In the Matter of:              )
                               )
PUBLIC HEARING ON MSHA'S       )
EMERGENCY TEMPORARY STANDARD   )
FOR EMERGENCY MINE EVACUATIONS )

  

Pages:  1 through 124

Place:  Lexington, Kentucky

Date:   April 26, 2006

	DEPARTMENT OF LABOR
	Mine Safety and Health Administration

In the Matter of:              )
                               )
PUBLIC HEARING ON MSHA'S       )
EMERGENCY TEMPORARY STANDARD   )
FOR EMERGENCY MINE EVACUATIONS )

			Sheraton Suites-Ballroom A&B
			2601 Richmond Road
			Lexington, Kentucky 

			Wednesday
			April 26, 2006

		The hearing in the above-entitled matter was

convened, pursuant to Notice, at 9:08 a.m.

		BEFORE:  Patricia W. Silvey,
		         Moderator

		APPEARANCES:

		PHUC PHAN
		ROBERT SNASHALL
		JEFFERY KRAVITZ
		PATRICIA W. SILVEY
		ERIC SHERER
		THOMAS McLEOD
		KEN SPROUL
		DEBRA JANES

		SPEAKERS:

		EDGAR OLDHAM
		BILL CAYLOR
		TONY OPPEGARD
		MARK WATSON
		PEARL FARLER
		KEN RUSSELL
		MICHAEL JOSEPH
		TIM BAKER

	P R O C E E D I N G S
	(9:08 a.m.)
		MS. SILVEY:  Good morning.  My name is Patricia W. Silvey.  I am the Acting Director of the Office of Standards, Regulations, and Variances for the Mine Safety and Health Administration.  I will be the moderator of this public hearing on MSHA's emergency temporary standard, or ETS, for emergency mine evacuations.
		At this moment, I'd like to ask you if you would join me and if we could have a moment of silence in honor of the miners who lost their lives at the Sago Mine accident and the Aracoma Alma No. 1 Mine, and also the miners who were injured in those accidents, and for all the miners who have died so far this year and have been injured, and for the miners who have lost their lives working in this nation's mines from the beginning.  So, if you would join me in a moment of silence?
			(Moment of silence.)
		MS. SILVEY:  Thank you.  On behalf of Secretary of Labor Elaine Chao, Acting Assistant Secretary of Labor for the Mine Safety and Health Administration David G. Dye, I want to welcome all of you here today.  Also attending this public hearing are several individuals from MSHA who are on the committee drafting this rule.  And they are, to my left:  Eric Sherer of the Coal Mine Safety and Health Division and Chair of the rule making committee; Jeffery Kravitz, Chief of Mine Emergency Operations and MSHA's Pittsburgh Safety and Health Technology Center and the Office of Technical Support; Thomas -- oh, I just, excuse me.  Jeffery Kravitz, by the way, is to my right.  I was going down to my left and looking at this.  And Tom McLeod to Eric's left, and Tom McLeod is with our Educational Policy and Development Office in Arlington.  Ken Sproul who is with our Office of Technical Support, Quality Assurance Division.  
		Now, to Jeff's right, Robert Snashall who is our Lawyer on the committee from the Department of Labor, Office of Solicitor; Mr. Phan who is the Economist from my office, and Debra Janes, who is the Regulatory Specialist from my office.
		This is the second public hearing, second of four hearings on the emergency standard.  The first hearing was held on Monday in Denver, Colorado.  The third hearing will be this Friday in Arlington.  And the fourth hearing will be in Charleston, West Virginia on May 9th.  I think we have copies of the Emergency Temporary Standard, as well Volumes 1 and 2 of the Compliance Guide that this should address and questions that have been raised thus far in this rule making.
		As some of you know who participated in hearings with us before, the purpose of these hearings is to receive information from the public that will help us evaluate the requirements contained in the emergency standard and produce a final rule that promotes safe and effective evacuation of miners during mine emergencies.  We will also use the data and information gained from these hearings to help us craft a rule that responds to the needs and concerns of the mining public so that the provisions of the emergency standard can be implemented in the most effective and appropriate manner.
		We publish the ETS in response to the grave danger to which miners are exposed during underground coal mine accidents.  The ETS includes requirements in four areas.  The first area, immediate accident notification, is applicable to all underground and surface mines, both coal and metal/non-metal.  The three other areas covered by the rule (self-contained self-rescuer storage and use, evacuation training, and installation and maintenance of lifelines) apply only to underground coal mines.  During these four hearings, we will solicit public input on these issues.  The hearings will give manufacturers, mine operators, miners and their representatives, and other interested parties an opportunity to present their views on these issues.
		MSHA issued the emergency standard on March 9th in response to the tragic accidents at the Sago Mine on January 2nd and the Aracoma Alma No. 1 Mine on January 19th.  MSHA determined that better notification, safety, and training standards are necessary to further protect miners when a mine accident takes place.
		The ETS was issued in accordance with Section 101(b) of the Federal Mine Safety and Health Act of 1977.  Under Section 101(b), the emergency standard is effective upon publication until superseded by a mandatory standard.  And under the Mine Act, the mandatory standard must be published within nine months of the publication of the emergency standard.  The emergency standard also serves as the proposed rule.
		As stated earlier, we will use the information provided by you to help us decide how best to craft the final rule.  In addition to the provisions of the emergency standard, we are also considering the following issues and seek further information from you.  And we are considering the following issues to help further clarify the provisions of the emergency standard.  As you address these issues, either in your comments to us today or those sent to us in Arlington, please be as specific as possible with respect to impact on miner safety and health, mining conditions, and feasibility of implementation.
		Additional issues:
	1.  Should miners have the ability to tether themselves together during escape through smoke-filled environments?  If so, what length of tether between miners should be required?  Should a miner's tether be capable of clipping easily to another's so that any number of miners could be attached together to work their way out of the mine?  How should the tether be attached to the miners' belts?  Or should there be a place other than the miners' belts to attach the tether?  Should the tether be constructed of durable and/or reflective material?  Where should the tether be stored on the section or could it be a part of the miner's belt?  Should it be stored with the additional SCSRs in a readily accessible and identifiable location, or in a separate location?
	2.  Should a training record under paragraph (c)(3) of 75.1502 not only include a requirement that mine operators certify, by name, all miners who participated in each emergency evacuation drill, but also additional information such as a checklist?  The checklist could be used to itemize the successful completion of each step of the training, as outlined in the approved program of instruction.
	3.  When should a miner don an SCSR during an evacuation?  Currently, miners are told to don an SCSR when they believe they are in danger or when smoke is encountered.  This may leave miners vulnerable to irrespirable air, such as air that contains lethal carbon monoxide levels or low oxygen.  MSHA is considering requiring that at least one miner in a group of miners, or an individual miner if working alone, have at least one multi-gas or air quality detector with them.
	4.  In the preamble to the ETS, we discussed a method to locate additional SCSRs based on a joint MSHA-NIOSH heart rate study.  MSHA solicits comments on the heart rate method, whether this is the most appropriate method to determine location, whether it is realistic, and any other comments that you may have on the heart rate method.  What other reliable alternatives exist for determining where to position additional SCSRs in the mine?
	5.  MSHA is considering a requirement that additional SCSRs under 75.1714-4(c) be stored in all escape ways at intervals of 5,000 feet for mines where the escape way height is above 48 inches and 2,500 feet for all other mines.  Would such a specification standard be more appropriate than the performance oriented heart rate method provided in the ETS?  Regarding such a specification standard, what would be more appropriate?  5,000 and 2,500-foot intervals for heights greater than 48 inches, and heights 48 inches or less respectively, or some other specific interval?
	6.  Should all underground coal miners be required to use SCSRs exclusively?  If so, is it appropriate to prohibit the use of filter self rescuers in all underground coal mines?  In addition, MSHA is considering adding a new provision to 75.1714-4 that would allow the use of new SCSR technology to meet the requirements of the standard, such as SCSRs that have the ability to provide up to two or more hours of oxygen per unit.  Is such a provision appropriate?
	7.  Manufacturers sometime lose track of which mines purchased their SCSRs.  When a mine shuts down, the SCSRs are often sold to another mine.  In the past, problems have been discovered with all brands of SCSRs.  MSHA is considering requiring that the following information be reported for each SCSR at the mine: the total number of SCSRs, the manufacturer, the model, the date of manufacture, and the serial number.  Is it appropriate to require mine operators to report to the relevant MSHA District Manager the total number of SCSRs in use at each mine?  If so, should any additional information be reported?
	8.  Because in the past MSHA did not always learn of problems associated with SCSRs, MSHA is considering a requirement that mine operators promptly report to the MSHA District Manager in writing all incidents where any SCSR required by Section 75.1714 is used for an accident or emergency, and all instances where such SCSR devices do not function properly.  In addition, when any SCSR device does not function properly, the mine operator would be required to retain the device for at least 90 days for investigation by MSHA.  These requirements would help assure that MSHA is notified of problems in a timely manner so that MSHA can provide timely notice to both manufacturers and users and assure that the affected SCSRs are available for testing and evaluation.  Should MSHA include such requirements in the final rule?
	9.  SCSR storage locations and escape ways may not be readily accessible to all persons underground such as pumpers, outback crews, and examiners.  Are there other ways to provide readily accessible SCSR coverage for these mines?  Are there other storage locations that would be readily accessible to such persons? 
	10.  MSHA sought comments on the appropriateness of requiring that signs to help locate SCSR storage areas be made of a reflective material.  MSHA also asked whether there are alternative methods available for making SCSR storage locations easy to locate when conditions in the mine might obscure storage location.  What methods exist that would make SCSR storage locations readily visible?
	11.  On the new 75.1714-4(c), operators are required to have separate SCSR storage in each escape way where a mine has parallel and adjacent escape ways.  Under what circumstances would it be appropriate to allow a hardened room or "safe haven" to serve both escape ways with one set of SCSRs?  A hardened room is a room constructed with permanent seal techniques, submarine-type doors opening to both escape ways, and positive ventilation from the surface through a borehole.  Is a safe haven an acceptable alternative?  If so, what should be the minimum criteria for MSHA to accept a hardened room or safe haven?
	12.  Currently, cone systems on lifelines vary, some with the cones pointing toward the face, and other pointing away from the face.  Miners may become confused in an emergency as to the direction of escape.  Should cones or other directional indicators on lifelines be standardized?  Following a NIOSH recommendation and for ease of movement, should the point end of the code be toward the face?
	13.  Miners should be able to safely evacuate a mine without the use of mechanized transportation.  There may be unique escape way conditions including ladders, man doors, air locks, and overcasts where hands-on experience of these conditions is required in order to quickly and safely escape the mine.  It is reasonable to require that miners walk the escape ways at least under these unique escape way conditions.  Should all miners be required to walk the escape way in its entirety rather than use mechanized transportation during the drills required by 75.1502(c)?  We are considering including a requirement in the Part 48 training program for new miners, that new miners travel at least in part both escape ways.  Would this training be appropriate?  And should the training include walk in part or all of the escape ways?
	14.  A more instructive emergency evacuation practice may be provided by using realistic drills.  For example, conducting a drill in smoke or using a realistic mouthpiece that provides the user with the sensation of actually breathing through an SCSR commonly referred to as expectations training, these are more realistic than simulation training.  What other realistic emergency evacuation practices and scenarios would ensure that miners are better prepared to act quickly and safely in an emergency?  We intend that scenarios required by the approved program of instruction under 75.1502(a) be used to initiate the drill and to conduct the mine emergency evacuation drills required by 75.1502(c). 
		For example, to initiate the drill, the section foreman may choose one of the mines approved explosion scenarios.  The foreman would gather the miners on the section and state where the explosion occurred, provide any special circumstances of the event and conditions requiring immediate donning of SCSRs.  The foreman and miners would then physically follow the best options for evacuation as they evacuate the mine.  When the miners travel to the place or into conditions that require immediate SCSR donning, the need to don the SCSR must be made clear so that it is understood by all.
	15.  We expect that the scenarios developed as part of the mine emergency and firefighting program of instruction under 75.1502(a) would be included as part of the emergency evacuation drills under 75.1502(c), making the drills more realistic.  Should we further clarify this issue in the final rule?  Or are there additional requirements that should be included in this training to make it more realistic, such as conducting SCSR donning in a smoke-filled environment?
	16.  We are considering putting all emergency evacuation drill requirements in 75.1502.  Thus, for example, the escape way drill requirements under 75.383 pertaining to frequency of drills, how far miners travel in the drills, and the number of miners involved in each drill would be incorporated in two requirements under 75.1502.  Under 75.383(b)(1), each mine must participate in a practice escape way drill at least once every 90 days, but is only required to travel to the area where the split of air ventilating the working section intersects a main air course or 2,000 out by the section loading point, whichever distance is greater.  Under new 75.1502, during the emergency evacuation drills, the miners must travel to the surface or to the exits at the bottom of the shaft or slope.
		Section 75.383(b)(2) and (b)(3) require that practice escape way drills occur at least once every six weeks, but only involve two miners and a supervisor.  Miners systematically rotate taking these drills so that eventually all miners participate.  Under new 75.1502, emergency evacuation drills are required for all miners, and at periods of time not to exceed 90 days.  We will have to reconcile these differences.  MSHA is requesting comments on incorporating all evacuation drill requirements in 75.1502.  We are also considering requiring section bosses to travel both escape ways in their entirety prior to acting as a boss on any working section or at any location where mechanized mining equipment is being installed or removed.
	17.  We are also considering requiring that all mine fires be reported to MSHA including fires shorter than 30 minutes duration.  This would address all mine fire hazards, including situations where a number of short duration fires occur.  Should the definition for "accident" in 50.2(h)(6) be revised to include all unplanned underground mine fires, or fires of a particular type or duration, or occurrences at particular locations in the mine?
