, you have poor and bad splices, you have oil and grease around the belt drives, around the transfer points, lack of rock dust. I mean the list just goes on and on and on. Skilled monitoring systems that are placed on the beltlines today have got to the point where people just ignore them. We go through our everyday duties of we know they’re there and we have somebody that comes around and does the test on the CO monitoring system, but I can tell you when a person outside gets an alert or alarm level, I have personally have been involved when there’s a lot of discussion, is it a false reading, is it a malfunction of the system, is it something that’s really a problem and this discussion goes back and forth and back and forth before they even decide to go to the area to look to see if there really is a problem, and then I’ve seen it come up at times where they’ve had to stand outside for somebody to get a CO detector to even examine the area to find out if they have a high amount of CO. So I think there are a lot of problems on these beltlines that need to be looked at. I hope with this proposal, we can address those and when you come to making the decision as to whether somebody should be given the opportunity to use belt air to ventilate their coal mines, all this has to be taken into consideration and it has to be looked at. When I first started in the mines, we did use belt air. Then we used belt air in the petition of modification process and we opposed that. We went to numerous hearings and miners testified one after another that we didn’t think we should have to be knocked down to two entries or three entries and have to use belt air to ventilate the faces and so they came up with a scheme that, well, we need to put in larger blocks. We have to reduce the number of headings because we have trouble with the top. So that’s going to force to use the belt entries for an escape and for an area to ventilate the faces, so miners were forced with something that we believed and I still believe this with my heart and I’ll tell you why, I think that this whole thing transpired as a result of poor planning on the operators for their mines to set up. I can tell you I was called in as a chairman of the safety committee and sat down with the mine manager and said we’re going to go to three entry systems and we’re going to apply for a belt air petition, and by the time the discussion ended up, the truth came out. The only reason we were going for that was not to support the top, but it was because longwall mining got us to the point that the longwalls could out mine and we didn’t have enough thought to look ahead to set up our mining plans, the operators and the miners, so we were forced into doing something that we probably shouldn’t be doing today all because of a poor mine plan, but we’re stuck with something now that’s an animal larger than what we would like to see it and we believe that this is something that we need to -- I mean 30 years we’ve been talking about belt air petitions and we eliminated the belt air petition process and we went to a system that goes across the board and it was a big disappointment to us because finally after we digested the fact that we had to go with belt air, we were able to sit down with operators and come up with portions of their plans that gave extra added protections to those mines, specifically that the operations of each miner’s rep was at and that was included in the petition of modification process and those were adopted on approval. Well, then they eliminated the petition process and then we got everything -- what was handed back was allowed to use belt air, but all those things that were negotiated between the miners’ reps and operators were eliminated, so we lost those extra protections, and here we are today, we’re back talking -- we’re talking again about the concept of looking pretty much at the petition for modification process. Our hope is that if this rule is moved forward that if this is something that we’re going to have to face again that miners will have a strong voice on these plans at their operations as to whether they should or should not be approved and if they are approved, then miners should be able to have a voice into what extra precautions should be put in place about what was -- as well as what was mentioned in the proposal. Far too many times we don’t listen to the miners and those are the guys that know what goes on and those are the guys that can help prevent a fire, an explosion, help on numerous things and we need to listen what the miners say. I’d like to offer a few comments made by a previous speaker, if I may. He spoke about the section on methane 323 and he talked about an over numerous duplicated requirement that’s in the regulations today. I can’t understand taking that position when you look at helping reduce or eliminate things that may harm mines or the mine environment. Anytime we can reduce the amount of methane that’s in the mine, I think that’s what we should strive to do because methane is the enemy and so we should reduce the methane to the limits that we can, which is not only necessary, but bring it down to the lowest levels that we possibly can. He had commented that AMS operators he had disagreed that they should travel underground. This is something else that just baffles me. I can’t imagine how anyone would oppose this proposal of making your AMS operator or your dispatcher or whoever is going to be in charge of