1 1 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2 MINE SAFETY AND HEALTH ADMINISTRATION PUBLIC HEARING ON THE PROPOSED RULE FOR REFUGE 3 ALTERNATIVES FOR UNDERGROUND COAL MINES 4 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5 TUESDAY, JULY 29, 2008 6 7 RADISSON HOTEL 8 SALT LAKE CITY, UTAH 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 MSHA Public Hearing 2 July 29, 2008 3 PROCEEDINGS 4 MS. SILVEY: Good morning. My name is 5 Patricia W. Silvey, the Director of the Mine Safety 6 and Health Administration's Office of Standards, 7 Regulations, and Variances. I will be the 8 moderator of this public hearing on MSHA's Proposed 9 Rule for Refuge Alternatives for Underground Coal 10 Mines. On behalf of our Acting Assistant 11 Secretary, Richard E. Stickler, I'd like to welcome 12 all of you here today. 13 At this time, as we approach the 14 one-year anniversary of the Crandall Canyon 15 accident, I'd like to ask you, if you would, 16 please, pause with me in memory of the dedicated 17 miners and the heroic efforts of three rescuers, 18 including one of MSHA's own, who lost their life in 19 that unfortunate tragic accident. So if you would 20 pause now for a moment of silence. 21 Thank you very much. 22 At this point I'd like to introduce to 23 you the members of the MSHA panel and the MSHA 24 staff who were primarily responsible for--and I say 25 "responsible" in a positive way--for drafting the 3 1 proposal that is before you today. 2 On my right is Howard Epperly, who is 3 the team leader of the project, and he is with our 4 Approval & Certification Center of the technical 5 support office, MSHA's directorate of technical 6 support. To his right is Cherie Hutchison. Cherie 7 is a regulatory specialist in my office. And to 8 her right is Steve Turow. Steve Turow is with the 9 Labor Department's Office of the Solicitor. To my 10 left is Eric Sherer. Eric is with the Office of 11 Coal Mine Safety and Health. And to his left is 12 Ronald Ford, and Ron is an economist in my office. 13 And lest I not forget, or whatever, I'd like to 14 introduce you also to Larry Davey. Larry is in the 15 audience and he has also helped very significantly 16 on this project and he is actually an OSHA--some 17 people say OSHA--an OSHA employee who has been 18 detailed to MSHA to help us finish this in time. 19 As most of you know, this is the first 20 of four public hearings that we will have on the 21 proposal. The second one will be in Charleston on 22 Thursday; and then in Lexington, Kentucky on August 23 5th; and in Birmingham, Alabama on August 7th. The 24 comment period will close on August 18th, and as 25 was stated in the proposed rule, we must receive 4 1 your comments by midnight Eastern Daylight Savings 2 Time on that date. 3 You can view the comments on the 4 Agency's website at www.MSHA.gov under the link for 5 Rules and Regulations. We do have a few copies of 6 the proposed rule in the back of the room. 7 As many of you know also, the proposal 8 would implement the provisions of Section 13 of the 9 Mine Improvement and New Emergency Response, or the 10 MINER Act, of 2006 and would apply only to 11 underground coal mines. The MINER Act requires that 12 the National Institute for Occupational Safety and 13 Health conduct research on refuge alternatives. 14 NIOSH issued its report in January 2008 and MSHA's 15 proposed rule is based on the Agency's data and 16 experience, recommendations from the NIOSH report, 17 research on available and developing technology, 18 and the regulations of several states. 19 Before I start to discuss the proposal, 20 I want to reiterate--and it seems like I've done 21 this a number of times recently, because as many of 22 you know, we've had several proposals recently. 23 But I want to reiterate and underscore an important 24 mine emergency principle embodied by both MSHA and 25 the mining community and it is a principle of 5 1 longstanding--that in the event of a mine emergency 2 underground, the first line of defense is for the 3 miner to try to escape. Only if escape is 4 impossible would the protections of this rule be 5 needed. 6 Under the proposed rule, a refuge 7 alternative--under the proposed rule, a refuge 8 alternative would provide a protected, secure space 9 with an isolated atmosphere that creates a 10 life-sustaining environment to protect miners and 11 assist them with escape in the event of a mine 12 emergency. The proposed rule allows the use of 13 several types of refuge alternatives and includes 14 requirements that the manufacturer or third party 15 test the refuge alternative and its components 16 prior to obtaining MSHA approval. 17 Under the proposal, three types of 18 refuge alternatives would be allowed: A 19 pre-fabricated self-contained unit; a secure space 20 constructed in place; and materials pre-positioned 21 for miners to use to construct a secure space. 