In Re: ) ) Public Hearing: Proposed Rule ) ) ) Pages: 1 through 80 Place: Knoxville, Tennessee Date: May 27, 1999 Before the UNITED STATES DEPARTMENT OF LABOR Mine Safety and Health Administration In Re: ) ) Public Hearing: Proposed Rule ) ) ) Hyatt Regency Knoxville 500 Hill Avenue S.E. Knoxville, Tennessee Thursday May 27, 1999 The parties met, pursuant to the notice at 8:30 a.m. APPEARANCE: Thomas Tomb, Moderator I N D E X Paul Schulte ....................................10 Paul Scheidig ...................................30 Henry Chajet ....................................45 Dan Steinhoff ...................................53 Hearing Began: 8:30 a.m. Hearing Ended: 3:00 p.m. P R O C E E D I N G S 8:30 a.m. MR. TOMB: We are going to get started now. I would like to read an opening statement into the record before we take recommendations. My name is Thomas Tomb. I am the Chief of the Dust Division, Pittsburgh Health and Safety Technology Center. I will be the moderator of this public hearing on MSHA's proposed rule addressing diesel particulate matter exposure of underground metal and nonmetal mines. Personally, and on behalf J. Davitt McAteer, I would like to take this opportunity to express our appreciation to each of you for being here today and for participating in the development of this rule. With me on the panel today from MSHA are Jon Kogut, from the Office of Program Evaluation and information Resources; George Saseen, from Technical Support; Sandra Wesdock, from the Office of the Solicitor; Pete Turcic, from Metal and Nonmetal Safety and Health; and Pamela King, from the Office of Standards, Regulations and Variances. This hearing being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is the practice of this Agency, formal rules of evidence will not apply. We are making a verbatim transcript of this hearing. It will be made an official part of the rule making record. The hearing transcript, along with all of the comments that MSHA as received to date on the proposed rule will be available to you for review. If you want to get a copy of the hearing transcript for your own use, however, you must make your own arrangements with the reporter. We value your comments. MSHA will accept written comment and other data from anyone, including those of you who do not present an oral statement. You may submit written comments to Pamela King during this hearing or send them to Carol Jones, Acting Director, Office of Standards, Regulations and Variances at the address you have listed the hearing notice. We will include them in the rulemaking record. If you feel you need to modify your comments or wish to submit additional comments following the hearing, the record will stay open July 26, 1999. You are encouraged to submit to MSHA a copy of your comment on computer disk, if possible. Your comments are essential in helping MSHA develop the most appropriate rule that fosters safety and health in our nation's mines. We appreciate your views on this rulemaking and assure you that your comments, whether written or oral, will be considered by MSHA in finalizing this rule. In April 1998, MSHA published a proposed rule to address exposure to diesel particulate matter in underground coal mines. Hearings were held in 1998. The rulemaking record will close on July 26th for that rulemaking also. The scope of this hearing today is limited to the October 29th, 1998 proposed rule published to address diesel particulate matter exposure of underground metal and nonmetal miners. This hearing is the fourth of four public hearings to be held on the proposed rule. The first hearing was held in Salt Lake City, Utah on May 11th. The second was held in Albuquerque, New Mexico on May 13th, and the third in St. Louis on May 25th. On October 29th, 1998 MSHA published a proposed rule that would establish new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines. The proposed rule is designed to reduce the risk of underground metal and nonmetal miners of serious health hazards that are associated to high concentrations of diesel particulate matter. Diesel particulate matter is a very small particle in diesel exhaust. Underground miners are exposed to far higher concentrations of this fine particulate than any other group of workers. The best available evidence indicates that such high exposures puts these miners at excess risk of a variety of health effects, including lung cancer. The proposed rule for underground metal and nonmetal mines would establish a concentration limit for diesel particulate matter and require mine operators to use engineering and work practice controls to reduce diesel particulate matter to that limit. Underground metal and nonmetal mine operators would also be required to implement certain "best practice" work controls similar to those already required of underground coal mine operators under MSHA's 1996 diesel equipment rule. Additionally, operators would required to train miners about the hazards of diesel particulate matter exposure. Specifically, the proposed rule would require that the diesel particulate matter concentration in underground metal and nonmetal mines be limited to about 200 micrograms per cubic meter of air. Operators would be able to select whatever combination of engineering and work practice controls they want to keep the diesel particulate matter concentration in the mine below this limit. The concentration limit would be implemented in two stages: an interim limit that would go in effect following 18 months of education and technical assistance by MSHA, and a final limit five years. MSHA sampling would be used to determine compliance. The proposal for this sector would also require that all underground metal and nonmetal mines using diesel powered equipment observe a set of "best practices" to reduce engines emissions. An example of this would be use low-sulfur fuel. The comment period on the proposed rule was scheduled to close on February 26, 1999. However, in response to requests from the public for additional time to prepare their comments and with additional data added to the rule making record by MSHA, the Agency extended the public comment period until April 30, 1999. The Agency welcomes your comments on the significance of the material already in the record, and any information that can supplement the record. For example, we welcome your comments on: additional information on existing and projected exposures to diesel particulate matter and to other fine particulates in various mining operations; the health risk associated with exposure to diesel particulate matter; on the cost to miners, their families and their employers of the various health problems linked to diesel particulate matter; or additional benefits to be expected from reducing diesel particulate matter exposure. The rulemaking record will remain open for submission of post-hearing comments until July 26th, 1999. MSHA has received comments from various sectors of the mining community and has preliminarily reviewed the comments it has received thus far. MSHA would particularly like additional input from the mining community regarding specific alternative approaches discussed in the economic feasibility section of the preamble. You might recall some of the alternatives considered by MSHA included an approach that would limit worker exposure rather than limiting particulate concentration; a lower limit; shortening the timeframe to go to the final limit; more stringent work practice and engine controls; and requiring particulate filters on all equipment. The Agency is also interested in obtaining as many examples as possible of specific situations in individual mines. For example, the composition of the diesel fleet, what controls cannot be utilized due to special conditions and any studies of alternative controls you might have evaluated using MSHA computerized estimator. We would also like to hear about any unusual situations that might warrant the application of special provisions. The Agency welcomes comments on any topics on which we should provide additional guidance as well as any alterative practices which MSHA accept for compliance before various provisions of the rule go into effect. MSHA views these rulemaking activities as extremely important and knows that your participation is also a reflection of the importance you associate with this rulemaking. To ensure that an adequate record is made during these proceedings, when you present or oral statements or otherwise address the panel, I ask that you come to the podium, you clearly state your name, spell your name and state the organization that you represent. It is my intent that during this hearing, anyone who wished to speak will be given an opportunity. Anyone who has not previously asked for time to speak needs to tell us of your intentions to do so by signing the request to speak sheet or see Ms. Pamela King. Time will be allocated for you to speak after the scheduled speakers. We are scheduled to go until 5:00 p.m. today, however, if we run out of speakers, we will cut the hearing short. I will attempt to recognize all speakers in the order in which they requested to speak. However, as the moderator, I reserve the right to modify the order of presentation in the interest of fairness. I doubt that it will be necessary, but I also may exercise discretion to exclude irrelevant or unduly repetitious material and in order to clarify certain points, the panel may ask questions of the speakers. Our first presentation this morning is going to be made by Dr. Paul Schulte from NIOSH. Thank you. DR. SCHULTE: Good morning. I am Paul Schulte, Director of the Education and Information Division of National Institute for Occupational Safety and Health. With me today are Larry Grayson, NIOSH Associate Director for Mining, Leslie Stayner, Chief of our Risk Evaluation Branch and David Votaw, NIOSH's Policy Response Coordinator. The following is NIOSH's testimony on the Mine Safety and Health Administration's proposed rule on diesel particulate matter exposure of underground metal and nonmetal miners. NIOSH supports the Mine Safety and Health Administration in its effort to establish new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines, thereby reducing the risk to underground miners of the health hazards associated with exposure to diesel particulate matter, DPM. The following comments are intended to help improve the quality of the proposed rule. MSHA has prepared a thorough review of the health effects associated with exposure to high concentrations of diesel particulate matter and NIOSH concurs with the published characterization of risks associated with these exposures. Since the publication in 1988 of the Current Intelligence Bulletin 50, Carcinogenic Effects of Exposure to Diesel Exhaust, NIOSH has considered diesel exhaust to be a potential occupational carcinogen and has recommended that exposures to diesel exhaust be reduced. MSHA has proposed a final limit on the concentration of diesel particulate matter to which underground metal and nonmetal miners may be exposed of approximately 200 micrograms per cubic meter of air, equivalent to 160 micrograms per cubic meter of total carbon. Quantitative risk analyses that were performed by NIOSH indicate that the risk of lung cancer associated with an exposure limit of 200 micrograms per cubic meter may be excessive. A summary of the risks predicted from alternative analyses of epidemiologic studies for varying levels of exposure is presented in Table 1 and we will show it on the screen here. The estimated risks associated even with the proposed exposure limit of 200 micrograms per cubic meter range from 21 to 430 excess deaths per 1,000 workers so exposed over a 45-year working lifetime. Even the lower bound of this range is well in excess of the risk level of one per thousand that the US Supreme Court determined to be significant in the Benzene decision. The fact that the risk observed in these analyses is high is not surprising considering that 200 micrograms per