this system, not give them the opportunity to actually see what’s going on. When I worked at the mine, the dispatchers for years had not been underground. Once a dispatcher bids on a job, it’s like a life job they stay on until they retire and so as the mine develops those areas of the coal mine that they’ve never seen because they haven’t been there since that started, so we personally started a program where we started taking the dispatchers underground as the mine advanced and we went into different areas and I can tell you that the input from the dispatchers was well taken. They were glad that they went underground. They were able to apply from the outside whenever they were going to dispatch somebody from one place to another. They had it in their mind now because they actually saw the mine underground. They saw the AMS systems and they saw where these sensors were and looked at the sensors. They saw where they were placed and if they got an alert or alarm, they knew where they were located now because they physically were there and able to look at it and it just makes more sense to be able to add that extra bonus to somebody that’s going to be employed. You would think you would want that. There was a question on damaged rollers as to whether they should be replaced. It’s open to interpretation. Now, this should be a no-brainer to anybody. I can’t imagine an operator who would not want to upkeep their beltline and if you have damaged rollers to get them replaced immediately. I was a fire boss in the mine. I’ve walked beltlines. I was a belt man. I worked on beltlines. I put belt in. I replaced belts. I replaced splices. I replaced belt rollers on line belts, installed transfer points and I can tell you, we were sent in numerous times to replace rollers. There’s no such thing, and I’d like to reemphasize this, there’s no such thing as a safe broken roller. It could be stuck, frozen, broken. The bearings may be shot. There may be one, there may be 100, but anytime there’s a roller that’s not functioning on a beltline, it’s going to eventually cause damage to that belt whether it causes the rubber on the belt to start ripping and tearing, whether it starts making the splices start to tear or whether it causes misalignment of the belt causing coal spillage to occur, whether it causes the heat friction itself under spillage and smoldering at that point. There is no such thing as -- I’d just like to say that the stuck, broken rollers, misalignments of belts, destroyed splice, all this stuff needs to be addressed immediately. Noncombustible materials, I’d also would like to tell you from personal experience that these beltlines have got to the point that they don’t get the attention that they need and they’re grossly overlooked for general housecleaning, so I think anything that can be done to clean these beltlines up to keep them clean needs to take place. I want to talk about what happened at Aracoma and there’s been some discussions back and forth and you can say what you want, people can try to play it out the way they want to play it out, but the reality of it is that those miners died as a result of the same situation that will occur if belt air is being used to ventilate that section. Now, we argued during the time the investigation took place that belt air was being utilized and we got a story back that it wasn’t being utilized and the petition wasn’t actually active and put in place, but the bottom line is the same thing occurred as if belt air was being used to ventilate that section and those miners were overcome with smoke and they died and that’s a shame that men had to die. If some of the precautions had been put in place as suggested by this proposal, possibly those men would be alive today. People have gotten too lax on the so-called over rumors and duplicate requirements of what we’ve heard and spoke about. I mean what we maybe should do is just to eliminate any belt air plans or take a positive approach and add these requirements under the proposal until we stop burning up coal mines and killing miners. I think rather than continue to challenge and fight for what the intent of accumulation is, why don’t we spend more time on these beltlines and put more manpower to clean up these belts and then there wouldn’t be an issue as to what the interpretation is because nobody would have to cite it. Again, I thank you for your time. We’re going to offer additional written comments at a later point. We have miners here today from various locations that you guys can stand up, please, you UMWA guys. They’re here today to let you know as well that they’re watching what’s going on, they’re concerned what’s going on and we hope that everybody moves in the right direction. These guys are in the pits every day underground. MS. SILVEY: Before you leave, let’s talk about the smoke sensors because we included the smoke sensor requirement in the proposal, but we did comment that we had to take further action for it to become a reality because at this time there are no smoke sensors approved for use underground, and as you said something about we should require them and the operative thing is what you said, upon approval of the system and that’s the operative thing “upon approval” and you’re right, we have been reviewing these for the last -- a while, I know a while, a number of years, but they are not approved for use in underground coal mines right now. So we put a good bit information in the preamble