22 Some of the major provisions of the 23 proposal are: 24 Refuge alternatives would need at least 25 15 square feet of floor space and 60 cubic feet of 6 1 volume per person; 2 The capacity of refuge alternatives near 3 the working section would be the maximum number of 4 persons that can be expected to work in the area. 5 The capacity of refuge alternatives in an outby 6 area would be the maximum number of persons 7 assigned to work in that area; 8 Refuge alternatives would be located 9 between 1,000 and 2,000 feet from the working face 10 and where mechanized mining equipment is being 11 installed or removed. For outby areas, refuge 12 alternatives would be located within one-hour 13 travel distance; however, the operator may request, 14 and the district manager may approve, a different 15 location based on an assessment of risk to persons 16 in outby areas; 17 Refuge alternatives and their components 18 would need to sustain persons for 96 hours or 48 19 hours, if advance arrangements are made for 20 additional supplies from the surface; 21 Food, water, lighting, sanitation, first 22 aid supplies and a two-way communication system 23 would be needed; 24 Refuge alternatives approved by states 25 or by MSHA in the Emergency Response Plan prior to 7 1 promulgation of the final rule would be allowed 2 until replaced, or 10 years maximum; and refuge 3 alternative components approved by the state or by 4 MSHA in the ERP would be allowed until replaced, or 5 a 5 year maximum; 6 The location, capability, and capacity 7 of refuge alternatives would be addressed in the 8 written Emergency Response Plan. I might refer to 9 it as the ERP; 10 Training of miners to locate, transport, 11 activate, use, and maintain refuge alternatives 12 would be integrated into existing quarterly drills 13 and annual expectations training; 14 Pre-shift examinations of refuge 15 alternatives would be required; 16 Refuge alternatives would need to be 17 shown on mine maps. 18 MSHA has estimated the economic impact 19 of the proposed rule and has included a discussion 20 of the costs and benefits in the preamble to the 21 proposal and in the Preliminary Regulatory Economic 22 Analysis, which I might refer to as the PREA later. 23 The PREA contains estimated supporting data on 24 costs and benefits. 25 The preamble addresses the provisions in 8 1 the rule and includes a complete discussion of a 2 number of specific requests for comments and I 3 would like now to mention some of those requests. 4 These issues, requests for comments that 5 I'm mentioning now, I want to underscore the 6 importance of you paying attention to these and 7 providing us your comments before the time period 8 ends for you to submit comments. 9 The first is MSHA requests comments on 10 the estimated service life of pre-fabricated 11 self-contained refuge alternatives and the 12 estimated service life of components; 13 The proposed definition for "breathable" 14 oxygen as 99 percent pure oxygen, with no harmful 15 impurities; also the proposed minimum of 96 hours 16 of breathable air; 17 The sources of heat generation within a 18 refuge alternative, methods for mitigating heat 19 stress and heat stroke, and methods for measuring 20 heat stress on persons occupying refuge 21 alternatives. The proposed rule would require that 22 the apparent temperature within refuge alternatives 23 in use at full capacity not exceed 95 degrees 24 Farenheit. I would like to note that Footnotes 1 25 and 2 in the preamble should have cited to the 9 1 NIOSH report as the basis for the Agency's proposal 2 on apparent temperature; 3 Whether a requirement should be added in 4 the final rule that refuge alternatives be designed 5 with a means for miners to signal rescuers on the 6 surface to assure that rescuers on the surface 7 could be contacted if a communication system 8 becomes inoperable, and with a means for miners to 9 signal underground rescuers with a homing device to 10 assure that rescuers could detect the trapped 11 miners. 12 Proposed 75.1600-3 would require that a 13 refuge alternative provide a two-way communication 14 facility that is part of the mine communication 15 system which can be used from inside the refuge 16 alternative with an additional system as defined in 17 the operator's approved ERP. 18 At this point I'd like to clarify that 19 proposed approval requirements in Section 20 7.504(c)(1) should reflect the same requirements as 21 the safety standards in proposed 75.1600-3. 22 We ask for comment on the types, 23 sources, and magnitude of lighting needed for 24 refuge alternatives. Footnote 3 in the preamble 25 should have cited Pages 124 and 125 from the August 10 1 23rd, 1999 revision of the Department of Defense 2 standard. 3 And as I say all these, I'll make a few 4 clarifications for the preamble. You will note 5 that there will be a transcript of this hearing and 6 so you will see that specifically in the 7 transcript. 8 The proposed minimum space and volume 9 requirements and the feasibility of using certain 10 types of refuge alternatives in low coal mines; 11 The proposed minimum flow rate of 12.5 12 cubic feet per minute of breathable air for each 13 miner; 14 We also ask for comments on the proposed 15 setting for pressure relief and whether a higher 16 pressure relief should be required. The proposal 17 would require that fans or compressors provide 18 positive pressure and an automatic means to assure 19 that the pressure is relieved in the refuge 20 alternative at 0.25 psi above mine atmosphere 21 pressure; 22 The proposed requirement for requiring 23 carbon monoxide detectors for compressors or fans 24 at the surface to provide automatic and visual 25 alarms if carbon monoxide levels in supplied air 11 1 exceed 10 parts per million; 2 The visual damage that would be revealed 3 during pre-shift examinations. The Agency is 4 concerned with the feasibility and practicality of 5 having to visually check the status of refuge 6 alternatives without having to enter the structure 7 or break the tamper-evident