		At the time that I left Arlington, we had received two comments on this emergency standard, and whatever comments we received, you can view the comments on our website at www.msha.gov under the section entitled "Rules and Regulations."  We have also answered several questions on compliance with the ETS covering a range of issues.  These questions and answers are included in the compliance guides that I referred to earlier.  As well, they are posted on our website.
		Finally, we have received questions as to whether the emergency evacuation training provisions for metal and non-metal mines are affected by the ETS.  While the ETS amends Part 48 by adding references to the requirements for emergency evacuation plans in existing 57.11053 for underground metal and non-metal mines, this reference does not affect the existing training requirements for metal and non-metal mines, and it is our intent not to change the existing Part 48 emergency evacuation training provisions for metal and non-metal mines.  We will clarify this in the final rule.
		As some of you know who participated in these hearings, the format of this public hearing will be as follows.  Formal rules of evidence will not apply and this hearing will be conducted in an informal manner.  Those of you who notified MSHA in advance will speak and those of you who signed up today will also speak.  After all scheduled speakers have finished, others, if there are others who wish to speak, you will be allowed to do so. 
		We also have an attendance list here and ask you to please make sure to sign the attendance list before you leave if you haven't done so already.  If you wish to present written statements or information today, please clearly identify your material.  When you give it to me, I will identify the material by the title as submitted.  You may also submit comments following this public hearing.  To be considered, they must be submitted to MSHA by 30 May 2006 which is the close of the comment period.  Comments may be submitted by any of the methods identified in the ETS, and again, you may follow this rule making by looking on our web page at www.msha.gov.
		We will post transcripts of all of the public hearings on our website.  Each transcript should be posted there approximately one week after the completion of the hearing.  The transcript will include the full text of my opening statement and the specific issues for which the Agency seeks additional comment.  
		We will begin now.  Please begin by clearing stating your name and organization for the reporter to make sure that we have an accurate record when you speak.  Our first speaker today will be Edgar Oldham with the United Mine Workers of America.  Mr. Oldham?
		MR. OLDHAM:  As she said, I'm Edgar Oldham, O-l-d-h-a-m, with the United Mine Workers of America.  And first, I'd like to say that I thank the panel for the opportunity to speak today regarding the emergency temporary standard that MSHA has implemented even though I'm not very pleased with the way it's had to come about.  As always, good hardworking coal miners had to shed their blood in order to get additional protections from MSHA and the Bush Administration.  It wasn't that many years ago that these same issues were out there for the miners' benefit but were laid to the side until the Sago Mine disaster rekindled them.
		Another thing that is on my mind is something that my father has always told me, and that is you can run but you can't hide.  And that is exactly what the miners feel MSHA and this administration is doing by having these hearings in places far removed from the coal fields.  Some of the people that I represent would have to have traveled 10 to 12 hours just to get here today when MSHA could have conducted additional hearings where participation would have been a lot better.  
		But maybe you don't want to hear from the miners themselves.  Maybe you just want to go through the motions like a lot of the coal companies do and just get it over with enough to comply with the law.  Don't bother to go that extra mile for the safety of the miners.
		I speak with miners, both union and non-union, on a daily basis.  And what trust they had in this Agency is fading fast.  And I'm telling you, it's out there.  If this Agency truly cares about miners' health and safety, they'd better figure a way out to regain that trust.  
		One example that I want to discuss is that it appears that MSHA intends to sugarcoat issues that it  uncovered during mine disasters, even as recently as the Sago Mine disaster.  MSHA was quoted in a recent news article that out of all the violations that were written of Sago during MSHA's investigation, that none of the violations contributed to the disaster.  In my opinion that statement is false because I know for a fact that the EMS warning system for the section where the 12 men died was disconnected.  Who knows how long the system had been inoperable?
		This system was supposed to warn miners in the event of an emergency.  But instead, it wasn't even working.  This was a system that was supposed to warn miners, but instead was being used as a paging system when someone was needed on the phone.  According to individuals even at the Sago Mine which I was a part of that investigation, this was a common practice at this mine, and at other mines within the area, just to use of the alarm system to page somebody to come to the phone.  Now, how much warning does that give people?  Or how much complacency does that give people?
		Where was MSHA and the state when all this was taking place?  One would think that someone would discover this practice at some point in time and take corrective action.  As far as MSHA's 15-minute rule for reporting accidents, I believe the 15-minute reporting rule for accidents should be just that and nothing more.  When an accident occurs at a mine, in most instances they call outside for assistance.  You can't tell me that while they're making their calls to the superintendent, attorneys and whoever else they call to protect themselves, they can't take two minutes to call MSHA to notify them.  So, I think the 15-minute rule should be adhered to strictly.
		It is my opinion and the opinion of the MWA that all mine fires should be reported.  We all know that a mine fire is one of the most devastating events that can occur at a mine.  The Agency in recent years has been focusing on near misses at mines when it comes to accidents and injuries.  Shouldn't the Agency be interested in the number of near miss man fires that are occurring in our nation's mines?  This is probably one of the most under-reported accidents in our mines.  Why?  Because we leave it to the discretion of the company to decide how many minutes a fire has been burning before it is extinguished.  Fires need to be reported plain and simple.
		Training, the amount of training that is going to be required for this rule should not be a part of the annual retraining time.  This training should be in addition to the eight-hour annual retraining that is presently required.  We have absolutely stressed the eight-hour training programs to the point that miners are not getting the quality training they deserve.  As a matter of fact, trainers are developing training tapes they call catchalls that have several types of subjects within the tape, and according to their training plans, as long as the subject is covered in the training session, they are in compliance.  This is not the type of training miners need or deserve.
		As far as the lifelines, they are needed.  They should be fire resistant in my opinion.  Above all, once installed, they must be maintained.  And in my opinion, they should be, all of them should be put in the same way with the cones directed toward the face where know them.  I mean, it's basically a standard that I've been used to in all of the mines that I've ever been so why should we change something, and people travel and go to different mines, all across the country nowadays, so it should be a standardized method.
		Something that has not been mentioned much is about the rescue chambers.  You know, it's been in the regs for years.  The technology is there to use them.  But MSHA is still in denial of their benefit.  And we'd have to think about it.  If the Sago miners had a rescue chamber available to them, those miners would have walked out that mine and they'd have been rescued.
		With that being said, it is my opinion if the company at Sago had been required to keep adequate barricading material even on the section, the miners would have had a better chance because they would have barricaded the larger area.  Instead, this is something that is neglected at almost every mine across the country.  Emergency slides are not being maintained the way they should with enough material to erect adequate barricades as needed.  I mean, you see it everyday when you go in the mine.  All you have to do is walk in those areas and look at them.  And if something is to be robbed there, they get it and use it and it's not replaced.  So, it's something that needs to be taken care of.
		As far as the records on SCSRs, I think with the way companies are going bankrupt and selling and swapping and doing everything, we need to track SCSRs.  We don't know the condition they are, where they was bought, what time frame they was bought in.  So, I think a tracking method does need to be with SCSRs.  I agree that miners should have at least two SCSRs available to them on a section if they have to evacuate the mine.  
		I don't agree with some of the distances being proposed by some of the mining companies when they start talking about 7,000 and 9,000 feet for storage areas, especially in 60-inch or lower seams.  I don't agree with an individual's physical condition being the number one factor in establishing these distances.  Not one discussion have I heard that deals with a smoke-filled entry or walking conditions.  And you know, when we talk about disasters, we're not talking about perfect conditions, so there's got to be a factor built in on these storage areas that allows for all that to be factored in.
		As far as the training, I think it should be more realistic.  You know, most instances, especially in a fire, people are going to encounter smoke.  Just putting on an SCSR and walking out the intake entry is not very realistic.  So, you know, the more realistic, the more hands-on that we can make this training for the miners, I think it will better benefit people and give them the ability to escape from the mines.  
		As far as the miners' reps,  you know, I don't read anywhere in this that includes either the miners or the miners' reps in the planned development.  And as always, it's MSHA and the company making these decisions with no input from these miners who are underground everyday.  You know, it's just not right to exclude those individuals from this process.  They're the ones that are affected, they're the ones that know what will work, what won't work, and we need to include those people in this process.  
		So, I appreciate the opportunity and thank you. 
		MS. SILVEY:  Thank you.
		MR. SHERER:  Mr. Oldham, you talked about mine fires being under-reported.  Do you have any experience with that?  Could you give us any more information?
		MR. OLDHAM:  I mean, when an individual walks upon a fire, they don't know how long that fire has been burning.  It may have already been burning for 30 minutes.  So, once they discover it, you know, and they work on it 15-20 minutes, it may have went 35-40 minutes before and still not have to be reported.  So, I mean, we don't know how long a fire has been burning and we don't know how many of these near misses that you're having in these mines.  So, I think it would lend itself to, here was a fire, what caused it, was it accumulations of coal?  And if you're having these on a regular basis, at least you're going to have a better tracking of how many instances that you had of just the fire in a mine.
		MR. SHERER:  Thank you.
		MR. McLEOD:  I have a question on the annual refresher training, Mr. Oldham.  You discussed I believe a concern that we have possibly added additional trainee requirements in essentially Part 48.8, the annual refresher training.  Could you expand on that a little bit what your concerns are?
		MR. OLDHAM:  I mean, if you look at every reg that we've implemented and everything that we've done so far, we've said add it to the annual refresher training, put it in there somewhere.  Well, when all those plans were developed, everything was put in that plan that every company thought should be covered at that time.  So, you keep adding stuff to it, you're taking away from something where, I mean, at some point in time, look how much we took away.
		I know one thing that's a big complaint in our area is first aid training.  I mean, basically you watch a little tape.  It used to be hands on.  They'd put bandages on and really learn how to help people with first aid in the mine.  Now it's just a tape, there is no hands on.  So, you know, eventually it just went to watching tapes and not a lot of hands on anymore.  And I think we need to get back to that because people were taking that a lot better.
		MR. SHERER:  So, your primary comment there is that the quality of the training has gone down?
		MR. OLDHAM:  Due to the fact that we've kept adding on to the programs, and every time we create a regulation and says you have to put this in annual refresher training or that training has to be done, you take away from the eight-hour that was originally there and it's totally intended purpose.
		MS. SILVEY:  If I understand it though, Mr. Oldham, I think, I'm taking from what you said here is that the SCSR training, you think that that ought to be in addition to the training required by the eight-hour training?  That's the substance of your comment?
		MR. OLDHAM:  Right.
		MR. McLEOD:  Just maybe for a clarification.  One of the things that the ETS did for folks who do the 1502 drills which would be typically most miners, that all of the SCSR training, the hands on, the donning, and then of course we added the transferring to them, was actually moved from annual refresher training to 1502.  That's why I guess I'm a little, I have a question in my mind because for the most part we took stuff out of the annual refresher training in the ETS for miners who will receive the 1502 drills.
		The language was left in the annual refresher training because there are people, typically probably independent contractors, who may not routinely be part of the 90-day drills.  So, that language was left in there, but for most people who are working in the mines on a full-time basis and will get the 1502 drills, the SCSR component within the annual refresher training was removed.  I guess that's why I was further asking your concern about adding more stuff to the annual refresher training because we kind of thought we took stuff out.
		MS. SILVEY:  I understand your point.
		MR. SNASHALL:  Mr. Oldham, you mentioned that the 15-minute notification rule should stand.  Are you aware of any situations where an operator has in effect had to make a choice between saving somebody, initiating life saving operation and stopping to make a contact to MSHA?
		MR. OLDHAM:  I'm not aware of that, but I'm aware of situations because I serve on the Protective Mining Board, and a for instance is where companies have not even reported accidents and found out later that they was up here in -- Medical Center about to die and it never was reported.  Two days later, a safety inspector finds out about it and they had to go investigate something to try and put it all together afterwards.  So, that's why I think the 15-minute rule is to be adhered to strictly because it's being abused, even the reporting that we have presently.  You know, it's left up to the discretion whether it's a life-threatening event or not to the company and their discretion is a little bit different than mine.
		MS. SILVEY:  Thank you.  Thank you very much.  We appreciate it.  Our next speaker will be Bill Caylor with the Kentucky Coal Association.  Mr. Caylor?
		MR. CAYLOR:  My name is Bill Caylor with the Kentucky Coal Association.  It's a trade association located here in Kentucky.  In behalf of our industry, I'd like to welcome you to Kentucky and also welcome you to Lexington.
		What I'm going to do today is just go over some of the concerns we have which somewhat parallels the summary that was given prior to the start of this meeting.  We will submit detailed written comments toward the close of the public comment period.
		We have several comments and concerns, and that's with the use of the different SCSRs on how you change from one model to another if you do have an incidence.  And we have the concerns about the disclaimers by the manufacturers, you know, that they will give you instructions on how to change from one model to the same model but not from a model from one company to a different company.  So, that's a concern I think you all need to take a look at.