and I don’t have to reread it. People can read it in terms of what is state of the art right now with respect to smoke sensors and we will just -- I don’t think we have a prognosis for when might become approved, but we will just, you know, continue to push forward on the things that have to be done to get them approved for use underground. MR. O’DELL: If I may? MS. SILVEY: Yeah. MR. O’DELL: What I read was that I think you were going to go back and re-look at this to see if we needed to have another proposed rule to address smoke detectors and that’s the way I read it and I hope that’s not the case. I hope that what we are going to do is because there’s a lot of data out there on smoke detectors and there’s mines that use smoke detectors. Like I said, when I was working in the mines we put smoke detectors in to see how they would function, how they would work and some mines still have use of those today. Rather than saying, okay, we’re going to stop and restart the whole process over again, why not collect the information that we already have. Let’s not reinvent the wheel. MS. SILVEY: No, and that’s what we meant by that, you know. Still the requirement is in this proposal, but the terms of the testing of the smoke sensors, whatever comes out of the testing, the parameters, whatever those types of things may have to be -- there may have to be another notice put in the federal register just telling people how they would be used, so that type of thing, or spacing for them or things like that, but the requirement is here in this proposed rule. So it was nothing relative to the requirement, but in terms of the parameters on which they would have to be -- that might have to be further -- some further information on that. I guess there’s no further need in discussing Point B, the regulator issue, because I asked about that in the opening statement and you said that you were going to provide further comment on that, didn’t you? MR. O’DELL: We’ve always been opposed to that and we’ve submitted comments in prior hearings about how we’re opposed to Point B. So Point B, we’ll give in-depth written comments to that portion of it. MS. SILVEY: Okay. MR. O’DELL: We’ll probably reread some of the comments that we’ve already submitted in the past. What we’ll do is -- we’re in the process of actually going back, pulling out some of our prior testimonies from some of our miners and some of the testimonies that was put together by the international and we’ll provide all of that as well. MS. SILVEY: You’ve commented on the three-month delay effective date, I believe, for the ventilation for, let me think, the use of belt air, I think, requirement and I think that that three-month delay effective date was included in the proposal just to allow the operator time to allow operators to submit a revised plan. MR. O’DELL: It seems like a long period of time regarding a year. If somebody would get their act together and when we’ve got miners’ lives at risk, I think we can do a whole lot better than that length of a time period. MS. SILVEY: I don’t think I have anymore comments. We look forward to your comments before the record closes on September the 8th and I would like to say in particular I remind you of the fact that there are so many miners here today that if the miners have comments on the part that we talked about earlier, the training with the cones and the indicators and the lifelines, indicators on the lifelines and escape ways, if we could get comments on that, that would be helpful. MR. O’DELL: I guess one of the points, and we’ll do that, but one of the points I’d like to make is we’re not talking about something today that’s totally new to the industry. We’re talking about something that has been tried and retried and done and redone. I mean, you know, it’s something that’s been going on for a number of years, so for people to say that they need more time to look at this, I think that the information, a lot of the information, you already have and we just need to make smart applications to how we move forward on this. Like I said, it would be our position that belt air should be banned and we should go back to more headings and offer miners a safer means to escape, a completely isolated escape way to where they don’t have to worry about holding onto cones to get out of the smoke environment. That’s where we should be going, but it doesn’t look like we’re going to do that. If we’re going to be forced with something that’s going to be crammed down our throats, then I think the safest approach needs to be put on the industry and we can move forward in that manner. MS. SILVEY: Thank you. MR. O’DELL: Thank you. MS. SILVEY: At this point, is there anybody else in the audience who wishes to testify? MR. HALL: Yes. My name is George Hill. I’m the chairman of the safety committee, Local 6426, United Mine Workers. In the past, many of your regulations have been written in blood. MSHA wouldn’t even be here today if miners hadn’t lost their lives and so many people wanted to change that. I just can’t believe that we’re sitting here today discussing putting belt air in the first place of the coal mines. If you’ve ever been backed in a corner with nowhere to go, that’s kind of what it’s like. If you permit belt air to be used in coal mines for ventilation purposes, that’s what you’re doing. You’re taking a coal miner three miles underground, putting him in the face of the coal mines, you’re taking that air and when the belt