seal; 8 The proposed requirement for locating 9 refuge alternatives in inby areas, as well as the 10 alternate provision discussed in the preamble that 11 would allow that refuge alternatives in these areas 12 be located up to 4,000 feet from the working face, 13 depending on mine-specific conditions, if they are 14 connected to the surface with boreholes; 15 The proposed approach to the capacity of 16 refuge alternatives in inby and outby areas and the 17 proposed approach to locating refuge alternatives 18 in outby areas, including a minimum and maximum 19 distances; 20 Whether the final rule should contain a 21 requirement that advance arrangements specified in 22 the ERP include a method for assuring that there 23 will be a suitable means to connect the drilled 24 hole to the refuge alternative and that the 25 connection be made within 10 minutes; 12 1 The proposed training requirements for 2 persons assigned to examine, transport, and 3 maintain and repair refuge alternatives and 4 components and whether it would be more appropriate 5 to include this training under the training 6 provisions of Part 48; 7 And finally, the proposed approach to 8 annual expectations training for miners in the 9 construction, where applicable; the activation; and 10 use of refuge alternatives and components. 11 Comments should address the proposed strategy and 12 the proposed elements of the training. 13 The Agency is also soliciting comments 14 on the proposed information collection 15 requirements. Please provide comments on all data 16 and assumptions the Agency used to develop 17 estimates of information collection burdens, as 18 well as estimates of costs and benefits. 19 As you address these provisions--and I 20 cannot underscore the importance of this--either in 21 your testimony to us today or in your written 22 comments, please be as specific as possible, 23 including: alternatives, rationale, safety and 24 health benefits to miners, technological and 25 economic feasibility, and data to support your 13 1 comments. The Agency will use this information to 2 help evaluate the requirements in the proposal and 3 produce a final rule that will improve safe and 4 health for underground coal miners in the event of 5 a mine emergency in a manner that is responsive to 6 the needs and concerns of the mining public. 7 This hearing, as many of you know, will 8 be conducted in an informal manner and formal rules 9 of evidence will not apply. The panel may ask 10 questions of the witnesses and the witnesses may 11 ask questions of the panel. MSHA will make a 12 transcript of the hearing available on the Agency's 13 website within one week of the hearing. And I 14 underscore that we will make that transcript 15 available. As most of you know, time is of the 16 essence in developing the final rule, which must be 17 finalized by December 31, 2008. 18 If you wish to present written 19 statements or information today, please clearly 20 identify your material and give it to the court 21 reporter. You may also submit comments following 22 this hearing by any other methods identified in the 23 proposal. We ask that everyone in attendance sign 24 the attendance sheet, and I would ask that if we 25 have people here who are prepared to speak, if you 14 1 have a hard copy or electronic version of your 2 presentation, we would appreciate it if you would 3 provide it to the court reporter. 4 Please begin by clearly stating your 5 name and organization and spelling your name for 6 the court reporter. This will help assure that we 7 have an accurate record. 8 At this point we will take our first 9 speaker, assuming that we have one. So does 10 anybody wish to speak? Anybody wish to speak. 11 Okay. If nobody wishes to speak, then, 12 I'm going to call a recess for about--until 10:00 13 o'clock. But if somebody comes in before 10:00 14 o'clock, then we will go back on the record. 15 Recess until 10:00 o'clock. 16 (A recess was taken from 9:21 a.m. to 10:00 a.m.) 17 MS. SILVEY: At this point we will 18 reconvene the Mine Safety and Health 19 Administration's public hearing on the Agency's 20 Proposed Rule on Refuge Alternatives for 21 Underground Coal Mines. 22 Inadvertently, I did not introduce Leah 23 Davis in the back of the room, and so I should 24 introduce Leah. Leah is here today and she is in 25 our rulemaking docket office back in Arlington and 15 1 has been very instrumental in helping us set up 2 these hearings and also when your comments come in, 3 doing all the things that have to be done with the 4 comments and the transcript. So I'm sorry, Leah. 5 Okay. Now, before we ask our first 6 person to comment, if you want to refer to them as 7 informal comments/questions or whatever, I would 8 like to state that--and I stated this in my opening 9 statement, that we are dealing with, in some ways, 10 a developing technology. And when you are dealing 11 with a developing technology, that's kind of the 12 way I think I would refer to refuge alternatives/ 13 refuge changes, and with that oftentimes you will 14 have questions, you'll have comments, questions, 15 concerns, and that's to be expected. But I want to 16 underscore to everybody here today--we've had sort 17 of off-the-record comments and people have had 18 questions that they've asked, if you would please-- 19 because we won't know your comments or your 20 questions or your concerns if you don't include 21 them in formal comments to us and send them to us 22 in Washington so that we can include them in the 23 record. I mean, that's the whole purpose of a 24 rulemaking process, for everybody to see, for other 25 people to see your concerns, that's why we are 16 1 having this hearing today. 