		I think you all need to recognize the unavailability of self rescuer and I think you are.  You know, with the rush on manufacturing more self rescuers, there's going to be a time line.  And you need to take a look which I think you are on the training on the use of different rescuers.  I mean, if you have an SCSC or an Orsanco, you know, you need to make sure everybody is properly trained on the different models.
		We need to look, and I don't know if this is right on point for this proposed regulation, but we need to look at protocols for mine rescue teams.  I know when we had a meeting to discuss this, that was a concern in light of the recent tragedies that we have had.  You know, some basic concerns over really on who takes charge, who should be in a command center, and protocols for entering the mine, and then protocols for protecting the command center of the mine rescue teams from decisions that were made in good faith but on hind sight may prove to be an erroneous decision.  You know, we need to protect these people, encourage them to do their job and not be Monday morning quarterbacks on them.  And that applies not just to the rescue team but to state and federal officials that help oversee this process.
		We feel like we need flexibilities on the quarterly drills.  90 days may be too often in some situations.  We just, we would like to see some flexibility built in there.  We feel like we don't need to walk on practice drills, maybe with some exceptions.  And those exceptions would be in certain areas on the way out whereas you may need to walk and familiarize yourself with, but by and large you ought to be able to ride a motorized vehicle or a mantrip.  And this takes into account people that may not be physically able to walk it on a routine basis, but if there was an emergency clearly could.  We just don't want to unduly burden somebody on the drills.  I don't think that is the intent.
		On caches of self contained self rescuers, in Kentucky I know we passed a legislation that will go into effect in July concerning self contained self rescuers.  We allowed one provision in our state law to have caches that are accessible to both the primary and secondary escape ways.  And I think that was touched on in the discussion prior to this hearing, the use of a safe haven.  I think that's a prudent thing we ought to look at.  What constitutes a safe haven needs to be looked at further but we have a state law that does allow caches to be stored between the primary and secondary escape way.  There is no sense in purchasing SCSRs if we don't need to.  I mean, this is not a safety issue, this is just more practical, pragmatic issue.
		On the use of lifelines being standardized, we fully agree with that.  We want to make sure that every lifeline should be similar, especially the cones, so everybody knows exactly what the intent is, how to escape, you know, what the cones mean.
		The cost estimates on the SCSRs and the lifelines that were in the preamble, when we got looking at this, we realized that they were, you know, I think low-balled.  And I don't think this was intentional and I'm not trying to point this out as a criticism but the cost is going to be much, much greater than what was in the preamble.  And I'm not trying to say this as reflecting on safety, you know, forget that, but it is going to be a bigger financial impact on operators.  And one of our concerns were for the small operators who may not be able to pass these costs along to the utilities, a small operator who doesn't have a contract directly with a utility, and typically a lot of contracts allow you to pass through mandated provisions in new laws and regulations.  So, we are concerned that a lot of the small operators can't financially comply with what's being required here today.  We would like to see if there is any effort that could be made to help ease the cost for some small operators.
		We always feel like there is always a need for flexibility in the rules to accommodate new technology as new technology comes along.  So, when you're drafting your rules or when you design your final rule, just keep in mind there may be some new technology.  And we don't want to prevent that by an inflexible rule at this point.
		One the 15-minute rule, we want to work to make this very effective.  It will take a while to get the kinks out of the system, you know, where we have a toll free number that we can call and make one phone call.  And we have that same rule in Kentucky in our state law.  So, we have the 15-minute rule to call the feds, a 15-minute rule to call the state.  We want to make sure this can be coordinated as well as possible, and it will take a while to get the kinks out but I think that will happen.
		I know there has been a lot of talk over the past criticizing, you know, the state and federal agencies, criticizing the Bush Administration.  I think the agencies are doing a pretty darn good job.  And in support of that statement, I'd like to, I handed out a brochure that we did on Safety is First in Kentucky Mines.  What I did over a seven-year period, I looked at the statistics on the average injury and illness rate for Kentucky mines.  And I got this from the US Bureau of Labor Statistics off the internet, and I took the years from 1996 to 2002 and just did a summary of how a Kentucky coal miner ranks with other people that work in the State of Kentucky.  
		And over this seven-year period, I did an average.  You can see how we fit in in terms of injuries and illnesses, the rate.  Manufacturing is 13.2.  Construction, 9.0.  Ag, forestry and fishing is 8.5.  Transportation and public utilities is 8.3.  And then private industry as a whole is 8.24.  And the Kentucky coal miner fits in really a shade under the average Kentucky worker coming in at 8.21.
		I took 2003 and 2004.  They were, I didn't include them because they started mixing the categories.  They would mix some of these categories so I couldn't do apples and apples.  But they had the private industry average for 2004,  and the coal mining industry came in under the average annual injury and illness rate for all Kentucky workers. 
		So, again, we've seen dramatic improvements in the mines.  I want to accentuate the positive.  Congratulate the agencies, the industry, the union, the people, all the people that has had a role in bringing these accident rates down.  And our goal is to continue to bring these accident rates down.  Our goal is also to bring fatalities down.  Also in this brochure, you can see on the back how the average number of fatalities by the coal industry ranks with other categories.  Again, it's much less but as we all know, one fatality is too many.  One fatality is unacceptable.
		But I just want to point out that I want to applaud the agencies for the good job that they're doing.  We're seeing some very positive trends and we want to see these trends continue.  And I don't see any deviations from the trends.  And that concludes the points I want to make.  We will submit written detailed comments by the end of the comment period.  Thank you.
		MS. SILVEY:  Okay, thank you.  I have a few, I guess observations first and then maybe a comment or two.  First of all, you mentioned the concern with using different SCSRs, different manufactured SCSRs and changing from one manufacturing model to another.  And we've heard concerns about that and, you know, I believe that is, we are working on some protocols with NIOSH and that we can make the protocols available to the mining public that do in fact deal with training protocols, that do deal with changing from one model to another, transferring from one model to another in the training.  And maybe Jeff can comment in more detail about it.  I don't exactly know where the status of the protocols are now but we recognize that and we want to make as much information available to the mining public and provide as much assistance as we can.  So, we are working on that.
		On the issue of walking the escape ways, and I should say to you that we heard a lot of information on that at Monday's hearing and the information from all the people who testified at Monday's hearing.  All segments of the mining industry seem to appear to be in agreement on that that in all circumstances we did need to require that the escape ways be walked in their entirety under all circumstances.  And as I said, you can go to our website and look at the transcript and see exactly what the different parties said.
		On the issue of the cost estimates, if you, and I'm not asking you to do it today, but if you have more specific data with respect to the Agency's estimates in the ETS relative to SCSRs and lifelines, if you have more specific data, would you provide that in your written comments to us?
		And those are all the comments and observations that I have.  
		MR. KRAVITZ:  Okay.  Thank you very much for your comments.  I'd like to address the changing and transferring from one SCSR to the next.  Almost immediately after Sago, MSHA and NIOSH started developing new training techniques from the transferring from one SCSR to the next.  And that, this passing protocol or technique is being refined right now.  It's in the last stages of this process.  We will then take it to field testing and then come up with new training material similar to the 3+3 Donning that is used commonly in all mines right now.  
		MR. CAYLOR:  Thank you.
		MR. KRAVITZ:  So, we have addressed that and we intend to modify our training modules, our interactive training modules and training videos that are available through our academy.
		MR. CAYLOR:  Thank you.
		MR. KRAVITZ:  I had one question about the caches between the primary and alternate.  You said Kentucky was working on standards for these right now?
		MR. CAYLOR:  Well, they haven't worked on standards as yet.  We had that in our law where the ability to place the cache between the primary and the secondary escape way is in our state law.  And I think what was touched on in the lead-in this morning was the term safe haven.  So, I think that's the concept but we have that in our state law that was passed during this last session in response to the Sago.
		MR. KRAVITZ:  Is anyone working on the specifications for that?
		MR. CAYLOR:  At this point, no.  We have created a mine safety equipment review panel in Kentucky.  That panel could very easily look at this situation to make recommendations, a panel made up similar to the panels that you've seen created in West Virginia and in Washington.  We have our own panel, so that could easily be a topic of discussion where this panel could make the recommendations on what that safe haven should be.
		MR. KRAVITZ:  Thank you.
		MR. PHAN:  I have one question.  I want to go back to the models of SCSRs.  Do you, can you provide us with some kind of statistics to indicate the kind of, namely the mine size that would use more than one model?  And if you do, I mean, this is a general question for everyone as well, I mean, if you have that kind of statistics whether the mine has more than one model or using one model, that would be great.
		MR. CAYLOR:  That's a good point.  I guess some of the concern is would the operator be required to purchase the same model that he currently has even though it means a longer time of wait period?  Then we had some concerns about the manufacturers' disclaimers, you know, from going from their model to a competitor's model.  You know, they would disclaim the effectiveness of it and that was the main concern.
		MR. SHERER:  Mr. Caylor, we've put in the first compliance guide that there is no requirement that the mine standardize on a particular type of SCSR.
		MR. CAYLOR:  Yes.
		MR. SHERER:  That's their choice or choice not to do that.  We do understand that the market is somewhat chaotic right now because of the situation.  So, we are willing to work however we can to provide oxygen to the miners.  And there are questions of transferring SCSRs, as Jeff said, we're working with NIOSH to develop the specifications and protocols, and you get into, you're a lawyer, you know about the liability issues for the manufacturers.
		MR. CAYLOR:  Yes.
		MS. SILVEY:  Okay.  Thank you.
		MR. CAYLOR:  Thank you.
		MS. SILVEY:  At this time then, we'll hear from Tony Oppegard with the Appalachian Citizens Law Center.  Mr. Oppegard?
		MR. OPPEGARD:  I want to thank the panel for the opportunity to testify today.  I had read the emergency temporary standard the day it was first published, and then again I read it last night.  I have some specific comments about it but I also will plan on submitting more detailed written comments.
		I'm representing the Appalachian Citizens Law Center today which is a non-profit public interest law center in Prestonsburg, Kentucky that works on coal issues.  Wes Addington who is the director of the mining project for ACLC is also here.  One of the things that ACLC does is represent non-union coal miners and 105-C cases in Eastern Kentucky.  
		I think it's important to point out first of all that there are no union miners in Eastern Kentucky, so I would agree with the comments of Mr. Oldham which I was going to mention initially, too, that I really would recommend that MSHA convene these hearings in coal fields that are accessible to miners.  You know, you all could have held this hearing in Hazard or Pikeville or Prestonsburg or Harlan, any place where miners would have had an opportunity to attend.  The reality is there probably would not have been many miners attending because miners are afraid of discrimination if they speak out on safety issues.  And that's a reality in Eastern Kentucky and has been for many  years.  But the fact is that they should be given the opportunity to attend and to speak if they choose to do so.
		And although it's certainly not in this rule, one recommendation I would make to MSHA is that you need to change the reg regarding representative of miners.  And I represented miners back in the mid 90's who filed to become the representative of miners.  At that time, it was unheard of in Eastern Kentucky.  In fact, there were no representative of miners in any mine in all of Eastern Kentucky.  What happened to these two miners when they got a couple of miners to sign for them and were designated as miner's reps is they immediately started being discriminated against, and within a matter of weeks they were both discharged.  
		More to the point is that what the company did, when although this company had never had a miner's rep in all the years of its existence, as soon as these two miners became miner's reps, well, all of a sudden they had about 30 other people designated as miner's reps, many of whom were management employees.  And when MSHA went to the mine then, you know, they were confronted with the problem, well, now we've got 32 miner's reps.  We never had one before, then two miners sign up and all of a sudden we've got 30 so who do we pick?  You know, who travels with us?  And they made the determination that the first person they saw who was a miner's rep would be invited to travel.  
		Well, of course that's always management because, you know, the miners were underground working, management is outside.  And you know, they had section foremen, mine foremen, other people designated as miner's reps.  So, my suggestion is that that reg be changed to prohibit the designation of management employees as representative of miners.  That was not what Congress intended when the representative of miners provision was included.  And when you read your legislative history, that's very clear.  They intended that to be hourly employees, because management always has the right to travel with MSHA inspectors.  They always have the right to travel with state inspectors.  If you have a miner's rep traveling with inspectors, it should be an hourly employee.
		Turning to the ETS, overall I think it's, I mean, when you read it I think a lot of thought went into it.  I think it's a thoughtful rule and I certainly applaud the intention of providing greater protections to miners.  I do have a few problems with it which I want to go over, and also tell you the things that we think are good about the rule.
		First of all, let's deal with the 15-minute notification period.  We applaud this provision.  We think it's needed.  To answer Bob's question that was directed to Butch about instances in which companies may forego, you know, rescuing someone in order to contact MSHA, I think that's a red herring, you know.  I mean, let's get real here.  If someone, you know, is under a rock, an operator is not going to say, well, I'll be back in 15 minutes because I've got to call MSHA.  I mean, you know it's ridiculous.
		So, one of my jobs in addition to representing miners for 18 years in 105-C cases was I was a prosecutor in Kentucky prosecuting mine safety violators from April 2001 to May of 2005.  And in those four years, I investigated a lot of accidents.  I mean, I was on the accident investigation team interviewing miners about what had happened in accidents.  And we have a serious, serious problem in Kentucky with failure to report accidents.  You all need to know that.