cubic meter is higher than the average exposures in several epidemiologic studies that show significant increased risk of lung cancer. Despite limitations in the currently available data, there is reason to be concerned that the proposed exposure limit of 200 micrograms per cubic meter will not provide adequate protection to miners and that achieving even lower levels is desirable. NIOSH concurs with MSHA's selection of Analytical Method 5040, Elemental Carbon, diesel particulate, for compliance determinations of DPM by mine operators. Experimental results has demonstrated that this method meets the NIOSH accuracy criterion of +/- 25 percent of the true value 95 percent of the time. Application of the method requires alternative sampling strategies under certain conditions, which will be described in detail later in this testimony. NIOSH is also prepared a draft manuscript entitled, "Estimated Technically Feasible DPM Level for Underground Metal and Nonmetal Mines" that is currently undergoing peer review. We anticipate that it will be finalized prior to the closing of the MSHA docket on July 26th, 1999 and we will forward it to MSHA when completed. Preliminary analyses indicate that an exposure limit below 200 micrograms per cubic meter is achievable with current technology. Now, or comment on specific aspects of the Federal Register Notice pertaining to the section on supplementary information under questions and answers about the proposed rule. Question four states, aren't NIOSH and NCI working on a study that will provide critical information? Why proceed before the evidence is complete? NIOSH concurs with MSHA's decision to proceed with the rulemaking based on the evidence currently available as presented in this FR notice. MSHA's studies summarized in Table III-1 of the proposed rule indicates that the current DPM exposure levels range from 10 to 5,570 micrograms per cubic meter with a mean exposure level of 830 micrograms per cubic meter. The NIOSH/NCI study will generate additional support information on the relationship between DPM exposure on and health outcome as well as the components of DPM responsible for the observed health effects. However, given the length of time needed to complete this study and the current state of knowledge regarding DPM exposures and health effects in miners, MSHA is justified in proceeding with the rulemaking at this time. The description on page 58108 of the NIOSH/NCI study contains several inaccuracies. The FR notice states, "It is worth noting that while the cohort selected for NIOSH/NCI study consists of underground miners, specifically underground metal and nonmetal miners, this choice is in no way linked to MSHA's regulatory framework or to miners in particular." In fact, this study includes only nonmetal miners, both underground and surface. Metal miners were excluded because they have confounding silica and radon exposures in addition to diesel exhaust exposure. Further on the same page, it is stated, "For example, one part of the study would compare the health experiences of miners who have worked in underground mines with long histories of diesel use with the health experiences of similar miners who work in surface areas where exposure is significantly lower." The NIOSH/NCI study is evaluating only the mortality of the workers. Mortality should replace health experience in this sentence. The same paragraph also states, "Since the general health of these two groups is very similar, this will help researchers to quantify the impact of diesel exposure." It is more accurate to state, "Since the general health and other risk factors of these two" and then continue the sentence. Question five in that section states, "What are the impacts of the proposed rule?" On page 58111 MSHA asked for additional scientific studies, models and/or assumptions suitable for estimating risk at different exposure levels. Since the development of the protocol for the NIOSH/NCI study which contains references to all major cohort and case-control studies in diesel exhaust-exposed workers, we have found one additional study in German in press. This study of potash workers is very similar to the NIOSH/NCI study and thus benefits from the advantages inherent in our study, that is, high exposure, clear exposure gradient, no major confounders, while it also has the benefit of information on smoking on a subgroup of the cohort. Because it is a study of miners with the advantages stated above, we recommend that MSHA consider it in this rulemaking. The results of the study indicate a relationship between diesel exhaust exposure and a risk of lung cancer. Depending on the model and the subgroup chosen, the elevation of risk varies from relative risks of 1.16 to 3.63 per 20 years of exposure, although not in a statistically significant manner. Lack of significance maybe the result of the study having a small cohort, approximately 5,550 workers, a limited time from first exposure, average 19 years, a young population, average age of 49 years at the end of follow-up. Question nine states, what are the major issues on which MSHA wants comments? On page 58114 MSHA asks for any additional information on the health risks associated with exposure to DPM. Enclosed are three publications which support the hypothesis that DPM compromises the ability of alveolar macrophages to produce antimicrobial substances and leads to susceptibility to pulmonary infection. This is a study by Castranova et al, 1985, the response of rat alveolar macrophages to chronic inhalation of coal dust and/or diesel exhaust, a study by Hahon et al, 1985, influenza virus infection in mice after exposure to coal dust and diesel engine emissions and a study by Yang et al, 1997, effects of diesel exhaust particles on the release of interleukin-1 and tumor necrosis factor-alpha from rat alveolar macrophages. Question 12 states, how is MSHA proposing to measure the amount of DPM in underground metal and nonmetal mines? The preamble discussion of the question on pages 58116 and 117 includes several statements referring to NIOSH Analytical Method 5040. Comments on several passages are as follows: "The technique being proposed for compliance sampling in underground metal and nonmetal mines meets these requirements. It involves sampling with a quartz-fiber filter mounted in an open face filter holder and a chemical analysis of the filter to determine the amount of carbon collect. Although the NIOSH method was validated using a regular respirable dust sampler, MSHA gave consideration to size selective impactor sampler developed by the Bureau of Mines that would not collect any dust over one micron in diameter. And elsewhere, "However, measurements by the Agency to date indicate that in some underground metal and nonmetal mines as much as 30 percent of the DPM present may be larger than one micron in size. The Agency is continuing to evaluate such an approach, welcomes comments on the implications to miners and mine operators of excluding from consideration this larger faction of DPM." Our comment is, as mentioned previously, NIOSH supports MSHA's selection of method 5040 for compliance determinations of DPM, but the use of the method requires an altered sampling method when significant total carbon interferences are detected in a mine workplace. Diesel particles having diameters above one micron are respirable size and thus, they should not generally be excluded from sampling. It is recommended therefore that respirable samples be collected and analyzed for total carbon, except when significant total carbon interferences are detected in respirable samples at a mine, in which case, the newly developed 0.8 micron cut-point impactor should be used for sampling, followed by total carbon analysis. With particular control technology in place, the newly developed 0.8 micron cut-point impactor will collect greater than 98 percent of the DPM mass. In other words, less than two percent of the DPM would be greater than one micron in size. Another quote from page 58116, "MSHA does not believe that either oil mist or cigarette smoke will pose a problem in using this method. MSHA currently has no data as to the frequency of occurrence or the magnitude of any potential interference from oil mist, but during its studies of measurement methods in underground mines, MSHA has not encountered situations where oil mist was found to be an interference." Our comment is combustible liquids such as oil mists, especially drilling oil, fuel and lubrication oils, are sources of organic carbon which may exist in the mine environment. All non-diesel sources of carbonaceous materials pose a potential interference problem if total carbon is used as a measure of DPM. It is important to recognize that the presence of OC interferences may not always be apparent through visual observation of the workplace and sample filters. Sometimes they are only recognized during a Method 5040 analytical procedure. It is also important to recognize that the levels of OC interferences might be low only in relation to the current levels of DPM. This likely won't be the case when 160 micrograms per cubic meter standard for total carbon is implemented. In considering all of the potential sources, OC interferences could sometimes constitute a sizable fraction of the proposed standard, primarily in respirable dust samples. Based on the results for mining samples analyzed by NIOSH investigators and a contract laboratory, carbonates appear to posed the primary OC interference seen in respirable dust samples. If the carbonate evolves as a single peak, a more specific measure of diesel source OC can be obtained by integrating the carbon peaks separately so it is not included in the OC results recorded by the laboratory. Alternately, the samples can be acidified to remove the carbonate or the newly developed 0.8 micron cut- point impactor may be used to minimize its collection. Based on the mechanism by which oil mists are generated, the size of droplets should exclude their capture by the newly developed 0.8 cut-point impactor and thus oil mist interference should be removed. Question 15 stated, what is the basis for the concentration limit being proposed in the underground metal and nonmetal mines? Within that discussion, there is the quote, "The proposed rule would not bring concentration down as far as the proposed ACGIH TLV of 150 micrograms per cubic meter." We note that ACGIH has recently proposed a TLV for DPM of 50 micrograms per cubic meter rather than 150 micrograms per cubic meter. Question 29 states, what specifically would be the obligation of an underground metal and nonmetal mine operator to monitor DPM exposures and correct overexposures? A quote from this section, "The propose rule does not specify a required method for sampling. In the absence of a procedure to convert total carbon measurements into equivalents under other methods, methods other than Method 5040 would not provide exact information about compliance status, but they certainly would provide a general guide to DPM concentrations if used under proper circumstances." Then, later on, it notes under section three, Method Available to Measure DPM, "There are a number of methods which can measure DPM concentrations with reasonable accuracy when it is at high concentrations and when the purpose is exposure assessment. Measurements for the purpose of compliance determinations must be more accurate, especially if they are to measure compliance with a DPM concentration as low as 200 micrograms per cubic meter." Our comment on this is that it is important to provide mine operators with the appropriate guidance on DPM measurement for both assessing exposures and assuring that DPM levels are in compliance with the proposed standard. Of the three method listed in Section 3, only NIOSH method 5040 will provide both pieces of information. Submicrometer sampling and RCD methods are gravimetric. As such, they might be useful in determining particulate levels near the proposed interim standard