2 So if you would make sure you send all 3 your comments in to us. I mean, if you have a 4 question about how we're going to interpret 5 something, then send us in your recommendation, "We 6 thought you said this. But I recommend"--"we think 7 you said this and our recommendation is that you 8 should have said this." I mean, if I can help 9 translate into what--but make sure you include--if 10 you disagree with us, you include your 11 recommendation to us in your comment, so we get 12 that and we have that to react to. 13 I'm glad that you all are here and 14 you're discussing some of these things, because if 15 we don't hear it, then we won't be able to go back 16 and react to it. Some of the things we will be 17 able to respond to you today affirmatively or 18 negatively in a clear-cut way, some of the things 19 we may not be able to. But we will promise you 20 that before the rulemaking process is over you will 21 get a response from us. And I know to some people 22 that may not be the best response, because--what 23 I'm talking about is in the final rule that we 24 publish on December the 31st. But to the extent 25 that, you know, people have a need to know things, 17 1 this is just what happens sometimes when you have a 2 rulemaking that you've got to do and you still have 3 people yet in the process of developing certain 4 things and sometimes you run up on this and we're 5 going to do--as an agency, we're going to do the 6 best we can with telling you our expectations and 7 at the same time informing you where you do have 8 questions, but asking you to do likewise with us 9 and to get your recommendations and your concerns 10 to us. 11 At this point I think we have somebody 12 who wanted to testify, to come forward. So would 13 you do so, let me see, Mr. Tom Daily? 14 MR. McKENNA: Tom's not here. 15 MS. SILVEY: Okay. Well, the other 16 gentleman. 17 MR. McKENNA: I guess we've submitted 18 our questions formally already, made comments. Do 19 we need to re-ask them here? 20 MS. SILVEY: Well, I just wondered, 21 because somebody said they wanted to ask us some 22 questions, and I said, "Would you come and do it on 23 the record?" I mean, we can't answer it--if you 24 have any questions that you want to ask us, we 25 can't answer those questions short of doing it in a 18 1 public forum. So if you do have questions that you 2 want to ask us, please come forward. 3 MR. McKENNA: Okay. Sure. 4 MS. SILVEY: Let me say at the outset 5 that I'm not trying to put anybody on the spot at 6 all. I mean, I recognize that, you know, a lot of 7 times people are not--some people may not feel 8 comfortable in these forums, but I think all we 9 want to do is to get the best record that we can. 10 MR. McKENNA: Sure. 11 MS. SILVEY: Thank you. 12 MR. McKENNA: My name is Tom McKenna, 13 M-c-K-e-n-n-a. I'm with Micropore, Inc., 14 M-i-c-r-o-p-o-r-e. 15 I guess the question--I understand that 16 you have tested the components and via NIOSH MSHA 17 has come up with the rule that you've made, 18 proposed rule, and are grandfathering all those 19 products that were tested. There are a lot of new 20 specifications in the proposed rule. Are those 21 grandfathered products able to be sold against the 22 new standards is the question? 23 MS. SILVEY: Yeah, that's sort of a 24 general question. 25 MR. McKENNA: You bet. 19 1 MS. SILVEY: I'd like you to be more 2 specific. At that point, though, let me just say 3 what I said in the opening statement, and I will 4 say that now, I said that refuge alternatives that 5 were approved by the states--and I think, and 6 somebody correct me if I'm wrong, I think the only 7 states that have approved--the only state that has 8 approved refuge chambers is West Virginia. Refuge 9 chambers that are approved by the state or approved 10 by MSHA in the Emergency Response Plan prior to the 11 promulgation of this rule would be accepted under 12 the new rule for the time period of the 10 years 13 for refuge alternatives and 5 years for components. 14 Now, if you have a more specific 15 question, I'd like--I'm not quite following where 16 you're going. 17 MR. McKENNA: Okay. Sure. 18 MS. SILVEY: Yes, please. 19 MR. McKENNA: We manufacture CO2 20 absorbant and the previous tests were done to a .5 21 percent maximum standard. The new proposed 22 regulation goes up to 2 and a half percent with a 23 1 percent time-weighted average. That creates an 24 entirely different scenario for the use of the CO2 25 absorbant, and so my question specifically would 20 1 be--well, there's two questions actually. 2 You've done cost estimates, I think, 3 based on--I don't know whether it was the old 4 standard or the new standard, but the cost will 5 change dramatically in the lower direction based on 6 the new specification. 7 MS. SILVEY: We did the cost estimates 8 on the new standards. 9 MR. McKENNA: Is that right? Okay. 10 Okay. 11 MS. SILVEY: Yeah, yeah. Okay. 12 MR. McKENNA: Okay. That's a good 13 thing to know. 14 Okay. So now there's an ability to use 15 the same products that are already in mines that 16 have been sold and installed, use them to a new 17 higher CO2 level standard. Is it possible to sell 18 those same products with a new use instruction as 19 opposed to the old .5 percent use instruction? 