catches on fire and you’re pushing that air on top of him and he’s stuck in a corner. I, along with the representatives of the United Mine Workers, object to this and I hope that you all will see this through because it’s serious. I’ve been a firefight for a number of years, 19 years as a volunteer firefighter, and I don’t see any reasoning in doing this putting air on a beltline, pushing it in the faces of coal miners that’s trying to work. When it catches on fire, it has nowhere else to go but to them, and if you’ve ever been -- like I said, if you’ve ever been balled up in a corner with nowhere to go, that’s what it’s going to be like. So you can put all the sensors and early warning devices on that belt you want, but the truth of the matter is when the fire breaks out, the same results are going to occur time and time again, coal miners are going to lose their lives because you put air on the beltline that they was depending on. They was depending on fresh air in the face and instead they got carbon monoxide enriched air from the beltline. So I’m asking you to take into consideration my comments today when you review this again and make the mines safer for all workers. I represent the United Mine Workers, but I also represent every coal miner in the United States, so please take that into consideration. Thank you. MS. SILVEY: Thank you. You said you were a volunteer firefighter. Thank you for your services as a volunteer firefighter. At this point, can I take a break, a ten-minute break and we’ll come back in ten minutes, please. (WHEREUPON, a brief recess was taken, after which the following proceedings were had.) MS. SILVEY: At this time we will reconvene the Mine Safety and Health Administration’s public hearing on the Agency’s proposed rule on the recommendations of the Technical Study Panel to include fire resistance conveyor belts, fire protection and detection and the use of air in the belt entry. At this time, I would like to ask, please, if Mr. Allen Dupree would come back, and when he was providing his testimony for Alpha Natural Resources, he mentioned something and there was one clarifying thing I wanted to ask him and I’m sorry I inadvertently did not ask him. Mr. Dupree, you were mentioning on the provisions for the AMS operator training and the provision that we proposed that required the AMS operators to travel to the working sections, I think, every six months and you said that would result in the elimination of a number of qualified persons and I’d like to get just a little bit more information from you on that. The ones I think you said, as I recall, who were no longer physically able to travel underground, and you can add, if you would, please, whatever you would like to, but taking from what you said it’s my understanding -- are you talking about persons who are now AMS operators, but who have worked underground in the past and who are familiar with underground -- MR. DUPREE: Yeah, thanks, Pat. I guess just looking through the regulations and trying to digest the information, in your mind you kind of walk through what different scenarios might be faced and I do agree that it’s important for an AMS operator to have knowledge of the underground environment to assist in making decisions and making spur of the moment decisions, I think it is critical. One thing that came to my mind was if we had a miner that had worked underground five years, ten years, 20 years, a dedicated employee and extremely knowledgeable about the underground environment and for whatever reason he became disabled, whether it’s a back injury, anything, that he, for instance, now became your AMS operator, that would eliminate him from that job. So I don’t disagree that experience is good at deposition. I just had in my mind that you may have personnel out in the industry that were experienced, good employees that are no longer physically able to travel underground and why should we eliminate folks like that from being an AMS operator. MS. SILVEY: Okay. Well, now, if in your mind you have examples of people who fit in that category, who may be disabled now but have worked underground in the past and are now AMS operators, I’d like it if you could provide us with what number of estimates or numbers of people you have who fit in that category before the record closes on September the 8th, and if anybody else in the room who hears this question or if there’s people that are reading the transcript if you could do the same thing, we would appreciate it. MR. DUPREE: I would be glad to do that. I appreciate the work that the committee has done on this. I would like to say that several gentleman who followed me and gave their experience, I would like to make for the record it known that I worked in enforcement a long time and I’ve dealt with compliance on both sides, both on the Mine Safety and Health Administration side, both on the industry side. I’ve supervised the largest enforcement group in the nation in District 6 and I know from firsthand experience when the intent of the law is not clear what the result is. I can speak with firsthand experience, no matter how much you talk about it, discuss it, if the intent is not clear, it’s a disaster and it results in a lot of litigation whether the efforts to comply are there or not and it makes it difficult. I can speak for Alpha Natural Resources. We do our best to comply with the law. Our NFDL rates are well below the national average, so that’s critical to us. I believe