of 500 micrograms per cubic meter, but not at the proposed final standard of 200 micrograms per cubic meter. NIOSH Method 5040 is inexpensive and accurate, and there currently four commercial laboratories that provide the analysis. The proposed rule should recommend the use of NIOSH Method 5040 for monitoring by operators. Now, from under the section under background information, heading number three, Methods Available to measure DPM, there is a quote, "NIOSH Method 5040. In response to the ANPRM, NIOSH submitted information relative to the development of a sampling and analytical method to assess the diesel particulate concentration in an environment by measure the amount of total carbon." Our comment is, although Method 5040 gives a measure of total carbon TC, it is important to recognize that TC is not always a specific marker of diesel particulate matter because carbonates and non-diesel sources of organic carbon may be present. Carbonate interference can be dealt with through acidification of the sample or minimized by the use of the newly developed 0.8 micron cut- point impactor which also largely removes other types of organic carbon. See our comments on pages five and six in this regard made in connection with oil mist and other interferences. Another quote in this section, "Studies have shown that the sum of the carbon accounts for 80 to 85 percent of the total DPM concentrations when low-sulfur fuel is used." And it cites a reference of Birch and Cary (1996). We note that the Birch and Cary citation is not the correct reference for studies on low-sulfur fuels. Also, we note that the second sentence on page 58129 should be clarified by the insertion of the of the "non-diesel" as follows: "The only potential sources of non-diesel carbon in such mines would be organic carbon from oil mist and cigarette smoke." Additionally, other sources of non-diesel organic carbon include drill oil mists, and carbon from carbonate. Where organic based drill oils are used, significant interferences have been noted in diesel particulate levels as measured by the RCD method. Another quote in this section, "While samples in underground metal and nonmetal mines could be taken with a submicrometer impactor, this could lead to underestimating the total amount of DPM present. This is because the fraction of DPM particles greater than one micron is size in the environment of non-coal mines can be as greater as 20 percent." Our comment is the reference is not appropriate because the authors did not take measurements in mines. MSHA's unpublished date noted in the Preamble, which indicates that the fraction of particles having diameters above one micron is about 30 percent in some cases and should be cited with respect to in-mine measurements. Another quote from this section, "Although NIOSH Method 5040 requires no specialized equipment for collecting a DPM sample, the sample would most probably require analysis by a commercial laboratory. MSHA recognizes the number of commercial laboratories doing the thermal-optical method is limited. However, there are numerous laboratories available that have the ability to perform a TC analysis without identifying the different species of carbon in the sample. Total carbon would provide the mine with good information relative to the levels of DPM. MSHA believes that once there is a need, for example, as a result of the requirements of the proposed rule, more laboratories will develop the capability to analyze DPM using the thermal- optical method." Our comment is, there are currently four commercial laboratories that perform the Method 5040 analysis and two additional laboratories plan to purchase the required equipment in the near future. The US Environmental Protection Agency, EPA, had recommended the use of the method for its National Ambient Air Quality Standards Program, PM 2.5. The number of samples coming from the mining industry will likely be small relative to that from EPA. Under the section, Use of Alternative Surrogates to Assess DPM Concentrations, is the quote, "A number of commentators on the ANPRM indicate that a number of surrogates were available to monitor diesel particulate. Of the surrogates suggested, the most desirable to use would be carbon dioxide because of its ease of measurement." Our comment is, an additional procedures to those mentioned by MSHA with the use of CO2 as a surrogate, is the problem of exhaled breath in breathing zone samples. Under the item number five, Limiting the Public's Exposure to Soot-Ambient Air Quality Standards, we note that the discussion of PM10 on page 58132 incorrectly lists the two components of the 1987 EPA standard. They should read as follows: an annual average limit of 590 micrograms per cubic meter and a 24-hour limit of 150 micrograms per cubic meter. Then under Section III, Risk Assessment, section 2(b) Mechanisms of Toxicity, on page 58159, MSHA asks for additional information on fine particle deposition in the respiratory tract, especially that might pertain to lung loading. As previously mentioned on page five of these comments, we are enclosing the following journal article that supports decreases in clearance as noted in the animal data study by Castranova that I referred to earlier. That concludes NIOSH's testimony. Thank you. MR. TOMB: Thank you, Dr. Schulte. Do we have any questions? MR. TURCIC: The first one is relative to your statement and your comments about the accuracy of 5040, where it is plus or minus 25 percent. Is that as it relates to the method's accuracy to determining elemental carbon or for the method's accuracy for determining diesel particulate matter? DR. SCHULTE: I would like to have my colleagues be available to answer some of these questions also. I'll turn to Larry Grayson. MR. TOMB: Can you come to the podium and identify yourself? MR. GRAYSON: My name is Larry Grayson. I don't want to misstate that, but it's my understanding that it is specific. AUDIENCE MEMBER: We can't hear you. Would the question be asked again, please. MR. TURCIC: The question is is the accuracy stated in the comments, plus or minus 25 percent, of Method 5040, is that the accuracy as it relates to determining the amount of elemental carbon or is that the accuracy as it relates to determining the amounts of diesel particulate matter? MR. GRAYSON: What it does is it relates to the determinations, all of them, so it would be the elemental carbon and it would also be the total carbon in determinations -- those two final numbers. Then the relationship with DPM would have to be made after that, but this is relative to the actual measurements. MR. TURCIC: So, it's the accuracy as it relates to the determination of the amount of carbon on the filter, not necessarily as that then relates to the amount of diesel particulate matter. MR. GRAYSON: That's correct. MR. TURCIC: And then the only other question I have is in the comment you stated the cite of Birch and Cary. Is it correct? What would be the -- about the 80 to 85 percent, what would be the correct cite and does NIOSH -- what percentage would NIOSH say the total carbon is of diesel particulate matter? MR. GRAYSON: I thought that cite pertained to the issue of low-sulfur fuels and they did not refer to low- sulfur fuels in that reference. We don't necessarily have a reference. We might be able to find one for you, but that's what we were referring to in that comment. But they did not speak to the issue of low-sulfur fuels. MR. TURCIC: But they did speak to the 80 to 85 percent. MR. GRAYSON: That's not the objection. This was a laboratory-type study and it is not talking about low- sulfur fuels. The 80 to 85, they way you have cited it, would. MR. TURCIC: Okay. MR. TOMB: But that would be for high-sulfur fuel. You are saying that they didn't discuss the issue of sulfur content in that article. MR. GRAYSON: Yes. MR. KOGUT: I want to thank you for the additional references you gave and the one that you referred to on page three of the written version of your testimony, can you make available to us when you submit your technical feasibility document, at the same time could you also make available to us that translation? DR. SCHULTE: Yes, we can. And the translation -- the data were in German -- I believe it may be about to be published as well. MR. KOGUT: For our information, do you have an author for that article? DR. SCHULTE: I don't think we know that at this moment, but we can get it to you. MR. KOGUT: Okay. And then with respect to the three other ones that you listed on the following page, I want to point out and this might be a point of clarification because it's not that clear in the Federal Register, but starting on page 58219, in the third column of that page in the notice, it begins with a list of supplemental references in which the alphabetized list starts over again, that Yang article is listed at the end of that list of supplemental references, so that might easily have been overlooked, but it is in there. With respect to study that is in German, I have one question about that, which is that you mentioned that depending the model and subgroup chosen, the relative risks varied from 1.16 to 3.63 per 20 years of exposure, was that increase across the categories in any way correlated with the intensity of exposure for the categories? MR. VOTAW: I am afraid I don't have the answer to that, but we can get you that information. MR. TOMB: I have just one question. In your comment on page eight relative to the inappropriateness of using what you referenced for particles greater than one micron, for a percentage of material greater than one micron, does NIOSH have any publications of data as to -- that would provide us with information on this? MR. GRAYSON: We have none that has been analyzed. MR. TOMB: Okay. You mean from your study that is going on now. I was wondering if you might make a check -- it seems to me that there might have been some information in the Morgantown Laboratory where somebody told us that they had data we respect to that, that that data was available. MR. GRAYSON: We'll check on that. AUDIENCE MEMBER: Could you repeat that question, please? MR. TOMB: The question was on page -- you don't have the page number, but in their comments, NIOSH said that the -- made the statement that the fact that DPMs greater than one micron in size in the environment of noncoal mines can be as great as 20 percent and the Vuk article does not reference samples collected in mines. I think there is another reference that I have for that, but they also think that NIOSH may have may have industry-based supportive data on that also. Since that is a question, maybe you could just check and see if you have that. MR. GRAYSON: We certainly will. MR. TOMB: Okay. Do you have anymore questions? Thank you very much for your presentation. DR. SCHULTE: Thank you. MR. TOMB: Our next presentation will made by Dr. Paul Scheidig from the Nevada Mining Association. MR. SCHEIDIG: Good morning, Mr. Chairman. You gave me a title that I don't necessarily have, but I'll take it anyway. Thanks again for this opportunity to comment. My name is Paul Scheidig, S-C-H-E-I-D-I-G. I am the Director of Regulatory and Environmental Affairs for the Nevada Mining Association. The United States metal mining industry has never shied away from its regulatory responsibilities and the Nevada Mining industry exemplifies that particular commitment. Since the "gold boom' cycle began in the early 1980s, our statewide industry has built what are among the most up to date technologically and environmentally advanced mines in the nation. Over 11 billion dollars has been invested in Nevada's mining operations during that time period, but such funding is not a bottomless reservoir. Nevada metal mines are deeply conscious of their responsibility to the natural environment and to their workplaces. However, the continued viability of our industry is threatened by the plethora of regulations that already exists, as well as by those recently proposed by federal government