20 MS. SILVEY: Quite honestly, I'm not 21 sure we can give you a yes or no answer on that 22 today. I think what's more important is that we 23 get your specific recommendation for what you would 24 recommend that we do with respect to the very 25 question that you asked me. 21 1 MR. McKENNA: Okay. 2 MS. SILVEY: If you would send that to 3 us. 4 MR. McKENNA: Okay. 5 MS. SILVEY: Excuse me a minute. 6 MR. McKENNA: Sure. 7 (Off-the-record discussion.) 8 MS. SILVEY: I think I'm back where I 9 was before. If you would put your comment in to 10 us with exactly what you said, the conditions under 11 which your--the conditions under which your product 12 was approved by the specific parameters and your 13 recommendation. 14 And I'll say this to everybody here 15 today: That's why we're here today. This is a 16 proposed rule and we are--it kind of goes along 17 what I said before about this, the state of the art 18 of refuge alternatives, we are looking for comments 19 and looking for whatever we can do to make this the 20 best rule that we can do and the best in terms of 21 for miners' health and safety and also the best in 22 terms of the best rule to be implemented. So if 23 you would do that, I think we would be very 24 grateful, because I think I do have your comments 25 in front of me now. 22 1 MS. McKENNA: Yeah, they should be 2 there. 3 MS. SILVEY: What you just said to me 4 right now, I'm not sure-- 5 MR. McKENNA: We left that one out. 6 MS. SILVEY: I was going to say: I 7 can't get that one out of these comments. I've 8 been looking back and forth, and I said, "Is that 9 in here somewhere or what?" 10 MR. McKENNA: No, no, we left that one 11 out. 12 MS. SILVEY: Yeah, I got the others. 13 And so I will--for example, I'll look at them and 14 I'll do one that you didn't even ask about, but the 15 one that you asked--and I say this to everybody, 16 the one that you asked about, the time maximum, we 17 expressed it in the public hearing statement that 18 we asked for comments on the maximum life of the 19 refuge alternative and the components and you asked 20 us a question on that, and you said, "Can the 21 component life be extended to 10 years if a 22 manufacturer can demonstrate acceptability through 23 past experience," which is a good comment. 24 I will say to you on that: You provide 25 your recommendation on the service life, everybody. 23 1 What I'm saying to Mr. McKenna I say to everybody. 2 You provide your recommendation to us and why. 3 Remember when I gave my opening statement, I said 4 to everybody, "Please include your rationale"? So 5 provide us your recommendation and why and then we 6 will take that and try to craft the best rule we 7 can. 8 MR. EPPERLY: When those numbers were 9 put together, the 10 and 5, it was based on, like 10 Pat mentioned in the opening remarks, based on some 11 of the limited history--there's not a lot of 12 history with these new alternatives--and based on 13 research and some of the information provided by 14 the manufacturers. As Pat mentioned, if you can 15 demonstrate and tell us something you think is 16 different, then we'll certainly look at that. We 17 welcome those kind of comments. 18 MR. McKENNA: Okay. We'll go ahead and 19 submit that. 20 I do have one followup question also. 21 Will MSHA be providing approval numbers or 22 information on the grandfathered products? 23 MS. SILVEY: I'm not sure we have 24 thought about that. 25 MR. SHERER: That's a good question. 24 1 MS. SILVEY: It is. As you can see-- 2 people don't usually catch me too much off guard. 3 I'm not sure on the grandfathered products. Well, 4 we will be accepting them, we said that. Put that 5 in your comment, too, about how the procedure for 6 getting-- 7 MR. McKENNA: The process. 8 MS. SILVEY: Right. For getting 9 grandfathered products into the stream of whatever. 10 MR. McKENNA: Okay. Great. 11 MS. SILVEY: All right. Thank you. 12 MR. McKENNA: Thank you. 13 MS. SILVEY: Okay. Thank you very 14 much. 15 Okay. Thanks. Anybody else wishes to 16 ask questions, comment? Yes, please. 17 MR. SHOFF: Good morning. My name's 18 Wesley Shoff, I'm with Strata Safety Products. And 19 that's spelled S-h-o-f-f. Okay. 20 Strata will be submitting written 21 comments before the deadline, of course. But in 22 order to help prepare those, I'd like to ask a 23 couple of questions maybe just for clarification, 24 if you would. 25 I think I heard you say that any unit 25 1 that is approved by a state or in an operator's ERP 2 is approved under the proposed--or is an approved 3 chamber until such time that its end of its service 4 life is recommended by the manufacturer. 5 MS. SILVEY: I didn't say--what did you 6 ask me about; a component or refuge alternative? 7 MR. SHOFF: Well, that may be my next 8 question. 9 MS. SILVEY: Let's take the first one. 10 MR. SHOFF: The refuge alternative. 11 MS. SILVEY: Okay. What you heard me 12 say was--you were right up until you got to the 13 last phrase, but I'll just try to repeat it here. 14 That a refuge alternative that was approved by the 15 state or in an operator's approved ERP--by MSHA in 16 an operator's approved ERP would be accepted for 17 the maximum--for the estimated service life or a 18 maximum of 10 years. I think you said for the 19 life as recommended by the manufacturer, we didn't 20 say that. We said for the estimated service life 21 or a maximum period of 10 years. 22 MR. SHOFF: Okay. And that is defined 23 as the alternative, am I correct, and not the 24 component? 