		And part of the problem is because of MSHA's definition of what an accident is in terms of serious physical injury.  The bigger problem is the company's unwillingness to report an accident because sometimes they don't want anybody to know, they don't want the regulatory agencies to know.  And I can give you two examples.  One was in Martin County, Kentucky where a miner was up on a power poll to disconnect some connections up there and he didn't know that part of that box was energized, half of it was energized.  And he got into high voltage and was electrocuted and fell, my memory is like 25-28 feet down, hit his head on a substation.  
		Well, this guy spent several weeks in a hospital and that injury was not reported for several days.  And the guy had been taken up to West Virginia, he was in a hospital.  I don't even remember how MSHA found out about it.  But I sat in on the trial of that case.  I mean, MSHA cited the operator for failure to report an accident.  And basically the testimony of the operator was, well, yes, he was knocked unconscious and, yes, he was bleeding from the head, and, yes, we had to call an ambulance to come and get him, but by the time the ambulance came, he was conscious and asked us to call his wife and let her know he'd been in accident so we didn't think it was serious.  Now, this guy was permanently disabled and spent weeks in a hospital and that wasn't reported.
		One case that I sat in on was in Pike County, Kentucky and this was a guy who was injured in a roof fall.  And he was knocked unconscious.  The testimony at the interviews was that when he, I think they used smelling salts to help him regain consciousness, but when he came to, he was in great pain, he had chest pain.  He had a pain in his neck and his back, and if I remember correctly, I think he ended up with a broken neck.  But the bottom line is I know he was taken to a hospital that day.  The next day he was life-flighted to another hospital out of state. 
		Well, that was never reported to either the state or to MSHA.  And an inspector at a strip mine heard about it.  This was an underground mine but, you know, some related or company in the area, a miner mentioned, well, how is that guy doing who broke his neck?  And that was not reported.  And these are just two instances, but it is a big problem.
		The problem we ran into at that second case, and I was asking questions about why didn't you report it was, well, we didn't think it was a serious accident.  And almost without fail in these disputes, the company people would always cite MSHA's reg, and that is, well, under MSHA, the accident has to have a reasonable potential to cause death.  And that's not what the state standard is.  We have a stricter standard.  And that's in, you know, that's in Part 50, it's in Section 50.2(h)(2), your definition of an injury which has a reasonable potential to cause death.  That's far too narrow and that needs to be changed.
		We have penalty regulations in Kentucky in which we define a serious injury means an injury involving extreme physical pain or the protracted impair of a function of a bodily member, organ or mental faculty, or requiring medical intervention greater than first aid such as surgery or hospitalization.  It's a little cumbersome maybe but the point is if you have an injury that requires, not first aid, we're not saying if someone, you know, hits their thumb with a hammer, that has to be reported.  But if it's something that requires surgery or hospitalization, that's a serious physical injury, and that should have to be reported.
		It's a loophole that you all need to close.  We tried to change this on the last legislative session because in Kentucky we now have a 15-minute reporting requirement, too.  And I should mention, the one good thing about Kentucky law now is that if an injury is not reported, an accident is not reported within 15 minutes, the company can be fined up to $100,000.  So, we have a, I think the state is taking it seriously now.  That's a serious penalty.
		The argument of the coal industry, Mr. Caylor specifically, is that we need to have consistency between the state and federal regulations.  The fact is the coal industry only wants consistency between state and federal regulations when it benefits the coal industry.  If it doesn't benefit the coal industry, then they don't want consistency.  In this instance, they want consistency because the federal's definition of serious injury is very broad, it needs to be restricted.
		Where we don't have consistency, for instance, is in fines.  And the coal industry doesn't want consistency between state and federal because the maximum fine in Kentucky for the first time now for any violation, even if you have a 150 violations in one inspection is $5,000.  And of course, MSHA's is $60,000 and going up in the near future, hopefully to 220 or higher than that. 
		One thing that's perhaps overlooked a little bit in this reg in terms of the notification period, there is another reason for immediate notification other than helping to rescue miners or, you know, prevent further injury.  That's preservation of the accident scene and being able to determine what caused an accident.  And the fact is when accidents aren't reported for two hours or six hours or until the next day, when the company says, oh, well, you know, now that the guy is in the hospital and we realize he has a broken neck, it is a serious accident, maybe we should have called you yesterday.  
		And going back to that Pike County case, the company continued to mine after the guy who broke his neck and went to the hospital and was life-flighted.  We couldn't determine whether there were any violations or exactly what had happened, just the testimony of the miners that we were complying with the roof control plan.  It was, you know, an act of God.  It was unforeseeable.  You know, and there was no way for us to prove anything, to even look at it because they had advanced, you know, a few breaks from the point of the accident.
		We had a case in Perry County, Kentucky when I was general counsel where a miner was fatally electrocuted.  And the company disconnected all the electrical connections on the section so that when our investigators got there and MSHA investigators, there was no way to determine how he'd been electrocuted.  I mean, it was impossible for him to have been electrocuted based on the accident scene as we found it because everything had been changed.  
		We had another case in Knott County, Kentucky where we had a miner who was running a water hose, or supposed to be putting up water sprays at the discharge roller on a head drive and he was stringing the water cable across a moving belt line and it snagged, pulled his hand in, he had a partial amputation.  Well, that one wasn't reported in 15 minutes.  You know, it was reported that day but in our accident investigation report we made the determination that the accident scene had been altered there.  The guards had been put up along the belt line near the discharge roller after the miner had lost part of his hand.  
		So, that's another reason for the 15, I think that the 15-minute notification requirement is a good one, that we need to get both state and federal investigators to the scene as quick as possible and to preserve the accident scene.  I also think that for the first time in this legislative session in Kentucky, we now have a prohibition against altering the accident scene.  We had never had one before.  And our definition is better than MSHA's definition.  And I do think you have a big loophole in yours that needs to be changed, and that's the part that allows you to alter an accident scene to -- I'm trying to think what the standard is.  It says to prevent destruction of mining equipment, and that's a big loophole.  And you know, operators can say, well, we moved that body because, you know, we didn't want our continuous miner to be involved in another roof fall or whatever.  You know, say there's a roof fall that kills a miner, you know he's dead, that body should never be moved until investigators get there.
		The only place in the world that you can move a body without any repercussions that's dead is in a coal mine.  You know, if a guy gets killed out in Walmart or anywhere else out in the public, nobody moves this body until the police get there and an investigation is done.  But what happens in the coal mines, you have companies telling miners it's disrespectful to leave this guy's body underground, you know, it's disrespectful to the family and there's pressure on people to move bodies although once you move a body, particularly in an electrocution, it can be impossible to determine what the guy was doing.  And the way his body falls is important, where he is located in relation to electrical equipment, or in a rock fall.  Was he beyond, under unsupported roof?  You know, was he beyond the last row of bolts?  A body should never be moved and you all need to tighten up that reg.
		The next part of the ETS is the frequency of the SCSR training.  And again, ACLC approves and applauds this reg.  I think the hands on training every 90 days is good.  It's something that should be done.  Whether a miner should be required to walk escape ways, I would think at least once per year.  I mean, I can see an argument if you're working, you know, five miles underground, maybe, you know, you shouldn't have to walk it four times a year.  I mean, that's a common sense.
		I think it's somewhat of a red herring to say requiring a miner to walk at any time could cause knee injuries and back injuries.  I mean, come on.  You know, these are coal miners.  It's arduous work.  It's a problem if the guy can't walk out.  I mean, what's he going to do in the case of an emergency?  And I think it's sensible and reasonable to say under some circumstances you do have to have to at least walk the escape ways.  I understand by riding you can familiarize yourself with the escape way and that's fine.  But I could see maybe reducing the four times walking per year, but the four drills per year I think is necessary.  
		And I think at least one of those miners should have to walk, I don't care if they're five miles or seven miles underground.  It still doesn't simulate what you have in an accident.  I mean, you're not going to have smoke-filled escape ways.  You're not going to have a chaotic situation where there is confusion.  I think that's the least that can be asked.
		As for directional lifelines, again, I think we would generally support that.  I think the reg is pretty good.  The one problem that we would have is the same one that Mr. Oldham pointed out.  I think that any type of lifeline should be made of fire resistant material.  It doesn't make any sense to me why it wouldn't be fire resistant.  The only thing that I have heard raised has been the cost and to me that shouldn't be a factor.  If an operator can't afford fire resistant lifelines, he shouldn't be in business.  If an operator cannot afford safety underground, cannot afford what's necessary to provide a safe working place for miners, he shouldn't be in business, period.
		One problem I have with the entire reg that's not really mentioned, you all referenced belt air several times in the reg, that this testimony for the belt air reg before has led to this or that conclusion.  I think that the belt air reg is probably the most pernicious safety regulation that's ever been passed by MSHA.  I really think it's shameful.  I think the industry or the Agency should be ashamed of that regulation.  There should not be any belt air.  You know, you all took 35 or more years of precedent where Congress specifically said in the legislative history why belt air should not be allowed, that it's dangerous, that it can spread fires, it can propagate fires.  And it was totally ignored in order to save coal operators money basically, so they wouldn't have to drive an extra entry to ventilate their mines.  
		And I think if a fair and impartial investigation is done at the Aracoma Mine, we're going to find that belt air played a big role in why two miners died there or why that fire spread so quickly.  For Appalachian Citizens Law Center, one of our priorities in the next legislative session in Kentucky is to eliminate belt air, to prohibit it in Kentucky.  If MSHA won't do that, we're going to take measures in the state to try to do that because we don't want any mines in Kentucky ventilating the belt line with intake air.
		And, you know, the reason given by MSHA to allow belt air, you know, that it's okay as long as you have a CO monitoring system, that's a very weak rationale.  You all can, if you think the CO monitoring systems are a great idea, you can require them on all belt lines, whether or not it's used for intake air or not.  I mean, require them if you want to, that's fine.  But I'm telling you they don't always work.  It did not work at Aracoma.  I mean, there may have been notification given, but two miners still died.  And no doubt that fire spread a lot more fastly than it would have had that belt line not been ventilated with intake air.
		You all should be aware of a major mine fire we had in Kentucky in April of 2002.  And I helped investigation this mine fire and, you know, did a lot of the interviewing.  This was at the Blue Diamond No. 77 Mine in Perry County.  And without going into great detail, basically what happened is there was a fire on the belt line.  The reason for the fire was the same reason that you have most belt line fires, it had been gobbed up for probably a couple of weeks with all sorts of reports that it needed to be shoveled and it was never shoveled, it was never cleaned.  
		And they had a CO monitoring system.  And the testimony in that case, that fire probably raged for five hours before anyone found it.  We had, my memory is 26-28 miners working in by a raging fire for several hours.  Had we had an ignition source on the belt line, we would have had 26 or 28 dead miners.  There is no question about it.  And they had a CO monitoring system.
		Well, why didn't the CO monitoring system work in that case?  It's because, number one, the guy who was "trained" to monitor it outside had been trained for 15 minutes by a guy who had been trained for 15 minutes at another mine.  And he didn't know how to read the printout.  At one point, the printout read runaway, he didn't know what it meant.  Well, probably what it meant was that the system had burned in half by this time.  
		And this guy who was monitoring it had never been in an underground coal mine.  I asked him, if you knew the system had been burned in half and you had no telephone communication, which they did not, and you had to get underground to tell the miners what was going on, they needed to evacuate the mine, what would you have done?  He said the farthest I have ever been in the mine is the bottom of the elevator shaft.  I had no idea where they were working.  I could not have done it. 
		In that case, although you had a mine fire raging for several hours, they sent another crew underground to work, not knowing that the mine was on fire.  When those guys got to their workstations, they saw tools spread all over the place and they realized something was wrong.  And they went hunting for the other crew and found them fighting the mine fire.  And at some point, MSHA and the state were notified.  That fire was so out of control that the mine had to be sealed that day.  They could not put it out.  And it didn't reopen for, I think it was like 17 months.  I think it opened in July of 2003.  
		And they had a CO monitoring system.  It didn't work.  And had there been belt air in that case, we probably would have had a bunch of miners who would have been killed.  Fortunately, they did not ventilate the belt line with intake air. 
		With regard to the SCSRs, I think there are some really good provisions in this reg, but there is one provision that troubles me greatly.  To require an additional SCSR so that there's two for every miner, that's a very positive thing.  I think it's very positive to require the SCSRs on mantrips.  The explanation for that made great sense.  The problem that we have with the SCSR plan is the outby storage plan.  I think it's not well thought out.  It also caused us problems in Kentucky frankly because we had what was called House Bill 503 which would have been much better than what MSHA has in this emergency temporary standard.
		House Bill 503 in Kentucky which Representative Brent Yonts sponsored would have required caches of SCSRs in the primary and secondary escape ways at every 1,250 feet if the seam was 48 inches or less.  If the seam was above 48 inches, they would have been required every 2,500 feet.  So, I think you asked a question in your ETS about if we don't have this performance based standard which I really do not agree with at all.  No offense, Jeff, I think that was your name there.  