in enforcement. When I was with MSHA, I believe in enforcement and compliance today. And I’ve been a member of MSHA’s rescue team for ten years. I’ve been involved in underground fires and explosions, so I know firsthand the how it affects the families, the mine rescue teams and the miners and I think that’s the most important thing we can look at here today, but I would like to get that on the record. Thank you. MS. SILVEY: Thank you. Thank you. Thank you very much. MR. DUPREE: Thank you. MS. SILVEY: Yes? Please. MR. O’DELL: I’m sorry, but that question that you raised with Mr. Dupree, I think it’s that we need to comment further on that. I hope we don’t eliminate a portion of this rule. I mean I understand there’s a federal disabilities act and people who are disabled. For the most cases, at least in union operations, miners who are on disability are home with their disability benefits. I don’t know about non-union operations how they function, but I can tell you in our operations in most cases, you know, they’re taking care of their health. They’ve paid their dues, they’re getting their disability checks and they’re doing what they need to do. I hope we don’t eliminate this portion of the rule because we may have a small percentage of folks out there who are disabled and can’t make that trip underground to fit this portion of the rule. I mean we may have to make some special provisions to take these -- just like you have wheelchair ramps at hotels and places like that, maybe we need to make special transportation provisions for these disabled folks that are in these positions so that we can still take them underground and let them see. I think it’s beneficial. I think we have to do whatever we need to do to go above and beyond, not just forget about it and eliminate that portion of the rule. I just wanted to go on the record and say that. Thank you. MS. SILVEY: All right. Is there anybody else who wishes to make further comment? Anybody else? I’m looking in the back of the room to see if -- you know, somebody said they felt like they were coerced into making testimony, so I hope that that person -- MR. HAMILTON: It took me a few moments, but I took the cue when you were staring at me for the third time. I’m Chris Hamilton with the West Virginia Coal Association and I would also like to thank you for bringing this hearing to Charleston, you know, right smack in the midst of one of the major coal producing regions of the nation. We represent the majority of the coal that’s produced here in West Virginia and the majority of that coal comes from underground mines. We’re still in the process of analyzing this proposed rule, but we do support the comments that were made by Mr. Bill Kaylor last week in Lexington on behalf of the Kentucky Coal Association. We have a lot of joint members who cross the state lines and between the two states we probably represent I would guess 75, 80 percent of the nation’s underground mines. We’re very proud of the success we’ve had in mining. We’re very proud of the improvements that have been made in overall mine safety here in the past couple of decades despite the widely publicized accidents that occurred in ’06. We also support and embrace the comments made by Mr. Allen Dupree here today on behalf of Alpha Natural Resources. In totality, we support those comments. I think Mr. O’Dell made a lot of good comments except for that last one. I would hope that we don’t try to make some accommodations for individuals who already have physical impairments so that they can be transported underground to simply view or examine some condition or some location. Again, we’ve made great strides here in the past couple of years to do everything humanly possible to make egress from the mine and escape from the mine more efficient, more effective in the event there is some undesirable event that occurs underground and I think that would complicate that goal and aspect and component of mine safety trying to, you know, accommodate somebody so that they can enter the mine and perhaps have a cursory visit, but at the same time in the event we have to remove that individual expeditiously from the mine, I’m not just sure it would be worth the additional accommodation. I’m troubled a little bit by some of the comments Mr. Weeks made. I’m not sure if he was representing the technical panel. I’m not sure if he was representing himself. I’m not sure if he was representing yet perhaps a third-party of special interest. I think the report speaks for itself. Again, I was a little troubled with a little bit of the spin, some of the bias that was invoked by Mr. Weeks as he was attempting to explain that report. So if we were in a court of law, I’d probably ask that that be struck from the record because I think the report in and of itself speaks for itself and doesn’t need necessarily an explanation or an unique spin placed on certain select aspects of it. The manufacturer who spoke initially here, not to be critical of him, but so often we see rules predicated on what manufacturers tell you they can or cannot do and it’s seldom that they say, I’m not sure -- I’m not sure I’ve heard any manufacturer say we can’t meet that deadline or we cannot do, but yet every so often the regulatory agency incorporates what’s said by the manufacturing community as the gospel and you have no way of holding the manufacturers accountable, but you do hold operators accountable for deliveries of those manufactured goods. I