25 MS. SILVEY: That's the alternative, 26 1 right. 2 MR. SHOFF: Okay. So that leads to my 3 next question. Would the interpretation of what is 4 a component and what is the alternative--for 5 instance, from a pre-fabrication-type unit on an 6 alternative, the box itself is part of the 7 alternative as a group, but is that a component? 8 MS. SILVEY: The box itself is-- 9 MR. SHOFF: The pre-fabricated box that 10 houses, if you will, all the components. 11 MS. SILVEY: No, I follow you. I do 12 follow you, yes. 13 MR. SHOFF: Okay. You know, if one 14 thinks about a steel box in comparison to a 15 continuous miner, it has a rebuildable, you know, 16 undefined life. Would that box be considered a 17 component of the alternative? And if such, then 18 you're limiting that to a 5-year life span. 19 MS. SILVEY: I saw where you were 20 going. 21 As a point of clarity, I think we have 22 four components in the proposal. One was the 23 structural component; the harmful gas removal 24 component; and the air monitoring component; and 25 breathable air, those were the--well, those were 27 1 the four components. Those were the four 2 components. Now, I say that as a point of 3 clarification about the four components. So I'll 4 let Howard answer you. I'll let Howard answer that 5 other part of your question. 6 MR. EPPERLY: The 10 years--the 10 years 7 referred to the alternative itself, which would 8 encompass that shell or part of that chamber. We 9 refer to them as alternatives. When you say 10 10 years, that was the main alternative and then any 11 component inside or part of that. 12 MR. SHOFF: So even though you say that 13 the--one could interpret the steel box the 14 structural component, but you're inferring that 15 that is part of the alternative and it would indeed 16 have a 10-year--at this time a 10-year life. 17 MR. EPPERLY: Right, yeah. 18 MS. SILVEY: But we appreciate your 19 comment on that. See, that's why it is important 20 to have this, and so everybody's comments--I mean, 21 we'll make sure that we try to make sure all of 22 this is clarified in the final rule. 23 MR. SHOFF: Next I would like to see if 24 you all could give us some reasoning on why the 25 airlock in a unit is excluded from the space 28 1 calculations. And the reason I question that is in 2 the design of an enclosure, be it an inflatable 3 unit or a steel unit, the airlock size is maximized 4 in order to get the total occupancy in as quickly 5 as possible. So in many cases, that airlock space 6 takes up a large portion of the available area. If 7 we're going to exclude that, then it gives some 8 limitations to what is defined as "usable area" in 9 the tent or in the steel chamber. I think in many 10 cases the standard operating procedure is to leave 11 that airlock area open when you reach maximum 12 occupancy and nobody else is going in and out for a 13 cooling or a heat dissipation purpose, you need 14 that--you know, that area is calculated or included 15 in those calculations. So I guess my question, so 16 that we can further prepare comment, is: What is 17 the consideration for excluding the airlock? 18 MS. SILVEY: Okay. Let me answer that 19 before Howard or Eric do. 20 You have given me part of your comment 21 right now, I believe. I think part of what I hear 22 you saying is your recommendation as to what--even 23 though we proposed a certain thing relative to the 24 space requirement, your recommendation is that the 25 determination of the space requirement be 29 1 different, and so that's what you should include in 2 your comments; i.e., the airlock be included in the 3 space requirement. 4 I think in terms of what we can 5 answer--you asked, "Why was it excluded?" I can 6 put that in another way and say, "Why did we 7 propose the space requirement that we did?" I 8 think we stated that we proposed the space and 9 volume requirement that we did, we took into 10 consideration the recommendations of NIOSH. 11 Although we were not--we'd like to say we were 12 consistent with NIOSH, but not the same as NIOSH. 13 We asked the question about whether these space and 14 volume requirements were, you know, practical, for 15 an example, in low coal in low seam height, and we 16 asked for overall comment on the space and volume 17 requirements to determine, you know, where we 18 should go in the final rule. 19 So I think in terms of where we are 20 today, that's how we can--that's what we can answer 21 in terms of your question, but not exactly why the 22 airlock was excluded. Although I think we all 23 probably understand your point there. 24 MR. SHOFF: And last, when we talk 25 about new units or expanding mines or new mines, 30 1 understanding what you've said about the 2 grandfathering clause for existing units, what is 3 anticipated is the timeline for--say an operator 4 needs additional units, what is he going to be, I 5 guess, allowed to purchase by the rule after the 6 effective date? Just as an example--I know I'm 7 having a difficult time explaining it--but if it 8 comes next September and an operator needs four 9 units-- 10 MS. SILVEY: September '08? 11 MR. SHOFF: No. It's September of '09 12 or middle part of '09, we'll say. 13 MS. SILVEY: Okay. 14 MR. SHOFF: And an operator needs new 15 units, if existing units as we have today that fall 16 under the grandfather clause are available for 17 immediate purchase, are they going to be acceptable 18 to use or will chambers, then, under the new 19 approved rule be required? 