agencies, including MSHA. At the present time, the federal government is engaged in no less than 90 separate rulemaking proceedings aimed directly at mining and mineral processing companies or their immediate customers such as the electric power generation industry, for example. It is no exaggeration to observe that the level of new regulation recently proposed by the Department of the Interior, the Department of Agriculture, the Army Corps of Engineers, the US Environmental Protection Agency, and MSHA is overwhelming. A few of the regulatory issues currently facing the mining industry, in addition to the proposed DPM rule, include -- and I have got just a short list here: surface mining regulations proposed by the Department of the Interior, Bureau of Land Management to revise 43 CFR Part 3809, EPA's Toxic Release Inventory Program, the Clean Air Act, section 112(r) Risk Management Program, the Clean Air Act's rigorous and constantly changing Title V permitting program, the Army Corps of Engineers revamping of the nationwide permit system, EPA's Advanced Notice of proposed rulemaking to establish new water quality standards, EPA's new phase IV land disposal restrictions for mineral processing facilities, EPA's proposal to establish regulations for persistent bioaccummulative toxics, the US Fish and Wildlife's Service Endangered Species Act candidates issues. In Nevada that would include goshawks, spotted frog, bull trout and sage grouse right now that we are all looking at. The National Environmental Policy Act requirements for any significant operational modifications or proposals - - and by the way, the average cost of an average -- an average cost for a NEPA document for a Nevada mine is ranging somewhere around two million dollars -- upwards of five million dollars for each company operation these days, so that's not inexpensive process. MSHA's hazard communication rule and MSHA's noise rule, just to give you a sense of what kinds of rules are out there that this industry is currently facing and dealing with. Individually, each of these existing and proposed programs -- considered alone -- may seem to government regulators reasonable and affordable by the industry. For example, the Interior Department's proposed 3809 regulations by the Bureau of Land Management's own estimate will cost the western mining industry over 160 million dollars. Nevada's share of that cost is over 93 million or if you put it on sort of a gold standard, since most of our mining in Nevada is gold, that will cost us about $12 an ounce -- with no obvious benefit to the citizens of the US, nor the metal mining industry. Similarly, the present diesel proposal will also cost the industry at least 19.2 million dollars annually to comply, it's estimated by MSHA. But a more realistic estimate provided this panel in the Salt Lake hearing by the National Mining Association is a cost of over 58 million dollars annually. Again, if you put it on a gold standard, it's about $9 an ounce. And a total initial compliance cost of over 400 million dollars for the industry. The collective and multiplying financial onslaught of all of these new regulatory compliance costs will cause severe damage to an industry that is already reeling from low metal market conditions. Currently the market is fluctuating around $273 per ounce for gold and that average total costs for underground mining operations in Nevada in 1997 was about $271 per ounce. And then you add on those estimated costs of what we think these regulatory programs will do to us in the near term and it's going to add at least somewhere between $40 and $80 an ounce to the cost of doing business to meet the new pending federal regulations. And that, we think, will be very disastrous. No one federal agency is charged with the responsibility of overseeing the overall economic impact of diverse regulatory initiatives on an industry. But speaking for the Nevada mining industry, I can assure the panel that we feel the sum of all these impacts to our state is already staggering and the sum is beginning to stagger the entire metal mining industry in the United States. The proposed DPM rule has an economic impact analysis, but it appears to have been drafted without any substantial reference to realistic information provided by the affected industry. By itself, this rule will impact heavily on the Nevada mining industry, which is highly dieselized, while it will only generate marginal health benefits at best. Other presentations in the previous hearings, but especially in Salt Lake, clearly demonstrated those facts and it was also underscored in the St. Louis hearings as well. The cumulative economic impacts of all of these existing and proposed rules are creating a milieu that destroys metal mining in the US, is our belief. MSHA and every regulatory agency affecting mining must be sensitive to this fundamental concern and propose only regulations that are truly necessary and those that keep America's industrial sector, otherwise the goose that laid the golden egg, alive and well and capable of responsibly meeting reasonable and appropriate environmental and health standards. As stated earlier, the costs associated with this proposal will damage this industry severely. The cost of retrofitting equipment will be huge. That particular cost doesn't count or consider the sampling, testing and analysis costs that this industry has and will continue to bear in order to evaluate this rule, and any similar subsequent actions by the industry. An estimate of nearly one million dollars has already been expended to date by this industry to evaluate this proposal -- not talking about implementing any programs, but evaluating this proposal. Nevada's small number of underground mines have spent over $60,000 just sampling to date. And we are a drop in the bucket in terms of the total numbers of mines that are going to be affected by this rule, yet we are spending a significant amount of resources in this area. And there is still additional work to be done for comments that will be delivered by the July 26th deadline. If, as the DPM preamble states, MSHA's objective is to protect workers, the proposal will fail in that objective, because, as shown by our comments, it threatens the continued economic existence of mining jobs it purports to protect. We do not want to believe that MSHA is attempting to protect miner's health by forcing them into other forms or types of employment. We certainly don't think that they are going to be able to be employed in underground mining after this rule is promulgated if it stands as proposed. In a concurring opinion in the Supreme Court's Benzene decision, former Chief Justice Burger presciently warned against economically destructive regulations achieving only marginal or speculative benefits at best, stating that when discharging his duties under the statute, the Secretary is well admonished to remember that a heavy responsibility burdens his authority. Inherent in this statutory scheme is authority to refrain from regulation of insignificant or de minimis risk. When the administrative record reveals only scant or minimal risk of material health impairment, responsible administration calls for avoidance of extravagant and comprehensive regulation. Perfect safety is a chimera. Regulation must not strangle human activity in the search for the impossible. In addition, the Court affirmed the non-delegation doctrine in deciding that case and in fact, the US Court of Appeals for the District of Columbia recently reaffirmed this doctrine on May 14th. A recent Wallstreet Journal article on May 18, 1999 noted that, "The doctrine is alive and well, serving primarily as a canon of judicial construction to save otherwise overly broad statutory grants or agency claims of legislative authority from being held unconstitutional." Moreover, the article noted in the benzene case that the Court was faced with a claim that OSHA has untrammeled discretion to choose any regulatory policy in the spectrum between regulating at all and imposing rules so stringent that they take an industry to the brink of economic ruin. The justices used the nondelegation doctrine essentially to rewrite the statute, limiting OSHA to regulation of "significant risk". MSHA's proposed rule may be very close to violating the nondelegation doctrine, especially since it partially relied on EPA's recently vacated PM 2.5 rule and has not clearly demonstrated associated health risks to warrant such a standard. MSHA is a part of the Department of Labor, which is the federal arm whose paramount responsibility is the promotion and preservation of jobs for America's workers. Mining is the highest paying and largest paying employer in rural America and this is certainly the case in Nevada. It is incredible to us that MSHA has issued a proposal that contains a standard that we show cannot be measured accurately, nor is economically attainable, and has such great potential to cripple the industry and thereby frustrate the Department's fundamental goal. In closing, I would like to just summarize some of the comments that you have heard over the last four days -- four sessions, I should say -- and just review a few of what we consider to be the findings that we presented. The mining industry does care about possible health risks associated with occupational exposures, but the Agency has failed to demonstrate any credible dose-response basis for minute PELs proposed for DPM. The one occupational study cited in the preamble focusing solely on miners -- Waxweiler in particular -- was apparently not adjusted for smoking and a substantial percentage of the study group may have had little or no diesel exposure. And that's among the allegedly most supportive pieces of evidence to which MSHA can point. The so-called best evidence at hand for excess risk of disease from miner's occupational exposure to DPM, at best, is ambiguous, conflicting, dubious and incomplete. It affords neither credible nor substantial evidentiary support for the severe occupational exposure limits that MSHA proposes. The Agency's dogged reliance on such spotty evidence is all the more perplexing to industry in light of the ongoing NIOSH/NCI study -- which we obviously just heard about this morning in terms of where it's going -- which purports to shed much needed light on this murky subject. Congress recently forced the Interior Department to extend the public comment period on 3809 rulemaking by 120 days to allow for the completion of the National Academy of Science's Committee on Hardrock Mining upcoming report on that particular rulemaking. We strongly recommend that NIOSH (sic) similarly stay this proposal light of the comments on the NIOSH/NCI study. We invite the Agency to sit down at the table with the industry inappropriate truly collaborative dialogue on a more reasoned and deliberate approach to DPM control, tied in part to expected sequential progress on the NIOSH/NCI study. Another point, industry also believes that MSHA has so seriously underestimated the real total cost of this proposal to the metal and nonmetal industry as to blind itself to the true picture. The proposal is economically infeasible. As both oral and written comments have made clear, Nevada underground metal mining cannot afford either to switch from dieselized mobile equipment, nor comply with the stringent PELs. Sans a total shutdown of the industry, the true costs may be three to five times higher or more than what MSHA has estimated. As the Nevada industry commentors have pointed out to this panel, there are extremely serious interferences problems with DPM sampling by the NIOSH 5040 method. MSHA should be sensitive to the fact that the industry has already engaged in considerably more sampling by the 5040 method than has the Agency itself. MSHA would be unwise in the extreme to brush off these objections with conclusory references to unproved corrective sampling and testing methodologies. One thing is certain: if MSHA forces through this proposal on the