		But it's inconceivable to me that small operators in Eastern Kentucky are going to try to go through that exercise.  I mean, frankly I didn't really understand it reading it.  I mean, we have some operators who still think reflective signs in escape way, you can hang pop cans in there.  I mean, you know, that may be a rare circumstance but I just can't see operators going through this and doing it three times and averaging and all that.  I just don't think that's workable.
		I think what you need to do is have a fixed standard of where SCSRs have to be at what distances.  I don't think what Mr. Caylor about the, you know, we have a term accessible, we do in the new Kentucky law.  That's a bad part of our law.  If you think you can put SCSRs between escape ways, to me it's just an effort to avoid cost.  It's nothing that enhances safety.  They should be in the escape ways.
		If I understand the outby storage plan, and I've read it twice now, if I understand it correctly, it may not be required in all cases.  Is that true?  I mean, I think it should be required in all cases.  I think that you should have SCSRs stored in the primary and secondary escape way in all mines unless, I mean, if you're only underground 500 feet, obviously no.  But if you're underground a certain distance, I think you should have them both escape ways at designated intervals.
		And I think the problem frankly with me, I mean, you emphasize the need for flexibility, I don't think operators ought to have flexibility in this.  I think it ought to be designated.  I think they should be 1,250 feet, every 1,250 feet if it's 48 inches or less, and every 2,500 feet if it's above 48 inches, the coal seam, that is.  And I think if an operator wants something different, they should have to go through the petition for modification and ask for a variance.
		Frankly, at this point, there's a lot of industry executives running MSHA.  I don't trust them in terms of flexibility approving plans that are mine specific.  I understand the reason for it, I just don't think it's a good idea.  Most standards are fixed standards and if you want to deviate from it, you file a petition for modification.  That's what we believe should be done in this case.
		One final point, you know, Mr. Caylor was talking about, you know, the excellent safety record that we have in Kentucky and how safe mining is.  The fact is that, as everybody knows, we've had 26 deaths in coal mines this year already in the United States.  We're not even a third of the way through the year.  We've had five in Kentucky already.  Last year, we had six.  In 2004, we had eight.  So, you know, our rate is real high at this point.
		The one thing that most people don't talk about that needs to be remembered is we shouldn't just be looking at fatalities.  We should be looking at injuries as well.  And in Kentucky, in 2004 and 2005, we had 35 serious non-fatal injuries.  And MSHA doesn't do accident reports for anything other than fatalities ordinarily.  In Kentucky, we do them for serious non-fatal injuries.  
		And of those 35 serious non-fatal injuries in the two previous years, the vast majority of those were permanently disabling.  And we have guys with brain damage, amputations, you know.  Most of these guys, probably at least 80 percent of them will never go back to work again and the consequences on their lives are extremely significant.  In a lot cases, you could argue almost as bad as being killed.
		Everybody knows that we had two miners killed last week.  We had a miner killed Thursday in Pike County in a pillar section.  We had a miner killed Friday in Harlan County who got caught between a bridge conveyor and a low -- structure.  But what most people don't know is we also had a miner who had a leg amputated on Monday because, you know, that doesn't get the attention.  That's a serious non-fatal accident and this was in Harlan County also.  Fortunately, he survived but he lost a leg.  You know, the last fatality we had last year in Kentucky H&D Mining, we had a miner who was run over by a ramp car and had his legs severed and he bled to death, and he never should have died.  But the MET who was designated for that section didn't treat him and he lost so much blood, by the time he got to the hospital he had perished.
		I'd be glad to try to answer any questions.  I appreciate the opportunity and we will submit more extensive written comments.
		MS. SILVEY:  Thank you.  With respect to your testimony about the serious problem with failure to report accidents in Kentucky, and you gave several specific examples, but as an MSHA representative that concerns me.  So, and as I said, you did provide several examples, but if you have examples of serious problems with failure to report accidents in Kentucky and you have the data on that that have not been reported to MSHA, I'd like for you to -- you know, obviously you don't have to do it today but I'd like you to provide that to us. 
		MR. OPPEGARD:  Actually, I think, you know, the incidences I provided, MSHA people and the districts would be aware of them.  For instance, the Pike County case, there was MSHA investigators at the interviews, too.
		MS. SILVEY:  Right.  And you did, you said a citation had been issued in that case.  And maybe I should modify that a little.  If you have instances in which the MSHA are unaware in the field, if you would provide that to us, we would appreciate that.
		On the SCSR outby storage plan, because you had some concerns about that, and I understand your comment that your preference is for a specification oriented standard because we got a comment on that in Denver also.  And as you stated, in my opening statement, I did ask, I restated some of the things we said in the ETS and the fact that we are looking for comment and testimony from everybody in the mining public as to how best we can provide protection for people in the outby areas.  
		And then, my last point is, we, too, are quite concerned about, oftentimes, you know, we focus a lot on fatalities and we obviously, everybody knows that, we count fatalities.  But we are just as concerned about serious injuries, accidents.  And I'm immediately coming to the standards office for metal/non-metal and I can speak there.  I'm going to let Eric speak for coal.  I mean, I can speak for coal, too, but I'm going to let him do it.  
		But in metal/non-metal, we generally, and you know, you never say you did something in every instance and I won't say that, but generally we did accident reports when we had a serious injury in metal/non-metal because clearly there are lessons to be learned from serious injuries just as much as fatalities.  Oftentimes, the lesson to be learned can prevent a future fatality.  So, we tried in metal/non-metal to do accident reports for serious injuries.
		MR. OPPEGARD:  Well, I was speaking about coal.  And of those 35 in Kentucky, I don't know that there was any done, you know, MSHA did reports on any of those.  One clarification about that outby storage plan, my reading of the reg, the outby storage plan isn't just to protect outby workers, and I don't think it should be.  I mean, my 
thought --
		MS. SILVEY:  And it's not.  It's not just to protect outby.
		MR. OPPEGARD:  Right.
		MS. SILVEY:  It's anybody passing through that area.  It's not --
		MR. SHERER:  It's for everybody in by that location.
		MS. SILVEY:  Yes.
		MR. OPPEGARD:  And I think the importance of having them in the escape ways is that there may be instances and the, you know, the confusion and the chaos where even if they have two SCSRs, that they may not be able to get to them.  You know, they may start running down an escape way, but it's nice to know, or maybe they have one and can't get to the other one because of an explosion, for instance.  And it would be nice for them to know, well, if I can make 1,250 feet, there's a whole another cache of SCSRs there.  
		You know, I know I have an hour, I think what you have now, you have people who know they have an hour of oxygen.  For instance, in Sago, they probably could have come out of that mine.  But let's say, you know, they didn't know that.  They didn't know the conditions between the point of the explosion and the surface because there was no communication.  Had they had communication, they probably could have been told, you know, you guys can don your SCSRs and you can walk out.  It's not blocked, you can come on out.
		But obviously, you all know this, but the, you know, the situation that they're faced with or miners may be faced with anywhere is what if I crawl or, you know, what if I walk and I get to a certain point, you know, I got 2,000 feet or 2,500 feet and then I find my egresses blocked and I can't get out of the mine?  And I have to head back in and barricade and I'll have used my hour's worth of oxygen.  It would be nice for people to know, if I can make it a certain distance there's going to be another cache of SCSRs there.  I can get a fresh supply of oxygen and I don't have to worry about rationing my oxygen or just, you know, trying to conserve it for the long run.
		MS. SILVEY:  Did you want to talk about the reports?
		MR. SHERER:  Yes, I'll say some of those.  First of all, Mr. Oppegard, we basically agree with you that there does need to be sufficient oxygen for everybody to be able to exit the mine safely.  And that was the intent of the ETS.  
		Are you aware of any scientific study or research for the 1,250 and 2,500 feet that you mentioned?
		MR. OPPEGARD:  No.
		MR. SHERER:  Okay.  Coal tries to investigate all serious accidents.  And there are some that we miss for various reasons.  They're required that all accidents be reported.  Immediate reporting I think is the issue.  Do you have any further comments on that?
		MR. OPPEGARD:  Yes, I'm talking about doing accident investigation reports.  MSHA does not do accident investigation reports for most serious non-fatal accidents.  I mean, they are few and far between.  So, I mean, MSHA is going to sit in on those interviews ordinarily, but are they going to do a report?  No.
		MR. SHERER:  I'm unaware that there is a great deficit.  Do you have any information on that?
		MR. OPPEGARD:  Well, I think you can go back and get the Kentucky reports from 2004-2005, there's going to be about 35 of them and I'd be willing to bet that there's very few if any MSHA reports on those same accidents.
		MR. SHERER:  Have you tried to access those reports?
		MR. OPPEGARD:  Yes, I have.  I mean --
		MR. SHERER:  If you've got any specifics, we would appreciate it.
		MR. OPPEGARD:  Well, I don't know how I can give you any more specifics other than, you know, check with the serious non-fatal reports in Kentucky and get those names and mine numbers and, you know, see if you have reports for them.
		MS. SILVEY:  Okay, we understand.
		MR. SHERER:  We'll check into that.  Thank you.
		MR. KRAVITZ:  You asked a question about outby caches, whether or not we'd require them for all mines.  You know, basically, you know, the ETS states that if you can get out of the mine within one hour from your working place, then you wouldn't need a cache.  That's why we asked the question for recommendation for specification standards which you have given us.  Hopefully that answered your question.  But the rationale for the two SCSRs is basically it would give that person two hours of oxygen out of a mine that would take one hour to walk out of.  So, it seems like doubling that would take care of that person but I can see your perspective also.
		MR. OPPEGARD:  Well, I think the point is, and I understood reading it what the rationale was, but what if for some reason the SCSR doesn't work?  You know, as you know, I mean, when I worked for MSHA for two and a half years, we had all sorts of problems with SCSRs.  I mean, it was considered a crisis at one point, you know, the shake test and all of that.  You know, we had a lot of them that weren't working, a lot of them are old.  You know, we've got SCSRs out there that are 30 years old that some mines rely on, I believe.
		MR. KRAVITZ:  No.
		MR. OPPEGARD:  Okay.  But I think the point is that there may be instances where a miner is not going to have access to them even though he's supposed to have two.  What if he's at a point in the mine he doesn't have it with him, or you know, or the one that he does have, you know, doesn't work?
		MS. SILVEY:  I think we understand.  Okay.  
		MR. OPPEGARD:  Thanks.
		MS. SILVEY:  Thank you. 
		MR. KRAVITZ:  Thank you.
		MS. SILVEY:  Our next speaker will be Mark Watson with Alliance Coal.  Mr. Watson?
		MR. WATSON:  I'm Mark Watson with Alliance Coal.  Thank you for the opportunity to present our initial comments on the ETS and the proposed mandatory standard.  We'll be filing more detailed comments for the rule making record, but we believe it would be helpful for you to have the benefit of our initial thoughts on a couple of issues and questions.
		Our main concern and request is that it's vitally important that any standards approved by MSHA maintain the performance based approach that the ETS embodies.  As the ETS explains in Section 75.1714-4(c), and I quote, "It gives mine operators flexibility in determining the location, quantity and type of additional SCSRs stored in primary and alternate escape ways.  And its requirements are performance oriented.  It allows mine operators to assess the conditions unique to their mine and to establish SCSR storage locations based on these conditions.  These principals allow mine operators to fashion SCSR deployment strategies so it can best facilitate a successful escape for their miners under their own mine conditions and configurations."
		There are two examples I'd like to focus on today where this is critically important.  First, we believe that the ETS does, and the final mandatory standard should, allow a mine operator to employ safe havens or protected transfer stations for SCSR storage between adjacent primary and alternate escape ways and elsewhere.  A protected transfer station which I'll refer to as PTS is a strategically located and especially designed facility built to protect stored devices and enhance the likelihood of conditions that would facilitate a successful SCSR change-out procedure such as the preservation of irrespirable atmosphere.
		Our experience tells us that these circumstances can make all the difference when escape way has become contaminated in the aftermath of a fire or explosion.  For most applications, the PTS would be located in a crosscut and constructed of two protected walls designed to meet the same specifications for explosion resistance as permanent seals.  Each wall would contain an access door designed to withstand explosive forces up to 20 PSI.  Lifelines will be connected to each door to help facilitate the location of the PTS and the escape way during an escape through dense smoke.
		In addition to the stored SCSRs, the PTS would contain communication equipment, electronic atmospheric monitoring devices, first aid supplies, food, water and other supplies that are deemed critical.  It is critical to provide each miner with the tools necessary for safe evacuation in an emergency.  It is also critical that those tools be protected so that they would be available for years and in good condition when needed.  A PTS will provide the protection for SCSRs and other supplies.
		Any incident requiring the donning of SCSRs in the evacuation of the mine will be both physically and mentally stressful for the miner.  As we have discussed the PTS concept with our employees, we have learned that the location of a PTS during an escape will bring confidence to evacuating miners.  Our coal miners have given feedback that it would be motivating for them to push to reach a protected transfer station where they would be able to transfer SCSRs and compose themselves for the next lag of the evacuation.  As mentioned in the ETS, confidence is a major factor contributing to the success of a mine evacuation and survival in an emergency situation.
		In addition to allowing the construction of protected transfer stations, we believe the ETS does, and the final mandatory should, allow a mine operator the flexibility to store SCSRs at appropriate locations as determined by a functional testing of the specific SCSR devices that are to be stored.  We have performed extensive functional testing of different SCSRs that are currently approved by MSHA and NIOSH as one-hour devices.  Through this effort, we have documented that there are significant performance differences between specific models of SCSRs that should be considered when determining where these SCSRs are to be stored in the mine.