would suggest that MSHA somehow devise a means to hold manufacturers accountable for what they say they can manufacturer within the time line they say they can do it and if failure occurs that they somehow be issued that NOP, not the mine operator that you’re holding responsible today for the acceptance and implementations for those technologies. And we’ve run into some issues with SCSR’s, with safety chambers, with communication devices that have been proposed through regulation. We’ve had some real issues with those and most of those initial timelines and schedules were based on what manufacturers said they could do. So again, just a suggestion that MSHA somehow look into that. But we will by the end of the comment period, early September, we will provide detailed written comments on each and every section proposing that rule. So thank you for your time and indulgence and I’d be glad to answer any questions you may have. MS. SILVEY: Thank you. I don’t have any, but I would suggest and you said it and I would just underscore it, the need for people in here to get your written comments in by September 8th, the deadline, midnight September the 8th, eastern daylight savings time. MR. WEEKS: Can we talk about safety chambers a little bit? Just kidding. MS. SILVEY: I know you were. Okay. Anybody else? MR. WEEKS: Since it was recommended that my remarks be stricken from the report, I mean, you know, that’s not going to happen. It’s not his place to make that recommendation. This is not a court of law, et cetera, et cetera, but let me clarify in case Mr. Hamilton wasn’t paying attention. I came here representing the United Mine Workers, the international union. I was on the technical panel and it is me saying that. It’s not somebody else. So that’s just one comment. The second comment is that the comments that I made about holding operators to a higher standard that use belt air were taken directly from the report verbatim from the committee report and there is a recommendation to that effect and it’s discussed and I suggest that you and others read it. I wasn’t distorting what was there. I just read verbatim what was in that section of the report and I support it. Do I have anything else to say? No, I think that does it. MS. SILVEY: Thank you. I appreciate your comments. I think we’ve read all the recommendations in the report. Thank you. Thank you. MR. MCCOY: My name is Danny McCoy. I’m chairman of the safety committee for now Clayton Cliff coal mine in Wyoming County, I represent 500 coal miners and I didn’t come up here to talk, but I heard this gentleman just left from over hear talk about putting that guy outside and now they say he can’t go underground. I work every day and I represent and I’m with these 500 men. We need somebody outside that can come in, see our conditions, work with us and know what’s going on. If this man is disabled, they’ve got disabled people all over the country that they get their check and they go home. This man and these coal companies, 34 years of underground mining, when they use you up, they don’t care about you. They don’t care about that man. They’re just trying to get somebody out there that don’t have to go underground. I speak for 500 people. We want somebody outside that can come in and see what we’ve got and our conditions and ready to help us. That’s all I ask. MS. SILVEY: Thank you. Anybody else? If there’s nobody else who wishes to make additional comments or provide testimony, then I would like to say that on behalf of the Mine Safety and Health Administration, we appreciate very much your comments and your testimony at today’s public hearing, but those of you who came and did not provide comment or testimony, we appreciate your attendance here because the mere fact that you attended the hearing shows us that you have an interest in this important rulemaking. For those of you who have promised that you will provide additional comments and testimony before -- or comments before the record closes on September the 8th, then we look forward to receiving your additional comments. As you heard me say earlier, if you would please be as specific as you can and provide your specific rationale or if you have suggested alternatives, provide the suggested safety benefits to miners or address any other issues that you feel relevant and pertinent with respect to any of the proposals that we have on the table today. Again, we appreciate your participation in this hearing. Our final hearing is going to be Thursday, August 28th in Birmingham, Alabama and then as I said earlier, the record will close on September the 8th and as we all know we have to develop this final rule which must be finalized by December 31, 2008. So again, thanks and this hearing is concluded. * * * * * * Concluded at 1:30 p.m. * * * * * * REPORTER'S CERTIFICATE STATE OF WEST VIRGINIA, COUNTY OF KANAWHA, to wit: I, Dena A. Belisle, Certified Court Reporter, hereby certify that the foregoing is, to the best of my skill and ability, a correct verbatim transcription of the August 26, 2008 public hearing. My commission expires June 8, 2018. _______________________________ Dena A. Belisle, CCR Notary Public [J1]miners? [J2]??? [J3]156 [J4]2 ?? ?? ?? ?? ?? GARRETT REPORTING SERVICE “PROFESSIONAL STENOMASK FOR THE RECORD” POST OFFICE BOX 20200. CHARLESTON WEST VIRGINIA 25362 * (304) 346-0460 FAX (304) 757-7425 107 GARRETT REPORTING SERVICE (304) 346-0460 Post Office Box 20200 Charleston, West Virginia 25362