basis of unproven and possibly unreliable sampling techniques, enforcement actions based on the such methodologies will immediately generate widespread litigation challenges. In view of MSHA's rejection of a PEL-approach in its DMP proposal for the underground coal sector because of carbon interference problems, the Agency would be well counseled to sit back, catch its breath, and proceed with far more deliberation and consultation with industry than it has so far. MSHA has pointed to the various fine particulate studies underlying the recent EPA rulemaking to limit the exposure to the general public. As a regulatory agency, however, MSHA should carefully consider that the resultant severe EPA air quality standard based on these studies was deemed so costly and politically questionable that the President of the United States stayed its effect into the next decade -- actually 2005. Moreover, two weeks ago, the day after MSHA Albuquerque hearing, the United States Court of Appeals for the District of Columbia Circuit struck down the rule as an over-broad violation of the powers delegated to EPA by Congress in the American Trucking Association versus the United States Environmental Protection Agency. For all of the foregoing reasons, the Nevada Mining Association respectfully urges MSHA to avoid a rush to overly stringent regulation while there is still time to discuss this matter reasonably with the affected mining community. A toolbox approach is a good starting place for such a dialogue. We invite MSHA to the table to discuss the way and means of seeking a level playing field within that context, without imposition of unwarranted PELs. In sum, the Nevada Mining Association urges MSHA to re-evaluate the proposal and postpone any further action until such time as real science, sampling, technology, feasibility issues and epidemiology are more clearly understood and available for reasoned consideration. The Nevada Mining Association will submit further comments by the July 26th close of the record. Those are my formal comments. One other observation that I will make since I have the opportunity of being at the podium is to make at least some comment or reference to the manner in which the hearings have been conducted and a concern that I think our association and some of my members have expressed to me. I took the time and energy after this particular set of hearings was announced to make sure that I changed my schedule to be here at the hearing -- for all four hearings. I was really very surprised and taken back in the St. Louis hearing to find that two of the panel members that heard a substantial amount of testimony, especially in Salt Lake, and then again in Albuquerque -- well, Albuquerque wasn't quite as substantial -- but they are absent for these last two hearings in St. Louis and in this location, in Knoxville. Then another panel member, with all due respect, joins in St. Louis and in Knoxville here, not having been privy to nor heard the personal presentations of those particular presenters in the earlier hearings. I think that information is lost in the sense of getting an idea of what people's values are and time in presenting comments to you - - you know, I think that the sense of their comments would be lost in the continuity of having a panel hear public comment and be able to understand the difficulties we are having with this rule is somewhat compromised because of the fact that you haven't yourselves dedicated that panel to all four sessions -- like this industry has dedicated itself to make sure that it was here for all four sessions. In addition, the only other notable thing that I will make for the record -- and it may sound as a criticism and maybe it is a criticism to some degree, but I was really sort of surprised as a person in the audience of how many of you on the panel, rather than asking questions for clarification of many of the speakers, were more or less challenging -- at least from my perception -- challenging those at the podium relative to the efficacy of their particular comment or the defense of your particular proposal, rather than trying to elicit or draw from them clarifications of what they intended. I felt as if maybe you were trying to defend your proposal more so than you were trying to elicit comments on the proposal. And I certainly hope that isn't your intent, nor the desires of this panel in that you are objective and open to at least taking a very serious close look at this proposal and making sure that you are going down the right path. This industry doesn't want you to necessarily -- just give us a blank check to do what we want, but we want to make sure that we are also not given such an onerous regulation that we really can't survive in the future. We want to survive and make sure our employees are healthy and have jobs and we don't think that this particular proposal is capable of doing that and making sure that that is a future we can see or understand. I'll shut up here before I ramble. MR. TOMB: Thank you for your comments. I guess particularly for the last ones. Let me say a couple of responses to your latter comments anyway and I don't want this to be taken as challenging what you said. MR. SCHEIDIG: No, that's fine. MR. TOMB: Since I have been sort of overseeing -- I have let the panel pose the questions -- I thought that in some of the situations where you may have looked at it as a challenge, sitting on the other side of the table, I thought it was a good dialogue, not from a defensive standpoint, but just an understanding standpoint of how the Agency did look at the data, so it does provide a perspective there from that standpoint, for clarification. I'm sorry if it came across a little differently to the audience. MR. SCHEIDIG: That was my perception. MR. TOMB: Okay. MR. SCHEIDIG: That one could easily draw my conclusion more so than it could yours. But that is my perception. MR. TOMB: Let me assure you one other thing and that is all of these comments are important to the Agency and will be considered more definitely by the Agency. I don't feel that there is any impact because there had to be a couple different members on the panel for several of these hearings. That is what the public record is for. All of the people that were here are still -- will still be working basically on this DPM proposed rule and all that information will be considered with equal importance. Okay? MR. SCHEIDIG: Okay. MR. TOMB: Do we have any questions? Okay, thank you for your presentation. MR. SCHEIDIG: Do you need a copy of this? MR. TOMB: Yes, I would like a copy. Our next presentation will be by Mr. Chajet of Patton Boggs. MR. CHAJET: Thank you, Mr. Tomb. I just have a few items that I would like to ask the panel to respond to for the record. Number one, Mr. Tomb, would you be kind enough to provide the names of all of the MSHA personnel who are working on the proposed rule besides those members of the panel who are here today? MR. TOMB: Do you mean now? MR. CHAJET: If you could, yes. MR. TOMB: There is George Saseen -- you mean other than the panel that is here? MR. CHAJET: Yes, other than the panel members. MR. TOMB: Okay, there would be Mr. Haney, Robert Haney, who has been at the other hearings like this one. MR. TURCIC: Do you want who worked on the proposal or who will be working on -- MR. CHAJET: Both. MR. TOMB: Mr. James Custer from metal and nonmetal. This is only for -- relative to the metal and nonmetal? MR. CHAJET: Correct. The question goes to the metal and nonmetal. MR. TOMB: And Mr. Ron Ford, Mr. Peter Galvin, Deborah Green of the Solicitor's Office. Let me clarify -- or ask a question. You are talking about people again who specifically worked on it? I can also give the names of J. Davitt McAteer and -- MR. CHAJET: We understand. I'm talking about the policy people at the Agency, the people that were on the working group that drafted it and are working on it the finalization of it. I understand the political process. MR. TOMB: I think that's all. MR. CHAJET: The second part of that question is we would request that the curriculum vitae of the biography information for each person who worked on the proposed rule be included in the public record and we would also request at this point, if each person on the panel could provide for the public their experience in working in underground metal and nonmetal mines. I assume from the silence that there is none. MR. TOMB: I'm sorry, you want -- MR. CHAJET: I was asking the members of the panel if they had any experience working in metal and nonmetal underground mines and I assume from the silence your answer is none. MR. TOMB: No, Mr. Haney who has been on the panel has done extensive work in an underground mine. Mr. Turcic has extensive experience in underground mining and people in my division who have been each involved in conducting sampling and make recommendations, studies in mines, have also had extensive experience in metal and nonmetal mines. MR. CHAJET: For the record, if you could supply any members of the panel working in underground metal and nonmetal mines. MR. TOMB: That's what I was going to do. MS. WESDOCK: Henry, do you also want -- MR. CHAJET: No, we are not asking the Solicitor's office for their background. Our interest is in understanding the experience in metal and nonmetal mining primarily -- if there are any member with experience actually having worked in metal and nonmetal mines, by the MSHA policy makers who are drafting and finalizing the proposed rule. Second, we would like to ask the panel members if they have mining engineering education background, degrees, professional relationships, mining engineering background. And we would like that included in the record, if any. We would like to ask the panel members whether they have any automotive or diesel engineering backgrounds and we would like that included in the record. We would like the panel members to state, any members who are working on the rule to state their epidemiological or medical degrees that permit them to understand risk. Mr. Tomb, for the record, we would like for you to confirm that you are a member of the ACGIH-TLV committee along with representatives of OSHA and NIOSH who have recommended a diesel particulate matter standard very similar to the proposed rule. MR. TOMB: Okay. MR. CHAJET: You are a member of the ACGIH-TLV? MR. TOMB: Oh, yes, I am. MR. CHAJET: Mr. Tomb, would you also confirm for the record that the statistical base of DPM exposures contained in MSHA's proposed rule materials includes analysis conducted by the Denver MSHA laboratory before it was closed down? MR. TOMB: I'm sorry, would you repeat that question, please? MR. CHAJET: Would you please confirm for the record that the statistical base of DPM exposure materials contained in MSHA's proposed rule is based on MSHA's Denver laboratory results? MR. TOMB: I'm not sure I can do that at this time. I don't think there is any measurements that were made out of the Denver laboratory. MR. CHAJET: Would you confirm that for the record? We believe that a number of the studies contain measurements made at the Denver laboratory. We would like it confirmed for the record. MR. TOMB: DPM? Are you talking about the particulate measurement? MR. CHAJET: Particulate measurements whether respirable, combustible dust or whether they are total dust, whether there were weights that were taken, whether they were making sub-micron measurements, whatever information is in your statistical base from the Denver laboratory, we would like it clearly identified since that laboratory has been declared to be non-reliable. MR. TOMB: Just for the record, I am not sure that laboratory has ever been made non-reliable. MR. CHAJET: Mr. Tomb, we would also like for you to confirm for the record that you and other members of the MSHA panel have had extensive discussions with NIOSH about their testimony on the proposed rule prior to today and we would like you to supply for the record a list of each and every such discussion along with the