		MSHA has specifically solicited comments on whether a specification standard would be more appropriate than a performance oriented method of determining storage and location of SCSRs.  We believe that a performance oriented approach when consistent with the intent of the ETS is most appropriate and promises to maximize the safety benefits of our emergency preparedness investments in new SCSRs.  Furthermore, we believe these principals are fundamentally important for encouraging new technology that will enhance mine evacuation.  Rigid specifications for SCSRs as to types, locations and quantities would hinder advanced SCSR development efforts and discourage the introduction of creative evacuation and escape strategies.
		We want to make certain a miner has what he needs to escape in an emergency.  The Agency must continue to provide a flexible, practical and lifesaving bottom line.  Thank you.
		MS. SILVEY:  Thank you.  On your comment with respect to PTS, protected transfer station, and you provided in your testimony certain specifications, so I take it that you are using those in your mine?  Or are you, maybe I should ask that instead of --
		MR. WATSON:  We're currently in the process of constructing those in our mines and evaluating the specific design requirements.  We're working cooperatively with MSHA on that effort.
		MS. SILVEY:  Well, see, then my question was going to be do you have any experience with them.  So, you're in the process of putting them in now?
		MR. WATSON:  Yes, that's correct.
		MS. SILVEY:  When is this process going to be completed?  Or when is your time table for it being --
		MR. WATSON:  We constructed part of a station last week and we're doing some preliminary evaluation as to the seal and according environment that will be contained within the PTS.  To state in the exact time line, I'm unsure.  We're trying to get this accomplished as quickly as possible in order to have it available or to comply with the ETS.
		MS. SILVEY:  Well, the next thing I was going to say then, any information that you have on it and how it works or any evaluation results, so long as they aren't proprietary, I'm not asking you for any, if you can submit that to us before the record closes on the 30th of May, we would appreciate that.
		MR. WATSON:  Yes, we'll be following with more detailed comments addressing all of the issues.  I just felt that it was important to get on the record today to discuss what we were doing.
		MS. SILVEY:  I understand.  Okay.
		MR. SHERER:  Mr. Watson, was there any experience with this sort of installation prior to this ETS?
		MR. WATSON:  No.  No, we are experienced with the caching and storage of SCSRs but this is a concept that we came up with to safely comply and be most effective in our compliance with the ETS.
		MS. SILVEY:  Well, any specifics you have on it, if you can, whatever specifics you can make it, as I said you stated some but with respect to construction requirements, specifications and your evaluation of it, then we would appreciate that.
		MR. WATSON:  Yes, I expect that we will have a lot more information by the end of May in our final submission.
		MS. SILVEY:  Okay.
		MR. KRAVITZ:  I guess I've got one basically.  How do you ventilate these PTSs?
		MR. WATSON:  We propose to ventilate them by installing atmospheric detection system and essentially open the doors as they're adjacent to an intake escape way.  We would perform testing to determine basically the length of time that it would take for the room to get bad air and then we'd establish a standard procedure for essentially someone going by and opening the doors to ventilate the room.
		MR. KRAVITZ:  Did you consider using a borehole --
		MR. WATSON:  Yes, we have considered using a borehole.  As you are aware, it might not be practical in all applications.  In some applications, it could be.  And it's definitely, we obviously understand the benefits that a borehole could bring to this application and we will consider it.
		MR. KRAVITZ:  And one final, how many people would such a PTS accommodate?
		MR. WATSON:  At our largest mine, we'll be required to store in excess of 200 SCSR devices in that particular location.  It's not designed as a rescue chamber and that was the reason for using a different term to describe it.  It's not a rescue chamber.  We're not encouraging barricading.  We simply want to protect our SCSR cache and allow for a better chance for a clean environment to transfer SCSR devices in.
		MS. SILVEY:  Okay.  Anybody else?
		MR. SHERER:  I'm a bit at a loss as to why a borehole, in particular, a borehole and maybe a piping system couldn't be used to reach almost any area of any underground mine.
		MR. WATSON:  Oh, yes.  Some issues where we don't control the property, we may not be able to get a borehole, particularly in Central Appalachia.  A piping system could be effective.  Again, one of the keys to the concept is that we're protecting the cache from an explosion or a fire.  A piping system is something that would be hard to protect if you had to pipe at a lengthy distance in order to get to it.
		MR. SHERER:  Are you aware of any testing of piping systems?  I don't understand why it would be hard to protect a suitable --
		MR. WATSON:  No.  No, I mean, it's preliminary in our design and we'll be working cooperatively with MSHA in working out the details of all this stuff.  So, I'm sure that's something that will be looked into in more detail.
		MS. JANES:  Would your 1502-C -- would they also include accessing those caches?  And how ventilation may be changed if you open one door or the other in either escape way?
		MR. WATSON:  Yes, I would assume that would be appropriate, of course.
		MS. JANES:  But do you foresee, like you haven't written those training programs or anything yet since this is all under development?
		MR. WATSON:  Correct.  That's correct.
		MS. SILVEY:  Thank you.
		MR. WATSON:  Thank you.
		MS. SILVEY:  I think that maybe we should take a ten-minute break now.  So, if we could take a ten-minute break and be back in ten minutes please, I appreciate that.
			(Short recess.)
		MS. SILVEY:  Okay.  We will now reconvene MSHA's public hearing on the emergency temporary standard on mine evacuation.  Our next speaker will be Dick Vandeville with Orsanco.
		MR. VANDEVILLE:  No, I just signed.  I must have signed the wrong one.
		MS. SILVEY:  Oh, yes.  Okay, that's fine.  That's why I'm the --
		Then, next we will have Pearl Farler with Bledsoe Coal Corporation.  Oh, excuse me.  Before we start with you, Mr. Farley, is Dan Morgan here?  Oh, okay.
		MR. FARLER:  Hello, my name is Pearl Farler and I've been in the mining industry for 27 years.  Presently, I'm the Safety Director for Bledsoe Coal Corporation which is a subsidiary of James River Coal.  On behalf of myself and my company, I want to extend our deepest sympathy to the families of the miners who have died this year in our coal mines.
		I've been involved in mine rescue for over 25 years.  And currently, I am the mine rescue team captain of the James River Mine Rescue Team.  During my 25 years involvement in mine rescue, our teams have participated in two actual firefighting activities.  Also, I am proud to say that I have been a member of five national mine rescue team contest championship teams.
		We as coal miners all know that we have a dangerous job.  But I don't think there's one of us that would do anything else.  I'm proud to be a coal miner.  We are not dumb people.  We're coal miners.  We're highly skilled people.
		Now, in light of our recent occurrences, we must take steps to protect our miners, to further protect our miners.  MSHA, state and the coal industry must work together to promote safety in our coal mines.  The emergency mine evacuation rules have made great strides in this area.  However, we must not intentionally cause hardships to our miners.  MSHA has requested comments on the use of mechanized equipment during evacuation drills.  It is our opinion that it would be a hardship to require that all miners walk the escape way the entire escape way every 90 days.  One of our mines is over seven miles deep, and the average height being from 48 to 60 inches.  I do not want our miners to go into that mine, work their entire shift, and then have to walk or crawl the seven miles from the face to the surface.  
		Let's look at being able to transport our miners on equipment to comply with this provision.  There is a big difference between crawling that distance in a fire drill and exiting the mine in an actual emergency.  The main objective is for the miners to know the escape route, be familiar with the positioning of the lifeline and know where the SCSRs are stored.  This can be achieved by stopping at the appropriate locations while riding in mechanized equipment.
		MSHA has also requested comments on the distance between the self contained self rescuers storage caches.  The question is do we use a performance based standard or do we use a specific objective standard?  We recommend that MSHA use the existing five-minute travel distance table and use the multiplier of 9 instead of 12.  This multiplier would estimate how far a person would be able to travel in 45 minutes which would allow for a cushion of 15 minutes due to fatigue and the wearing of the rescuer.  The distances are based on the average mining height in the escape ways beginning at the portals.  This would provide for uniformity throughout the mining industry.
		As a company, we are in favor of the revisions outlined in the emergency mine evacuation rule.  However, there are areas besides the one I have mentioned that must be resolved.  We now must work together to iron out the details of the rules and use the common sense approach to properly protect our miners.  Thank you very much.
		MS. SILVEY:  Thank you.  With respect to your comment on walking during training, in training drills, and you stated about stopping at appropriate locations while riding mechanized equipment, should the miners -- is it your position that the miners during all of the drills, all four drills a year, is it your position that the miners can ride during all of those drills and just stop at the appropriate locations?
		MR. FARLER:  Our position is just that, if that miner has worked there over a period of time.  Now, a new miner that we just hired at the mines, yes, we need to take him over those escape ways, let him become familiar with them by walking him.
		MS. SILVEY:  By walking, okay.
		MR. FARLER:  And then, after that, let's put him on equipment.  Let's avoid these knee problems and back problems and things like that because our people, some of them are getting a little bit up in age and we need to take care of them.  It's a different thing if the mine is having a problem.  They will evacuate.
		MS. SILVEY:  Okay, that answers my question.  Anybody else have --
		MR. SHERER:  I do.  Are you able to ride both of your escape ways?
		MR. FARLER:  Yes, sir.  There's only certain areas that we will not be able to get through right now.  But I think we can rehabilitate those areas to where we can get down through those areas with mechanized units.  Yes, sir.
		MR. SHERER:  Thank you.
		MS. JANES:  I have a question.  During an escape, do you envision the miners trying to ride out in smoke or are they going to walk out?  Because that can cause --
		MR. FARLER:  I talked with a lot of people at the mines, a lot of them tell me that if there's a way to ride, they're going to ride.  A lot of them tell me if the belt line is running, they'll be on the belt line.  Now, I don't blame them.  I mean, if I could get out of that coal mine by riding that belt line, I'm sorry, I'm going to ride that belt line if there is something wrong in that mine if I can see and if the conditions allow me to do that.  But if they're not, they're going to have to go the way they know how.
		MS. JANES:  Okay.  So, it's your opinion that riding gives the same sensation and whatnot as walking to get to familiarize yourself --
		MR. FARLER:  No, it does not.  It does not.  No, it does not but it gives you the same direction.  You can point out the location of the lifeline.  You can stop and show them the locations of the SCSRs.  Everything that we need them to be able to identify, we'd be able to do that with the mechanized units.
		MS. SILVEY:  Anybody?  Okay.  Thank you.
		MR. FARLER:  You're welcome.
		MS. SILVEY:  Our next speaker will be Ken Russell with Jim Walter Resources.
		MR. RUSSELL:  Thank you, Ms. Silvey and the panel for allowing us to make comments here before you today.  We will be adding some additional comments before the May ending period.
		The employees of -- sorry, I'm Ken Russell, Jim Walter Resources.  The employees of Jim Walter Resources understand the effect of a mine disaster, and our heartfelt thoughts and prayers are with those affected by these events this year.  In 2001, we experienced a disaster at our No. 5 mine that took the lives of 13 of our friends and coworkers.  Living through our disaster further substantiates our answers in certain aspects of this latest emergency temporary standard.
		Part 50 Notification.  When dealing with a mine emergency, early notification is essential to both state and federal agencies.  But does MSHA really want mine site's responsible person to be distracted from the importance of managing an emergency scene to make a call that could result in losing precious minutes?  The ETS requires operators to notify MSHA immediately at once to within a 15-minute maximum of a 30 CFR Part 50-2(h) accident.  It is MSHA's belief that early notification will enhance appropriate emergency response.  However, when faced with a serious event, operators cannot rely on MSHA to manage the scene from a remote location during the first minutes of their mine emergency.
		Operators should be allowed to manage their event until it is controllable or the need for additional support is identified.  During these early stages, the 15-minute requirement can be intrusive and actually impair critical emergency management.  MSHA's strengths are in second and third-tier response such as NEUs, chromatograph specialists, ventilation control, roof control, electrical,  experts in the fields.  
		We recommend that the 15-minute notification period required by this ETS be revised to allow flexibility for the operator to manage situations involving serious injuries, entrapment and other related injuries that require undivided attention in the early stages of response.  In contrast, we support immediate notification for fatalities and accidents with the potential or requiring a mine rescue and/or recovery response.  
		As stated earlier, the time required to comply with immediate notification has the potential to become even more intrusive.  Per this ETS, an operator is obligated to contact their district office when reporting a 30 CFR Part 50 accident.  If the district office is unavailable, this ETS directs the operator to continue trying to make contact by following all prompts from their answering machine services.  If unsuccessful in contacting the local MSHA district office, this ETS continues by requiring operators to use an alternate number for contacting MSHA headquarters' 800 toll free line.  This line has a 24-hour, seven-day per week answering protocol.
		I was a part of a test recently at Jim Walters safety department where we called the MSHA headquarters' 800 toll free line to test the procedures and discuss the information needed to train our responsible persons.  After several rings, our call was answered and we were promptly asked to hold.  After nearly two minutes, the operator again answered and placed us on hold for a second time.  Later, when she returned, she asked for our complaint.  We explained that we had no complaint, just wanted to learn more about the emergency call line protocols.
		We were informed that the person we needed was at lunch.  She then offered to send them an email with my request which included a return request as soon as possible.  The original call was made at 11:40 a.m., Central Standard Time, and we received a return call from our district manager at 3:05 p.m.  During mine emergency situations where time is of the essence, a system such as it was will not work.
		We recommend that MSHA develop a universal call system to be used by all MSHA district offices.  To prevent unnecessary delay for after business hours calls, the system should be equipped with automatic rollover to the MSHA headquarters' 800 toll free line.  We further recommend that district offices and MSHA headquarters' 800 toll free line receiving the emergency calls be adequately staffed with persons trying to meet the intent of the service.
		Were delays in emergency response prior to this ETS a failure of the existing regulations?  We believe that requirements listed in 30 CFR Part 49 are clear.  Rescue stations and teams are required to be within two hours of the mine they are responsible for.  The Agency's attempt to enhance response by requiring more prompt notification will not change response to an emergency if a mine rescue team fails to respond in a timely manner.  This requirement is the same for in-house and contracted mine rescue teams.  It is the responsibility of the Agency, operators, and team members to ensure compliance with this regulation.