20 MS. SILVEY: That's sort of an easy 21 one. Yes. That's sort of an easy one, because 22 you've given me August of '09, the grandfather is 23 acceptable until the date of the new rule, which 24 would be December--if I'm lucky--if we're lucky, it 25 will be December of '08, so then any new units 31 1 would have to meet the requirements of the new 2 rule. 3 MR. SHOFF: So anything purchased after 4 that effective date? 5 Now, the proposed rule has a statement 6 that they expect the effective date of the rule to 7 be delayed to allow operators to develop new ERPs 8 and training plans. 9 MS. SILVEY: Probably there would be 10 some--I don't know. We did say that? We're good. 11 There probably would be some delayed effective date 12 to allow that to happen, right, but I don't know 13 what it would be. And you know, people-- 14 MR. SHERER: That's something you can 15 comment on. 16 MS. SILVEY: Yeah, you can comment on 17 that. 18 MR. SHOFF: All right. Thank you very 19 much. 20 MS. SILVEY: Thank you. Anything else? 21 We said that in the proposal. But if 22 anybody has any comment on--and Eric said that--on 23 what a delay--the suggestion for a delayed 24 effective date, you know, we would welcome your 25 comment, recognizing that a delayed effective date 32 1 can't be forever. That was a little humor. 2 MR. SHOFF: May I ask one more? 3 MS. SILVEY: Yes. 4 MR. SHOFF: I'm sorry. 5 MS. SILVEY: No, no, don't be sorry. 6 MR. SHOFF: On that same lines-- 7 MS. SILVEY: Can you come up just for 8 the reporter? 9 MR. SHOFF: Sorry. 10 Along those same lines, would there be 11 any affect on units that are yet undelivered that 12 were purchased or ordered before the effective date 13 of the new rule? 14 MS. SILVEY: Well, I mean, they would 15 be treated--any undelivered as of December 31st, 16 but ordered, they would be treated as under the 17 grandfather. I mean, because, look, I can ask you-- 18 when you say any purchase, but not delivered, 19 because, for an example, if I were to ask everybody 20 in here today, I'm sure that for the most part 21 there aren't a lot of them in the mines today, but 22 a lot of them are on order. Is that a fair-- 23 MR. SHOFF: I would assume so, yes, 24 ma'am. 25 MS. SILVEY: Okay. That's my point. 33 1 Okay. Yes. Okay. 2 MR. SHERER: There is a reasonable 3 component, so we expect that people don't-- 4 THE REPORTER: I'm sorry. I can't hear 5 you. 6 MR. SHERER: What's that? 7 THE REPORTER: I can't hear you. 8 MR. SHERER: There is a reasonableness 9 expectation. So we would want valid uses. For 10 example, if you're going to build a mine 10 years 11 from now, we wouldn't accept the purchase order for 12 that. 13 MR. SHOFF: Okay. I understand. Thank 14 you very much. 15 MS. SILVEY: I think I cleared up, 16 though, when you asked me about a new mine, that 17 the new mine would be covered by the new rule. 18 Yeah, okay. 19 Anybody else? Any more comments or 20 questions? If you would just go off the record for 21 a minute. 22 (Off-the-record discussion.) 23 MS. SILVEY: Any more? Any more 24 comments, questions? Well, I think that we will 25 recess now until--why don't we say 11:00 o'clock. 34 1 Yeah, about 11:00 o'clock, and then we'll determine 2 where we'll proceed at that point. We'll recess 3 until 11:00 o'clock. 4 (A recess was taken from 10:28 a.m. to 11:00 a.m.) 5 MS. SILVEY: At this point I would like 6 to reconvene the Mine Safety and Health 7 Administration's public hearing on the Agency's 8 Proposed Rule on Refuge Alternatives for 9 Underground Coal Mines. At this point I would like 10 to ask if there's anybody here that would like to 11 make a comment, ask a question or otherwise. Yes, 12 sir. Mr. Tatton. 13 MR. TATTON: Thank you for the 14 opportunity. I'm Randy Tatton and I represent 15 Modern Mine Safety Supply. And, actually, some of 16 the questions that Mr. Shoff asked have kind of 17 prompted me to maybe want to expand just a little 18 bit further with another question. 19 We go back and we talk about a metal 20 chamber, or the alternative, being something that 21 would be okay for the 10 years, I think that's what 22 I heard the committee say. But if that particular 23 structure is of such nature that it meets all the 24 requirements of the current, or at that time the 25 newly proposed rule which at that time would be 35 1 final, does that become a throwaway at 10 years or 2 if it can be refurbished or it doesn't have any 3 problems structurally, can it be used for a time 4 beyond that? We don't see any reason why it 5 wouldn't be. I mean, it's simply a metal box. 6 MS. SILVEY: Okay. That's a good 7 question. In the proposed rule, which would relate 8 to new alternatives, we proposed an estimated 9 service life of 10 years for the alternative and 5 10 years for the components. And now I'm talking about 11 new ones, not the grandfathered ones. At the same 12 time, we asked for comment on the estimated service 13 life that we included in the proposal. So I would 14 suggest to you, Randy, the same thing I did to--I 15 know him. I'm almost 60. Anyway, that Wesley-- 16 MR. SHOFF: I'm almost 50 and I can't 17 remember it either. 