date and topic and the participants of the discussion and a summary of the discussion. We take your silence to mean that you did have extensive discussions -- MR. TOMB: I'm sorry. You put in the record and I guess I am confused about whether you want it right now -- MR. CHAJET: We would like to confirm that you did have extensive discussions, as did members of the panel, with NIOSH about their proposed testimony. MR. TOMB: I would say for the record, that we did not have extensive discussion with NIOSH relative to their testimony that they presented here today. And we will document the amount of discussion that was held for the record. MR. CHAJET: We would assume that would include discussion on their position on the proposed rule, whether it dealt directly with the testimony given -- prior to the testimony. So we would like to documented for the record. MR. TOMB: Say that again. MR. CHAJET: In other words, any discussions that were held with NIOSH personnel about their position on the proposed rule, we would like documented through the record. MR. TOMB: We'll put them in the record. I can't document them at this particular time. MR. CHAJET: I appreciate it. Mr. Tomb, we would also like you to confirm for the record that MSHA's extensive illness and injury database called the part 50 database which requires mandatory reporting of occupational illnesses does not support MSHA's or NIOSH's diesel risk assessment since it discloses relatively few, if any diesel- related illnesses. We would like that -- MR. TOMB: I will have to look into that because I don't know what that part 50 supports. MR. CHAJET: Would you confirm for the record, Mr. Tomb, that MSHA has not conducted any analysis of its own part 50 illness reporting database in proposing this rule? MR. TOMB: I'll have to get clarification on that before I can put an active statement into the record. MR. CHAJET: Mr. Tomb, for the record, we note that yesterday Mr. Joe Main of United Mineworkers of America appeared at a United States Senate oversight hearing before Senator Enzi's committee on health and safety. During that hearing, he described NIOSH's risk assessment testimony position presented today for the first time in public by NIOSH representatives. Almost concurrent with his testimony, two of the NIOSH witnesses in their offices refused to provide public copies of their testimony to our office yesterday. We believe that the inconsistency in revealing the testimony contents to the United Mineworkers prior to today's hearing would be inconsistency of not releasing that public to industry representatives such as myself demonstrates the ongoing bias that the Agency in its relationships in supporting United Mineworker's ban diesel position that has been in place since the days when diesel engines substituted for coal-powered railroad trains. We are seriously concerned about that relationship and the release of that information to the United Mineworkers prior to today's hearing while simultaneously refusing to make that information available to industry representatives such as myself. That's all I have for the record today. Thank you very much. MR. TOMB: Thank you for your comments, Mr. Chajet. MR. TURCIC: Don't we get to ask any questions? MR. CHAJET: I would be pleased to entertain whatever questions you may have. MR. TOMB: Our next presentation, I don't have a person's name who is going to make a presentation, but it's going to be from IMC Global. Is there somebody here from IMC Global that is intending to make a presentation? Do you want me to take a break and then -- AUDIENCE MEMBER: That will be helpful. MR. TOMB: Why don't we do that? We'll take a 20- minute break and that will give that person time to appear. (Whereupon, at 10:01 a.m. the hearing was recessed, to reconvene at 10:20 a.m.) MR. TOMB: Before we have the next presenter, Sandra? MR. WESDOCK: I would like to point out a couple things regarding the last presenter, Henry Chajet's testimony. Two points, first regarding his request for MSHA's information regarding our dealings with NIOSH, I would like to let you know that everything related to this rulemaking and our dealings with NIOSH is in the rulemaking record. If it is not there, then it is irrelevant or it might involve some other standard and that's why it is not in the record. So, you can go through the rulemaking record and everything regarding NIOSH is in the record, the docket. Number two, regarding the requested information regarding the curriculum vitae and all that other -- you know, background information regarding the panel, background, since that information really does not pertain to diesel particulates rulemaking per se, that information is available. So if you would like that information, then you can go ahead and do a request to MSHA and that information will be provided to you. MR. TOMB: Thank you. Our next presenter will be Dr. Dan Steinhoff from ARSARCO. MR. STEINHOFF: I'm not a doctor. MR. TOMB: Mr. Steinhoff? MR. STEINHOFF: Thank you. My name is Dan Steinhoff, S-T-E-I-N-H-O-F-F. I'm a graduate mining engineer from the University of Wisconsin, mining experience of 26 and half years, about 14 years as a mine manager. I have been a Safety director, been maintenance manager. All of these comments and all of my work history are influenced heavily by what I have done in the past. Hands on person. I'm an operator. My present position is manager of ASARCO's Young Mine. We support the comments submitted by NMA and member companies. My comments given today represent an effort to protect miner's health and to maintain jobs in the underground mining industry. The East Tennessee Zinc District has been in continuous production since the early 1900s. ASARCO's Tennessee Mine Division employs 413 people. Underground mining provides a major positive impact to the local community. The mines have provided stable employment together with an excellent benefit package. The proposed diesel particulate rule could possibly the last straw for the mine's continued viability. If you are sensitive to the commodity market, you know that metal prices are extremely low at this time. Yesterday LMA price was .45 for zinc. The East Tennessee zinc occurrence is low grade by anyone's standards. The miners in the district mine the lowest grade of zinc ore underground in the world today. Our ore is considered waste by most underground mines. During 1999 ASARCO's three East Tennessee zinc mines will mine 2,357,000 tons or ore at a zinc grade of 2.75 percent. Yearly zinc production is 199,300,000 pounds of zinc metal contained in concentrate with by-product production of 120,000 tons of masonry sand, 360,000 tons of ag line, and 1,269,000 tons of washed aggregate. Our continued ability to mine is strictly based on the cost to produce a pound of zinc. As underground miners we must the lowest cost in the world. That's in the world. The miners here -- and there are three of them here in the back row -- are the best underground miners in the world. The discussion of the proposed rule has understated the cost of DPM control. An estimate of costs associated with after-treatment soot traps, computer controlled diesel engine conversion and use of low-sulfur diesel fuel has been complete for the three ASARCO operating mines. The mines have been using EPA number two low- sulfur fuel for about two years. In the Knoxville area, low-sulfur fuel contains 0.038 percent sulfur. Number two diesel off-highway contains 0.16 to 0.18 percent sulfur. The increased cost of the 607,000 gallons used in a year is $18,200. This was the first effort by the division to control DPM. MR. TOMB: May I ask you a question right there -- I don't mean to interrupt you. Are you saying there that you are using the lower sulfur fuel? MR. STEINHOFF: Yes, and we have used it for two years. MR. TOMB: Thank you. MR. STEINHOFF: New equipment has been ordered with computer controlled engine technology. Detroit D-deck engines are running in three loaders and two haul trucks. Two loaders and two trucks are scheduled for delivery in June for Young Mine and two trucks for Immel Mine with Detroit D-deck engines. Jumbo conversions to the new Deutz 1013 engines have been completed at Coy Mine with a conversion schedule for a jumbo at Young Mine during the month of June. A Detroit D-deck has replaced a Deutz engine in a loader at Coy Mine with an additional replacement scheduled in the near future. The cost of a normal Deutz F6L912W rebuild is $8,500. The replacement cost of a Deutz BF4M 1013 is $14,000. In general, the additional cost of a computer controlled engine is $5,500 over the normal rebuild cost for each unit. Replacement of Cat engines in LHD and haul truck fleet is considerably more expensive. Cat engine rebuild cost is $15,500. Detroit D-deck 60 series replacement cost is $20,500. Net cost over rebuild cost is $20,500 for each unit. The division has made an effort to reduce engine emissions with the new technology. During the last several years new equipment has been ordered with catalytic converters. With the knowledge of engine conversion cost, an estimate of conversions on existing equipment was calculated. The cost represents an increased cost of a conversion over the normal rebuild cost of an engine. The three mines this total is $607,500. Since the onset of the DPM proposals, the division has responded with further efforts to reduce engine emissions. An opacity meter is in use to measure engine exhaust giving the mechanic a quantifiable number to diagnose engines problems and measure his success in engine repair. Engine exhaust is measured with a 20-second long load test two times. A snap test includes five accelerations with the series of five done twice. The readings are averaged and evaluated. Engine performance is considered good if the averages are less than 10. The cost of exhaust after-treatment is extremely expensive. In the past, ceramic type soot filters have proven not to be durable. Tests by other mines have shown that the ceramic filter material can become loose within the canister resulting in crushing of the material and premature failure. The cost of fitting 130 soot filters at present prices is $1,156,000. The filters require a kiln regeneration at 1,000-hour intervals and may last up to 10,000 hours. This cost is a repeating cost every three years as filters reach the end of their life. Soot filters must regenerate during normal operation of the equipment. The application of the filters is not appropriate for equipment that does not run under full load conditions such as personnel tractors and supply hauling equipment. The engine exhaust temperature is simply too low to allow regeneration. A quick summary of additional costs are: low- sulfur fuel, $18,200, engine conversions, $607,500, complete exhaust after-treatment, $1,156,000. This total package will cost $1,781,700. MSHA proposes that mines will only be able to use MSHA approved engines. This is fine for mining equipment manufacturers. Mines utilize other equipment that is not specifically manufactured for the mining industry. These include road graders, tractor used as equipment and personnel haulers, forktrucks, dozers, tractor mounted backhoes, tractor mounted impact breakers. Under the present proposal, none of the equipment could be used. Are equipment manufacturers going to go through MSHA, to go the engine approval process for underground mining market? The division utilizes 34 tractors for personnel and equipment hauling. That represents 1530 horse power. An industrial tractor with an in-house fabricated bed cost $18,000. There is no replacement vehicle on the market at that cost. Will Case build a backhoe for underground use with an MSHA-approved engine? The backhoe with an impact hammer offers both a safe and efficient alternative to the conventional breakage of oversize material utilizing a drill and explosives. The proposed rule limits an operator's ability to provide diesel-powered service equipment that is both safe and economical. The proposal further complicates