		MSHA can best serve our miners by evaluating each operator's emergency capabilities in facilitating through enforcement when necessary the development of appropriate procedures to meet today's existing standards.  If mine rescue team response time issues were in part responsible for generating this ETS, then that particular aspect of the regulation should be explored.  If delayed mine rescue response is specific to contract mine rescue teams or their availability, then MSHA should consider additional requirements for operators dependent on contracted mine rescue services.
		MSHA has asked for comments on whether a revision should be made to cover all unplanned underground mine fires or unplanned underground mine fires of particular types.  We do not support this position and believe that the definition of accident as related to Part 50 is adequate to ensure the safety of miners.  
		Lifelines, we support the use of lifelines installed in both the primary and secondary escape ways.  However, when developing future recommendations, we request that the Agency consider potential hazards associated with installation of lifelines in entries where track-mounted or mobile equipment is operated.  500 feet of the loading point in the primary escape way is where we feel it should start.  It would be intrusive and create hazards on advancing sections and retreating sections for mobile equipment, for supply holes, for chargers, for power centers, and we need that to be considered in this standard to be 500 feet out by the working face in the primary escape way only.
		Tethers, we believe that tethers should be provided and miners trained to make an informed decision as to how and if they should be used.  Since evacuation can be affected by conditions of the emergency, the use of tethers should not be mandatory.  
		75.1502, mine emergency evacuation and firefighting program of instruction, under this ETS, we recommend that 75.1502 be changed from a 90-day training requirement to a quarterly requirement.  Quarterly training provides operators the flexibility to maximize the training of miners in emergency evacuation as well as to train miners in a more timely manner if they missed their scheduled drill.  Quality training over quantity.  And the flexibility of the quarterly training instead of the rigid 90-day training is a request.
		The new paragraph 75.1502(c)(2) is added to enhance mine evacuation.  We disagree with the Agency's position that all people must travel the entire escape way every 90 days as part of the training requirement.  This is not training as the term is defined.  Physically traveling an entry does not train a person on escape.  
		Under the new ETS, operators must establish continuous lifelines throughout both primary and secondary escape ways.  It would be more logical to train miners on escape ways as to the entrances from their workstations, physically locating the lifeline system, SCSR locations and physical issues in the escape ways.  This would have the same effect upon training and education.  Furthermore, the six-week escape way walk is still mandated requiring two miners and a supervisor to walk the escape way in its entirety.
		Additional concerns with travel of escape ways by all employees are the physical condition of miners traveling the escape way.  Jim Walter Resources has an aging workforce whose average age is in the early 50's.  Requiring miners to walk escape ways would cause undue stress upon cardiovascular system or increase the risk for personal injuries.  
		Fire drills, the ETS is concerned with the quality of fire drills and the efficiency of miners' ability to fight fires.  This ETS eliminates the opportunity for underground miners to practice firefighting skills on actual fires.  We believe that underground mine firefighting can be enhanced if this ETS would give credit for at least one firefighting drill per year to be conducted on the surface of a coal mine where miners could actually fight fire with firefighting equipment.  The requirement for conducting underground fire drills in this ETS eliminates the ability for actual hands-on firefighting in an underground setting.
		75.1714(4)(c), MSHA has rejected a request to design SCSR storage sites that can be accessed from either the primary or secondary escape ways when located in parallel entries.  We believe allowing access to cached SCSRs from either the primary or secondary escape ways where possible is safe and reasonable.  Miners and operators benefit from permitting such a design from having one known location rather than two separate caches in different areas.  We recommend that MSHA reconsider allowing operators to cache SCSRs that can be accessed where possible from either the primary or secondary escape ways.  And further, that the 90-day test for stored SCSRs should be revised to eliminate the shake test for CSE units not transported or worn carried by the miner.
		I appreciate your time and that's all my comments.
		MS. SILVEY:  With respect to your testimony on the Part 50 notification and your training exercise that you all did in your safety department in terms of calling MSHA headquarters, we're going to look into that and if there are some improvements that we can make in that process that we can make then, we will do that.  
		In terms of your comment on the evacuation, the 1502 program of instruction and the drills, as I mentioned in my opening statement, I only say this because you had a reference to the six-week escape way walk in there, and I mentioned in my opening statement that we are considering putting all those requirements in 1502, just so everybody -- I mean, I think as we go on during these hearings, we want to clarify as much as possible so people understand what we are doing in this ETS.
		And also with respect to fire drills and your comment about on the surface, I think that that was an issue addressed in the compliance guide.  Didn't you address that in the compliance?  I think so, yes.
		MR. RUSSELL:  Not in terms of the fire drill but in terms of the SCSR training.  You can do the training on the surface.
		MS. SILVEY:  Okay.  Yes, I mean, the training on the surface, right.  That's what I meant, the SCSR training, that on the surface, that was addressed in the compliance guide.  So, you know, I'm going to stop here and kind of digress a minute.  You know, we all know that the way the ETS set up is set under the law, we have to do it and we have a certain amount of prescribed time for doing it and we want to do it as best we can.  And we know we are in the process, we are putting a lot of information out and that's one of the reasons I specifically laid out those 17 paragraphs in my opening statement.
		But when I did that, I said that within a week the transcript should be up on the website, and I think we have copies of the opening statement here.  So, I'm saying all of this to say that, you know, it's information out there but we want it out there and we want to hear your response to it before the comment period closes.  But if we can clarify anything, we will continue it; if you have any questions, you can continue to ask us and we will continue to try to issue compliance guides to the extent that we can to address issues that you might have.
		And then, the only final thing I would say and this goes to another one, with respect to the SCSRs being located in the primary or secondary escape way and parallel entries, I think I addressed that in the opening statement also.  But if people have specific recommendations with specific specifications for alternatives to what was in the ETS, then get any specifics you have to us.  That's all I have to say.
		MR. SPROUL:  Mr. Russell, I have one question about your recommendation on lifelines, and I appreciate your concern with lifelines in the working section with mobile equipment and the possibility of entanglement, et cetera.  But you're suggesting that in the intake escape way, that the lifeline start 500 feet outby, and the concern would be how would the miners on the section locate that lifeline in an emergency situation.  Do you have any suggestions about that?
		MR. RUSSELL:  No, sir, I really don't.  We thought about, you know, it would create we feel more like a hazard to be, waist high all the way up in the supply holes and the different things with the mobile equipment.  As we said, 500 feet out by the loading point, that would be the closest point we feel would be out of the way of the equipment and the chargers and the power centers and all that.
		MR. SHERER:  One thing, Mr. Russell, there is no requirement that the lifeline be at waist height.  You can hang it up against the roof using various methods.  There's bungee cords, there's clips, there's different things, so you can get it up out of the way of the mobile equipment.  We do still have some concerns about -- wires or that seems to be an area where we need more input and research.  Do you have initial suggestions?
		MR. RUSSELL:  No, sir.  I mean, I really don't.
		MR. KRAVITZ:  I'd like to make one clarification.  In your writeup here, you said MSHA prohibits the use of SCSRs for determining storage locations, you know, live SCSRs.  Actually, the proper language here is discourage use.
		MR. RUSSELL:  Right.  That's correct.  I know what you're talking about.
		MR. KRAVITZ:  Okay.
		MR. RUSSELL:  I didn't make comment to that.
		MR. KRAVITZ:  All right.
		MR. RUSSELL:  We're on the same page.
		MR. SNASHALL:  Do you have any specific episodes where contacting MSHA immediately has impaired the operator's ability to respond in an emergency?
		MR. RUSSELL:  No, sir.  The only thing that we would have that would do that in the 15-minute notification would be our responsible person is our control room operator where all the sensors and all those things are, all the data that goes underground.  If they had to evacuate the mine because of a mine fire explosion or something related to that at 3:00 a.m. in the morning, it would be very difficult for her to stop to call MSHA during that 15 minutes when she's trying to evacuate 200 people in a coal mine that are in various locations.  I'm just giving you an example there.  Have we had that?  No, sir, we haven't.
		MR. SNASHALL:  Is there any other person, because it is a large operation --
		MR. RUSSELL:  It is.
		MR. SNASHALL:  That not all duties would be on one person, isn't that correct?
		MR. RUSSELL:  Yes, sir.  What we have is we have a shop foreman that is there.  They could be gone checking the hoist, you know, we have escape way hoists that they are required to check on that particular shift.  That is their check daily and shiftly.  And he could be gone, there is no one else on the surface other than that.  Then the security guards.  
		I'm just saying the 15-minute notification, I understand the reasoning for it but it would be, you know, we just need a little flexibility there to, you know -- I would prefer, you know, taking a citation from MSHA and evacuate the coal mine properly and make sure that everyone is evacuated prior to, you know, stopping the evacuation to call MSHA.
		MR. SNASHALL:  On realistic training, there has been some discussion on the use or introduction of smoke in training.
		MR. RUSSELL:  Yes, sir.
		MR. SNASHALL:  Do you have any position on the use of smoke?
		MR. RUSSELL:  Yes, sir.  As far as, we have an area underground that is concrete floors and concrete walls and that we will be setting up for just that type of thing with Hollywood smoke and the lifeline.  But as far as doing it out in the coal mine and the entries and all that, we have not gone that far yet.
		MS. SILVEY:  So, to follow on to his question, so you are setting up this particular area for training in smoke --
		MR. RUSSELL:  Yes, we will.  We are in the process of doing that.
		MS. SILVEY:  Okay.  So, you have not done any?
		MR. RUSSELL:  None whatsoever.
		MS. SILVEY:  Okay.  So, do you, to further follow on to that, what's your position on that?  Do you think that's, I mean, how do you feel about the training in smoke?
		MR. RUSSELL:  I think donning the rescuer in the Hollywood type smoke in the, like I say in the concrete area, you know, the walls with the, you know, I have no problem with the practice training on it.  Out in the coal mine, I've never really given any thought to it.  I don't know.  But we're looking at setting up just that one particular area.
		MS. SILVEY:  Okay.
		MR. RUSSELL:  And Ms. Silvey, to answer your question, I just got those 17 questions this morning and I realize some were on there.  I apologize for that.
		MS. SILVEY:  No, no, no.  That's, no, I understand.  No problem.  In a way I'm kind of reiterating that for the benefit of everybody here at the hearing because I know some people didn't, you know, that's kind of the main reason I'm saying that.  Yes.  Okay, thank you very much.
		MR. RUSSELL:  Thank you.
		MS. SILVEY:  Our next speaker will be Michael Joseph with Perry County Coal.
		MR. JOSEPH:  My name is Michael Joseph.  I work at Perry County Coal.  I've been a coal miner for 30 years.  And I hadn't planned on coming down here today, I just decided to last night.  So, I ain't got no big speech for you or anything like that.
		I've just got a few concerns.  One of them is on the distance that the SCSRs will be stored.  You know, they got the 2,500, 5,000-foot rule, or you can make somebody the most physically enhanced person travel that escape way.  Well, I submitted a storage plan.  And, oh, my coal was over 48-inch average so I got to go with 5,000-foot rule, and then I was told that when the inspector come out there, if they didn't agree with it, then they may have somebody to travel my escape way and then a day or two later he would have him travel it under an SCSR.
		Now, I don't agree with neither one of those things.  One thing is that, you know, they could have a heart attack or a stroke and die.  And I'm really not going to ask my physically challenged person to walk that escape way.  And I don't know of anybody that would have the authority to do that but I may be wrong, but that's one part I don't agree on.
		The other part, as far as checking the SCSRs, I was told that my storage, outby storage areas, I would have to check those three times a day, go there and look at them.  And I don't agree with that either.  And we just need to get some kind of ruling, you know, as far as being consistent with everybody what we're going to do, you know.  Are you going to let us check those once a year because they're stored?  You know, they're not going to get damaged or whatever.  But three times a day, that's unrealistic.  You've got people that does pre-shifts and their job is to go into the mine and find hazards that will prevent somebody from getting killed or maybe an explosion or whatever, you know.
		We start having these guys check these SCSRs three times a day, then we're going to take away from their pre-shifts.  And the best way to prevent an accident is with good pre-shifts on the shifts.  So, I don't agree with that either and that's what I was told, too, when I submitted my SCSR storage plan.  
		Okay.  Another thing I didn't agree with was the 15-minute rule as far as reporting Part 50.  Now, like I hear some other people say, you know, we need some wiggle room or something or whatever because 15 minutes, if you've ever been around a place that had an accident, 15 minutes goes by just like that.  You've got a man hurt, you're trying to get onsite EMS to him to render first aid to him, you're trying to get first aid kits to them.  You're trying to call EMS.  Now, if it takes me over 15 minutes to do all of that, I'm just going to citation I guess and take it because I'm going to take care of my man first.  I'm going to make sure he gets the proper first aid and proper medical attention, and then I'll make the call.
		That's all I got.
		MS. SILVEY:  Thank you.  
		MR. KRAVITZ:  You said you disagreed with the method of determining the storage location.  Which method would you propose to use?
		MR. JOSEPH:  Well, I agree with the distance.
		MR. KRAVITZ:  You mean, just setting a specification?
		MR. JOSEPH:  Yes.  48 inches is 5,000 feet, isn't that it said?
		MR. KRAVITZ:  48 and above?
		MR. JOSEPH:  Yes.
		MR. KRAVITZ:  It's possible.  That was one of the things we threw out basically as an idea.  But we've heard other testimony today stating some other recommended standards.
		MR. SHERER:  What distance did you specify?
		MR. JOSEPH:  What did I specify?
		MR. SHERER:  Yes.
		MR. JOSEPH:  In my plan?
		MS. SILVEY:  Yes.
		MR. JOSEPH:  I believe it was right at 4,000 feet.  And we had above 48 inches, we just put it a little bit closer.  But as far as making somebody walk that, I don't think that's realistic.  You know, we're going to have old coal miners dropping dead.  