18 MS. SILVEY: I was trying to think of 19 the first name. 20 The same thing that I suggested, because 21 I hear in your comments some of what you're saying, 22 and what I would suggest is that if you have 23 alternatives, if you have recommendations that are 24 alternatives to the estimated service life that we 25 included in the proposal, either for the estimated 36 1 service life of the alternative or of the 2 components, that you include that in your comments, 3 your recommendations, your rationale, your 4 suggestions. Some of what you were saying to me 5 now, I mean, I hear some of what you're saying, and 6 that--so that if you think that the estimated 7 service life could be extended beyond the 10 years. 8 MR. TATTON: Okay. And we'll certainly 9 do that. But, you know, while I'm on the record 10 here, I'll also just expand and say--for example, a 11 carbon dioxide scrubber, which would certainly be a 12 component, and at least the way I understand the 13 proposal now, that may be something that would only 14 be good for 5 years, but it's nothing more than a 15 metal box, solid, hard components. And, again, that 16 may be another one that there's really no reason to 17 limit the life of that to 10 years. 18 Now, certainly materials that are in 19 that may be susceptible to deterioration, some of 20 those things may need to be refurbished and 21 changed, but I just don't see any sense in throwing 22 away a solid metal carbon dioxide scrubber just 23 because it happens to be 5 years old. And so 24 we'll make those comments, they'll be reflected as 25 well. 37 1 MS. SILVEY: Okay. For people in here 2 who are manufacturers, all people in here who are 3 manufacturers or represent manufacturers, I'm sure 4 as--I mean, I know that you can buy a toaster and 5 see it on there. I'm sure that you put in a 6 recommended service life for your units, either the 7 units or the components, and I assume that you've 8 done that after some use, some experience, some 9 testing or all of the above. So, you know, your 10 comments could be reflective of what your 11 experience is. 12 MR. TATTON: Okay. Thank you for the 13 opportunity. 14 MS. SILVEY: Thank you. 15 Anybody else? Any more questions or 16 comments? 17 At this time, then, I'm going to--we 18 will stop the hearing until 1:30, we will come back 19 at 1:30, and depending on whether somebody--what 20 happens at 1:30, then we'll proceed then. But at 21 this point I will go off the record until 1:30. 22 Thank you. 23 (A recess was taken from 11:04 a.m. to 1:32 p.m.) 24 MS. SILVEY: At this time we will 25 reconvene the Mine Safety and Health 38 1 Administration's public hearing on the Proposed 2 Rule on Refuge Alternatives for Underground Coal 3 Mines. 4 At this point is there anybody else who 5 wishes to make a comment? Anybody in the audience 6 who wishes to make a comment? 7 Before I conclude this hearing I--and 8 you know, as I said when I made the opening 9 statement, that we will post the comments on MSHA's 10 website and so please if you--we've gotten a couple 11 of comments so far and I thought that--one of the 12 issues raised in one of the comments, I'd like to 13 bring to your attention, and if you care to comment 14 on it before the comment period closes, please do 15 so. It was a comment from a manufacturer and he 16 noted that while we had included a proposed 17 requirement for an internal apparent temperature of 18 95 degree Farenheit, we didn't include anything in 19 the proposal on an external ambient temperature in 20 the mine, and this commenter thought that that was 21 an important element--would be an important element 22 in the proposed rule. So I would ask you to read 23 the comment in detail and then if you have any 24 recommendations, any comments, any further concerns 25 that you might want to provide to us on that issue, 39 1 then I would ask you to do so. If I'm not 2 mistaken, that particular commenter said that he 3 would be at the public hearing in Birmingham and he 4 would make a public statement at that hearing. 5 So with that, anybody else? 6 I want to say on behalf of MSHA that I 7 do appreciate everybody who came to this hearing 8 today. You know it's important. I appreciate the 9 people who spoke. But it's also important to us 10 that you felt the importance of the rulemaking that 11 you attended today. Although you may not have 12 spoken. And I know some of you because you've been 13 in many MSHA's rulemakings before, and I know that 14 before this comment period is over we will be 15 getting comments from many of you today. So I 16 encourage you to provide further comment on any and 17 all the issues that may affect you or that you may 18 have an interest in. As I said earlier, it is 19 only with your full participation and listening and 20 hearing from you on all the issues raised in the 21 rulemaking that we can craft the best rule that we 22 can. 23 With that, then, as you know, we will 24 have another hearing in Charleston on Thursday; the 25 third one in Lexington on the following Tuesday; 40 1 and the fourth and final hearing in Birmingham on 2 the following Thursday. So, again, we appreciate 3 your participation. 4 One final thing: I cannot underscore 5 the importance of timing with this rule. As I said 6 earlier, we must deliver a final rule by December 7 31st, '08. We're going to do our best to try to do 8 that, but knowing that, then, you all know for us 9 to be able to do that, time is going to be of the 10 essence with this rule. 11 With that, then, the Mine Safety and 12 Health Administration's public hearing on the 13 Agency's Proposed Rule on Refuge Alternatives is 14 concluded. Thank you very much. 15 (Proceedings concluded at 1:37 p.m.) 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 .