engineer repair part availability by requiring only MSHA-approved engine parts. Again, the repair parts will be provided at a premium cost. The underground mining market represents and extremely small segment of the total engine market. MSHA must consider the total economic impact of the proposed DPM rule. MSHA has estimated the average exposure of underground miners is 1,835 micrograms per cubic meter. The proposed rule requires operators to decrease the exposure to 400 micrograms per cubic meter within 18 months of the final rule's publication. As will be presented in NMA's post-hearing comments, Dr. Peter Valberg of Cambridge Environmental has calculated an occupational exposure to 500 micrograms per cubic meter diesel exhaust yields a mutagenic dose equivalent to smoking approximately one cigarette per month. Do engine manufacturers have the capability to produce the quantity of the new technology engines required to meet the 400 microgram per cubic meter exposure limit? ASARCO's three Tennessee mines would require 56 Deutz BF4M 1013 engines, four Detroit D-deck 50 series engines, and 12 Detroit D-deck 60 series engines to convert drilling and muck hauling equipment. We are not convinced that the new technology-type diesels will decrease the DPM exposure to the proposed limits. In addition to engine controls, underground ventilation will never approach surface conditions. Anyone involved with mine ventilation will tell you it is physically impossible. Within the preamble is a risk assessment which serves as the Agency's basis that miners are at risk for DPM exposure. The Agency, industry and even medical experts cannot agree on the risk of diesel particulate exposure. Currently, NIOSH and the National Cancer Institute are conducting a scientific study to assess the effects of diesel particulate exposures in the mining industry. We support the efforts of the companies involved in that study and would urge the Agency to await the results of that investigation before promulgating final rules. This study has the potential fill in many of the knowledge gaps that exist regarding diesel exposure in mining. Under the proposed rule, a single sample above the TLV triggers both penalties and action up to and including a diesel particulate control plan. MSHA will and does expect operators to demonstrate plan effectiveness by monitoring their employee's exposures. Good industrial hygiene practice indicates that multiple samples must be taken to assess employee's occupational exposure. That same should be true for determining if an over-exposure is present. Area samples would be allowed under the proposal. The Agency recognizes that a diesel engine produces varying amounts of particulate depending upon engine load and speed. Load and speed are varied during the engine approval process by MSHA. Under the proposal, an area sample could be taken under conditions of acceleration at low RPM which is the time that an engine is working at its lowest efficiency. The Agency recognizes an entire duty cycle during testing, but under the proposed rule, only a portion of an engine's duty cycle would be sampled. An area sampled does not protect the health of miners because it does not represent a true occupational exposure. The proposed regulation limits the working hours of employees. From an operator's point of view, this limitation would be nearly impossible to manage. Which employees would be limited in working time? Repair employees work over the entire mine. How do you quantify the exposure under the varying conditions of an employee working in intake air at the main shaft for two hours in a shift, three hours on a conveyor that may or may not have diesel equipment operating in the up-stream ventilation, and three hours on a rail haulage shoot in a mine exhaust stream? The Agency is requiring an impossible task that crosses the line with overtime considerations in negotiated labor agreements. Ventilation is the last issue to address. The division has begun to utilize Vnet computer programs to model each mine's ventilation circuit. The East Tennessee zinc mines extract ore by unsystematic room and pillar methods. The ore occurrence is contained within irregular collapse breccia structures. I might add that's dolomite and limestone, magnesium, calcium carbonate as well as calcium carbonate. Active stopes and haulage areas can range from 16 feet by 16 feet drifts to 80-foot high stopes with 35 to 40 diameter pillars. Typical stopes can be several hundred feet in both length and width. Airflow through these high and wide stopes is difficult to measure due to the large cross sectional area. During the last year, auxiliary fan and motor size has been increased from 40 horsepower to 75 horsepower. Bag ventilation tube has been increased from 30-inch diameter to 36-inch diameter. Typical ventilation circuits are complex due to the systematic nature of the ore occurrence and the mining method. As a result, it is difficult to construct a completely accurate model of ventilation in the small areas covering a single working area. Air quality must be checked in working areas to confirm proper ventilation for the control of exhaust and blasting gases. DPM exposures will require this same confirmation. Mine ventilation circuits depend on openings with the surface. Young Mine began production in 1956. It covers two and half square miles. Modification of the existing ventilation circuit is dictated by the configuration of the existing mine. An air shaft was sunk in Immel Mine during 1994. The cost of a conventional 14-foot diameter concrete lined ventilation shaft is $1,807 per foot. The total cost of an additional air shaft 1,200 feet long would be estimated at $2,193,400 complete with fan. The yearly power cost of a 200 horsepower fan is $50,000. I might add that the economic impact in the discussion section appears to be really low when we have gone back and looked at the cost of these items, the cost of compliance. As managing mines, we have done a lot of things to try to improve air quality. I firmly am convinced that we are not going to be able to meet the standards, at least at East Tennessee Zinc Mine. It's going to be extremely difficult. And this is from an operator's point of view, from a practical point of view and not from a model point of view. It's going to be a difficult task. Any questions? MR. TOMB: Thank you for your presentation. MS. KING: Any questions? MR. TURCIC: I have one. The cost that you show, is that only the cost for the purchase of like the engine or does that also include the installation? MR. STEINHOFF: That includes the installation and any modifications that we have to make to the equipment. MR. SASEEN: Could you for the final record, when you submit comments, could you break down those costs a little bit better on -- MR. STEINHOFF: What kind of breakdown would you like? Do you want to know labor costs -- MR. SASEEN: Yes, labor costs -- MR. STEINHOFF: Do you want to know how much it costs to change the machine? Do you want to know the cost from loss of production? If we factor that in, it's huge. MR. SASEEN: However you want to break it down, but that will give us an idea of what you are saying -- like rebuilding -- you are saying instead of rebuilding, you are replacing, you have got higher costs. If you could itemize or somehow show what some of the things are that are involved in that, so we can see that. MR. STEINHOFF: One thing that you have to understand, this involves several different types of rigs. MR. SASEEN: That's good -- MR. STEINHOFF: For instance another would have the same Deutz engine as jumbo has in it, but depending upon the frame modifications you have to make to accommodate the new engine as well as being able to accommodate torque converters, I have used an average cost there from our history. I can get you an average cost. It won't be exactly right on the money, but, yes. MR. SASEEN: You have a good point that different machines use the same engine. Maybe you could specify what types of experience you have with different machines. MR. STEINHOFF: And some we haven't converted yet either. MR. SASEEN: And I know that. MR. STEINHOFF: For instance, locomotives. We haven't done that yet. MR. SASEEN: But any of that information, because rebuild, like you said, it is an important issue and it does vary, so that type of information. MR. TURCIC: What has been your experience when you have changed an engine relative to the amount of engineering work that you need to do in order so that the new engine matches the equipment? If you have to change a lot of other components -- MR. STEINHOFF: The first one is extremely painful. The first D-deck change probably took three months to complete. There were a lot of things that weren't anticipated. We brought in the equipment manufacturer as well as a engine manufacturer. The jumbo change that we have will be on a Canon jumbo. We brought in again, the Canon people and the Deutz people. Most of the engineering is done on the fly. It's very difficult to get an equipment manufacturer to come back and say I want to retrofit an engine. Well, he can do it for you -- at a cost. It's much easier to get the components that you think you need and to do it on the spot and go from there. Another problem with equipment is that each carrier is different. Many times engines and how they line up and what kind of converters are used are different even though it's the same model. MR. SASEEN: That $18,200 that you specified, I assume that is your increased cost in going from the high- sulfur to the low-sulfur? MR. STEINHOFF: That is the difference in cost between just number two fuel and EPA low-sulfur. That is just the difference. MR. SASEEN: Does that include the highway tax or is that -- MR. STEINHOFF: There are no highway taxes on off the road fuels. MR. SASEEN: On off the road fuels. MR. STEINHOFF: Right. MR. SASEEN: On the low-sulfur fuel that you are buying -- MR. STEINHOFF: There are no highway taxes. We are off the road. You can go to anybody and say I want to buy low-sulfur fuel, I am using it off the road. They won't include the highway tax. MR. SASEEN: Okay. MR. STEINHOFF: They will dye the fuel so that if you do put it in your tank, you can get caught. MR. SASEEN: I have heard of companies -- they have to pay the tax and then they go back and they can get a refund or something. MR. STEINHOFF: I would add that the fuel distributor was very reluctant to do this because it requires that the fuel be dyed because we use it off the road and if he were to dump that in Joe Blow's gas station down the street, he would have a tremendous problem. So, distributors are really reluctant to give you the EPA low- sulfur fuel. MR. SASEEN: You talked about your engine test, the load test and the snap acceleration test, and you consider the average is less than 10. Are those numbers -- MR. SASEEN: I really couldn't tell you. I couldn't tell you what numbers they are. All I know -- MR. SASEEN: Could you give us a little more information in your submittal on what kind of -- on the procedure of the test and what that 10 means? MR. STEINHOFF: Really, all it is measuring the opacity of the exhaust. It really doesn't have anything to do with -- it does have the particulate load -- obviously if the opacity is higher, it's a higher particulate load. But what it does do is it gives you not necessarily a diagnostic number that is perfect that you would find in a laboratory, but it gives something for a mechanic to understand -- look, this has got a problem with the exhaust, is it on the air cleaner system or is it on the fueling system. And it gives them a better way to diagnose a problem. MR. SASEEN: Thank you. MR. KOGUT: You stated that MSHA has estimated that the average exposure of underground miners is 1,835 micrograms per cubic meter. I assume you were talking about underground metal and nonmetal mines? MR. STEINHOFF: Yes. MR. KOGUT: I'm not clear on where that 1,835 came from. MR. STEINHOFF: It came from a graph in the discussion. MR. KOGUT: Do you know off hand which graph you are referring to? MR. STEINHOFF: I can get it for you. MR. KOGUT: I want to just clarify that there are really two separate estimates of the average concentration of diesel particulates presented in the proposal. One is in table 3-1, which is the average of the exposures in MSHA's field studies that were taken in production areas and haulage ways of underground metal and nonmetal mines and the average exposure for those concentrations that MSHA observed was 830 micrograms per cubic meter. And then the other estimate that is contained in the proposal is based on test data on engines combined with MSHA's diesel equipment inventory. That is contained in table 3-7 in the proposal and the estimate there after adjusting for the duty cycles of the engine is 1319 micrograms. Maybe we can clarify this if you tell me what graph you are talking about. MR. STEINHOFF: If you turn to page 58105, figure I-1 comparative exposures. MR. KOGUT: Yes. MR. STEINHOFF: Dock workers, truck drivers, railroad workers. MR. KOGUT: Right, the top of that bar represents the average exposure that was measured at that underground metal and nonmetal mine that had the highest average exposure. MR. STEINHOFF: That isn't what this says. It says comparative exposures. MR. KOGUT: Just a minute. MR. TURCIC: That wouldn't change anything you have said anyhow, right? I don't see anything in what you wrote up where whether that number is 1,835 or 1,310 where that affects anything you are saying. MR. STEINHOFF: I think it's pretty important. It shows where have we come from and where are we going. That's a pretty high number. We are talking about getting down to 160 micrograms. MR. KOGUT: Excuse me, but what the caption says is the range of average DPM exposures observed in various mines, so that bar represents a range of average exposures observed at individual mines. The bottom of the bar, which is as you might notice is just a little bit above the zero line, the zero axis, represents the average exposure at an underground metal and nonmetal mine that has the lowest average exposure that was observed in the MSHA field studies and the top of the bar is the average exposure at that underground mine, which MSHA observed the highest average exposure. If that is not clear in the caption, I apologize, but that is what the bar is meant to depict. AUDIENCE MEMBER: Is he asking a question or cross-examining? MR. KOGUT: No, I'm not cross-examining. MR. TOMB: He is explaining the graph. MR. KOGUT: I am just trying to clarify what this graph shows. MR. STEINHOFF: I misunderstood. I thought we were looking at averages. MR. KOGUT: No, the averages across the underground metal and nonmetal mining industry that are estimated are given in those two tables that I mentioned. MR. STEINHOFF: At any rate, we are going from a high number to a lower -- much lower number. MR. KOGUT: One other thing I just wanted to clarify. There is the place in your testimony where you -- on page eight of the written version of your testimony you said under the proposal that area samples could be taken under conditions of acceleration and low RPMs and so forth. The only thing I want to clarify there is that the intention of the proposal is that samples should all be full shift samples. MR. STEINHOFF: I think that my point is that when you put a sampling instrument in an area, not where employees are working, but just in an area, you don't know what an occupational exposure is. And I think that is an important thing. There is -- you could be in down-stream ventilation where no one is working and sample the air. Remember we are talking about very low limits here. You could have it where streams come together, it could be only part of the engine cycle. In other words, if you have several trucks running in a ventilation stream and you put it at the absolute worst place, during that duty cycle, where the engine is working at its most inefficient, you are going to get a high sample. But if you put it on the employee that is going to be in the range of those places, the sample is going to be lower. In most cases, you know, when an engine is working near the top of its RPMs -- probably say in like a 95 percent mode, not during acceleration phase, but running in that area, that's a sweet spot. The lowest emissions occur in that area. The highest emissions are at idle and during acceleration. You have got to look at the whole cycle. You can't just look at one place. An employee is not standing there for eight hours. He's on a piece of equipment. That's what I mean. MR. SASEEN: Mr. Steinhoff, a few more questions. On page four you mentioned cost of fitting 130 filters at the present price of $1,156,000. MR. STEINHOFF: Yes. MR. SASEEN: The 130, is that all the engines in your mine? MR. STEINHOFF: That would be all the engines that we have. MR. SASEEN: Could you again in your final comments, could you break that down -- the horsepower of the vehicle and so on? MR. STEINHOFF: Sure, that's not a problem. MR. SASEEN: One last thing, have you had a chance or have you done any work with our estimator spreadsheet to show as you are getting these new engines -- because you gave some ventilation numbers in your engines. MR. STEINHOFF: One problem with the estimator that I found was getting the data feed -- being able to find out what the exact emissions are for the engines. It's got a thing from Cat that doesn't show you one number, it shows you a million numbers -- which one do you use? During the discussion -- our ventilation is extremely difficult to model because we have got large open stopes. I haven't used the estimator mainly because I couldn't find the data that I needed to feed it and I'm afraid that that model is going to be really hard to get anything hard out of it -- to get some hard data out of it, could we even achieve it? I don't know at this point. To answer your question, no, I haven't used it. MR. SASEEN: Thank you. MR. TOMB: I just have a couple. In your conversions that you are making in your engines or putting new engines in -- MR. STEINHOFF: Yes. MR. TOMB: Like, at what rate does that usually take place in your mine? MR. STEINHOFF: Right now, we are converting those engines as rebuilds occur. So, in other words, if we build the hours on the existing engines, we are looking to go to the newer technology in -- 18 months is a real narrow zone to try to -- MR. TOMB: How about -- it's five years to get down to the final limit, whatever that would end up being. Is that a reasonable time to convert over your fleet? MR. STEINHOFF: Provided we would be able to run out the engines that we have the money in now, if they would have enough hours on them to change. MR. TOMB: Do you think you would run that out or would you need more time to do that? MR. STEINHOFF: It depends on what units -- on the high-use production equipment, yes, we would be able to achieve that in five years. MR. TURCIC: What kind of rebuild cycle do you have? MR. STEINHOFF: It depends on the type of engine. Usually we do a light, in-frame build at about 7,000 hours. At around 10,000 hours, it would take a complete rebuild. Then again, it depends on the use of the equipment -- how many shifts do you run, how many days a week. MR. TOMB: Have you made any measurements in your mines at all relative to diesel levels? MR. STEINHOFF: Yes, we have. MR. TOMB: What kind of levels are you finding in your mines as they presently exist? MR. STEINHOFF: Right now -- and this is off the top of my head -- we are at as an average of about 850 micrograms per cubic meter. That's total carbon. That's not only half of the story. You want it all. That's all of it. You know, we are like any other mine. We have got hydraulic drills and you get oil mist from them. Diesel engines, you are going to get some lubricating oil going past the rings in that engine. Everybody knows that. We have got -- we have got carbonaceous shale -- MR. TOMB: So what method -- I missed it -- MR. STEINHOFF: NIOSH 5040. Open-faced cassettes. MR. TOMB: Open-faced cassettes? MR. STEINHOFF: Yes. MR. TOMB: Maybe I missed this, but what is the quantity of air that you have in your mine right now? MR. STEINHOFF: We are right at about 350,000 CFM, somewhere in that neighborhood. Because we are two and half squares miles, you look at only parts of the mine a time. MR. TOMB: Yes, I know. But you have a total of 350,000 available. Like, what do you take to your working places? MR. STEINHOFF: It depends. Depends on the break -- 40, 50, sometimes 60,000. MR. TOMB: And you are using auxiliary fans. MR. STEINHOFF: We are using auxiliary fans to direct off of main, off of your main ventilation stream. MR. TOMB: And that is blowing? MR. STEINHOFF: In general we do blow. The only time that we use an exhaust system, in general -- we use two fans. You nearly always have to have one blowing to mix the air and then another one exhausting to get good circulation. MR. TOMB: Have you equipped your equipment, any of your equipment with filters? MR. STEINHOFF: With a soot trap? MR. TOMB: Yes. MR. STEINHOFF: No. MR. TOMB: You haven't used that at all. From what I recall in your presentation, that was -- you feel it's a problem with you operating temperatures -- MR. STEINHOFF: Operating temperatures are a problem. The durability of the filters. A lot of manufacturers says, shoot, they are going to last you 10,000 hours. Some of those things are over $10,000 a piece. What if they only last you 1,000 hours? And I am at .45 zinc. I'm trying to manage a mine. It gets really difficult. MR. TOMB: I want to say that you have really given us a lot of good information. This is the really the kind of stuff that we need and hopefully -- maybe we could get some discussions with you, if you don't mind, relative to the estimator. If we knew specific information -- MR. STEINHOFF: I don't think the information is available from Ford Tractor and that's 1,500 horsepower. They are not going to tell me what a three-cylinder -- MR. TOMB: Yes, yes, I understand. MR. STEINHOFF: Well, I need to know that if I am going to use that thing. MR. TOMB: Yes, well, you can take worst-case estimate -- MR. STEINHOFF: I don't want to use worst case. We are talking about spending thousands of dollars -- millions of dollars. Let's just take an estimate and spend millions of dollars. We can't do that. MR. TOMB: Okay, I appreciate that. Any other questions? Thank you. MR. STEINHOFF: Thank you. MR. TOMB: Well, that concludes the presenters that have signed up to make presentations. Is there anybody else in the audience that would like to make a presentation at this time? Or make any additional comments? Okay, we are going to close the record at this time. I want to thank you, those of you who did make a presentation today. I think we have gotten some good comments in today. I commend you for participating in this hearing. I am going to close the record now, but we are still going to be here and I plan on probably coming back at 12:30 and we will reopen the record at that time in case anybody else shows up or any of you want to come back and make a presentation at that time. Thank you very much. (Whereupon, the hearing was recessed and the record closed until 12:30 p.m.) MR. TOMB: The record is now open and we will wait for 15 minutes to see if anybody else shows up for presentation. (Off the record.) MR. TOMB: We are going to come back at 3:00 and reopen the record again. (Whereupon, the hearing was recessed until 3:00 p.m.) MR. TOMB: We have again opened the record and there being no one here, we will now close the record for the day. (Whereupon, at 3:00 p.m. the hearing was concluded.) // // // // // // // // // // // // REPORTER'S CERTIFICATE CASE TITLE: Mine Safety and Health Administration HEARING DATE: May 27, 1999 LOCATION: Knoxville, Tennessee I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the Department of Labor, Mine Safety and Health Administration. Date: May 29, 1999 Laurie McClung Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005