		And another thing, too, you know, there's going to be somebody get discriminated against because they weigh 300 pounds, they run a roof bone at the face.  They're going to go try get a job somewhere and these people ain't going to hire because they're going to say, well, you know, we're going to have to make him walk that escape way to determine our distances.  And they just won't hire him because of that.  So, I believe that would be unfair.
		And another thing, too, as far as making everybody physically travel the escape way every 90 days, that ain't going to happen.  These people won't do it.  These coal miners, they won't walk out of the mines.  You've got mines ten miles deep.  It would take them all shift to get outside, all shift.  And I think it's just to hard a burden on them, you know.  And most coal miners, if they're like me and they're about wore out in the knees and the hips and it's hard enough anyway.  Now, we're going to provide rides to ride those escape ways and you can ride just about the whole end of our escape ways.
		MR. SHERER:  Both escape ways?
		MR. JOSEPH:  Both escape ways.  One of the escape way has rail-mounted equipment that runs on it.  And the other escape way, we've got diesel powered mantrips we can use.
		MR. SHERER:  Are you aware of our compliance assistance that basically said you don't have to walk?
		MR. JOSEPH:  That you don't have to walk the escape way?
		MR. SHERER:  Yes.
		MR. JOSEPH:  Well, I was told you did at first and then it kind of backtracked.  And I was going to bring that up anyway.  
		MR. SHERER:  Sure.
		MR. JOSEPH:  And they did backup and say no, you don't have to physically walk it, because I asked this person, I said, do you, when you go to Lexington, I said are you physically in Lexington?  And they said yes.  I said do you walk down there?  No.  I said, well, I don't either but I get there and I'm -- you know, we've got to do some common sense in what we do.  And there ain't nobody more for the miner than I am.
		MR. SHERER:  We agree, sir.  One other question I've got is you said that you've been told to examine your SCSRs three times a day?
		MR. JOSEPH:  Three times a day.
		MR. SHERER:  Do you know what your SCSR manufacturer's recommendations are for storing SCSRs as far as examinations?
		MR. JOSEPH:  The examinations is the shake test and all that every 90 days.
		MR. SHERER:  That's all that's required by the ETS, sir.
		MR. JOSEPH:  That's all that's required?
		MR. SHERER:  Yes.
		MR. JOSEPH:  So, I don't have to comply with that, too.  I get it.
		MS. SILVEY:  Okay.  Thank you, sir.
		MR. JOSEPH:  Thank you.
		MS. SILVEY:  Our next speaker will be Tim Baker with the United Mine Workers.  
		MR. BAKER:  My name is Tim Baker, it's B-a-k-e-r.  I am Deputy Administrator for Occupational Health and Safety for the United Mine Workers.  I'm pleased to be here in Lexington.  I did miss Denver.  And I guess I'll be happy to be in Arlington but I'm going to reiterate something that has been stated before.  We have extremely large concentrations of miners, extremely large underground mines in Northern West Virginia, in Western Pennsylvania and in Alabama, and we ought not to be in Lexington, Kentucky.  If you're going to be in Kentucky, that's fine.  Let's go to a coal field community.  Okay, let's go where the miners can go.
		We've heard from a couple of advocates for miners.  We've heard from a lot of company people.  And I believe they should have their right to say so, but we can't expect my membership to work 8-10 hours a day, 5-6 days a week, and be able to attend a hearing that's 12 hours away.  
		You have successfully, to this point, eliminated participation by rank and file miners, and that's wrong.  This rule is about rank and file miners.  This rule should be in the coal fields.  This rule should be in -- or this hearing, this hearing should be in Washington, PA.  This hearing should be in Alabama.  That's where this hearing should be, not Denver, not Lexington.  Lord knows not Arlington.  I am not aware of any coal mines in Arlington.  So, that is one thing that irritates us to begin with.
		But on behalf of President Cecil Roberts, Secretary Treasurer Dan Kane, the membership of the United Mine Workers, and in fact, miners from across the nation, I am pleased to be here to offer comments to the Mine Safety and Health Administration's emergency temporary standard for mine evacuation.  The circumstances that bring us together today are both tragic and preventable.  By MSHA's own admission in the preamble to this rule, studies completed as far back as 1990 demonstrated deficiencies in a number of critical areas.  The Agency has known donning SCSRs in hazardous conditions pose a problem to miners.  You knew evacuation and escape plans were not sufficient and the training was inadequate.
		Everyone knew after Wilberg, after Pyro, after Cue Creek and after JWR that the regulations on the books were not protective enough to save miners who find themselves trapped after an explosion or inundation.  And nothing was done to correct the problem.  Nothing has been done to correct the circumstances that existed.  This government has failed to act.  Despite the pleas from miners and their representatives, MSHA has failed to act.  It is unfortunate for the Agency and perhaps a little bit uncomfortable for some of you to accept, but your failure causes heartaches of the deepest kind.
		The failure of the government has added to the countless number of widows and orphans and surviving family members that is the legacy of this industry.  To date, the Agency has failed many workers.  This year, 26 times this government has failed to protect coal miners.  I must announce to each of you at this public meeting, on behalf of the mine workers, this failure can no longer be an option.
		The time has come for this Agency to perform the duties for which it was created to do.  You're not here to protect the industry.  The industry can take care of themselves.  They're pretty good at it.  You're not here to protect the industry.  The Agency's duty is to protect the miners.
		Coal operators, whether they're surface operations, underground operations on their mines, whatever they are, will take care of themselves.  They do not need an agency to enhance their production capabilities as was mentioned earlier because the belt air rule was simply that. It enhanced production capability.  It didn't provide any safety, it did the production end.  They don't need that.  It is time that the Agency falls back to what should be the sole responsibility of the Agency, and that is to protect miners. 
		In this year alone, there have been 14 events that have claimed the lives of miners.  14 failures that took away 26 human beings.  In four short months, we have surpassed the total number of deaths for all of 2005 and we are but two away from eclipsing the number of fatals in 2002.  It is unfortunate that citing numbers in a given year seems to sanitize the message, and that should be the message that should be heard.  22 in this year and 30 in that sounds very impersonal.  
		It's kind of part of what the corporate industry likes you to hear, ah, it's just a number.  It's just the cost of doing business.  These miners had names, they had wives, they had children.  They had families that loved them and they had families that will miss them.  These 26 miners killed in 2006 are Thomas Anderson, Alva Bennett, Jim Bennett, Jerry Groves, George Hamner, Terry Helms, Jesse Jones, David Lewis, Martin Toler, Fred Ware, Jack Weaver, Marshall Winans, Cornelia Shates, Don Bragg, Ellery Hatfield, Shane Jacobson, James Thornberry, Edmond Vance, Paul Moss, Timothy Caudile, Willard Miller, Jackie Toler, Robert E. Runyon, Gary Jones, David Bowen, and Rick McKnight, varying in ages from 72 to 26.  
		They all had names, they all had families.  They're not just numbers.  They were somebody.  Real, honest, hardworking people who should never have had to pay with their lives simply to provide for the family.  How many more will there be before the government stands up and looks at what is important?  How many more before MSHA decides who the real stakeholder is?
		There is another fact that I must point out before I get on to the comments on the rule itself.  The reality of these situations for those of us who have been in the industry for some time is that had 26 coal miners died, one or two at a time as is usually the case, we would not be sitting here today.  It would simply be the cost of doing business.  And unfortunately, that is the reality.  The price is too high.  Coal miners can no longer be expected to pay this price.  
		And I would suggest that I heard earlier today that the Agency and the Bush Administration should be commended because injuries are down and fatalities are down.  I would argue that policies and programs that run through the institution or that run through the government take years to take root.  I would suggest to you that this administration's policies are beginning to take root.  January 2nd wasn't an aberration.  January 2nd was the result of years of policies and years of programs that have been put in place that do not enhance miners' health and safety but do advance the needs and concerns of mine operators.
		I do want to say for the over-arching part of the emergency standard, I believe it is a good first cut.  I believe it's a good first cut, it's not where we need to be.  I commend those people who worked very hard on working on it.  But I must say that this rule generally speaks to coal mining.  And being a coal miner myself, I understand that.  But there needs to be a broader aspect to this.  There are limestone miners.  There are any number of other underground miners out there and my colleagues from the United Steel Workers, to be quite honest with you, and the Operating Engineers are quite offended that they feel left out.  They feel this rule should have applied to them.  
		And I would agree that any miner's life is precious, that any miner deserves the same protection.  And I would suggest as you go through this process that this rule be broadened to include anyone who works underground in the mining industry.  Those people need the same protections.  And I understand, you know, in some of those industries, you're going to say, well, we don't require SCSRs.  Maybe it's time.  You know, let's be honest, we have SCSRs in coal mines today because of a 1980 court order.  This agency didn't pursue that.  It was a court order.  So, maybe we need to force those other industries to use SCSRs and being storing them and begin doing those things that are necessary.
		With respect to the training requirements for the SCSRs for mine evacuations or for escape, and while I know that you have unhinged some of the training requirements from Part 48, I would suggest to you that the union would look at the situation as anything that is dealing under this rule with SCSRs with evacuation training, with escape training, anything that deals with this rule needs to be uncoupled completely from Part 48.  It's over-burdened, it's over-taxed.  We can't throw another thing into it.  Whether it's a new regulation or whether it's a petition for modification at a particular mine, they can't take anymore.  Eight hours is simply that, eight hours.  
		And I know that I'll be able to hear from some operators who will approach me and say, you know, eight hours is what you have now.  If you want another four to five hours, you're talking away from production, it costs us money.  Simply don't care.  It's the cost of doing business to train these miners, and some things in these instances must be unhooked so you can prove the importance of that particular topic.  
		I would suggest SCSR training is one of those issues.  Escape training is one of those issues.  Evacuation procedures are those issues.  They need that kind of self importance that says you don't do it with first aid and you don't do it with this issue and you don't do it with that issue.  This is important and you have to do it this way.  So, we would suggest that anything that deals with that is uncoupled.
		The union does support the idea of practicing the donning of SCSRs and walking the escape ways.  We believe that this will greatly benefit miners who may be required to escape in a hazardous situation.  However, we are convinced that the language is not sufficient enough to compel compliance.  Federal inspectors are required by the Mine Act to complete inspections of the entire underground areas of the mine every quarter, every 90 days.  This includes walking escape ways.  The union believes this rule should require the operator to perform these 90-day drills to coincide with the days that the federal inspector is going to examine the escape way.  
		If MSHA does not take, in our opinion, if MSHA does not take an aggressive position regarding these drills, they will be nothing more than paper compliance.  Plain and simple, operators will not comply.  You will get names if you want names of who walk the escape way.  I'm not so certain they really will have walked the escape way.  However, requiring it be done with a representative of the Secretary there will ensure compliance.  And we believe that needs to be done.
		Been a lot of discussion about notification within 15 minutes.  I guess my, and we do agree, 15 minutes, and the argument that you're taking away precious time whether it is to help an individual who is injured or to take care of a disastrous situation I suggest to you is ridiculous.  If you're calling from one section to another to get emergency treatment to somebody, somebody on the surface is going to hear that.  If there is a disaster, if there is a major problem, somebody on the surface should hear that and it doesn't take that long to make the notification.  15 minutes is not unreasonable.  As a matter of fact, 15 minutes is what we would believe would be adequate.
		There was a question somehow about communications interruption, if communications was interrupted you could take longer than 15 minutes.  I'm a little bit confused by what that means.  And if that means communications from underground to the surface is interrupted and it goes beyond 15 minutes how long can you wait, I would truly suggest that if there is a report whether that is verbal or whether you get an AMS alarm or whether you get some other communication to the surface that says there's a problem and after 15 minutes you're not able to communicate with individuals in that section, I suggest you make a call to MSHA.  I suggest you let them sort out the situation.  
		So, any time an event occurs that should be reportable, that should be done within the first 15 minutes.  And any fire should be reportable.  And the reason that we believe this to be the case is I think that MSHA statistics and MSHA's information will back up that these events tend to occur again and again many times at the same operation, near the same location.  So, what we have is we have an event that occurs for maybe 20 or 25 minutes.  They put the fire out but then there is never any follow up to make sure the hazard is removed.  So, three weeks later we have another fire, and then three weeks later we have another fire.  
		It is a problem.  It should be reported immediately.  I mean, obviously the most frequently cited section of the regulations is 75.400 accumulations.  They can't keep their house clean now, maybe if we give them a little incentive because they got to notify and somebody got to show up, maybe that will keep it a little clean.  So, the notification should be for the fires.
		Directional lifelines, we do agree that the directional lifelines should be in every intake or in every primary and secondary escape way.  There should be a national standard that says the cone faces this direction, you know, the cone faces, goes in-by, you know.  And if you're going outby and you run into the flat end of the cone, turn around, you're going the wrong way.  And if your hand slides over, keep going.  There should be some standard that does that.
		I must say, however, and I'll try not to dwell on this too long, we had several petitions for modification that required lifelines in the intake escape way and then the secondary escape way in Northern West Virginia and Western Pennsylvania.  And whenever this Agency pushed through the belt air rule, you eliminated that protection from our membership.  You eliminated it at every one of those mines because the judge decided that you deserve deference and they moved ahead, and those lifelines came out of those mines, I want you to know.  So, we're glad you're putting them back in but they shouldn't have been taken out in the first place.
		Plans, when you deal with plans for SCSR storage for your evacuation or for escape, to be quite honest with you, we feel that some of the experts that will deal with this issue have been completely cut out of this picture.  There is no seat at the table for miners or the rest.  Now, you can say, well, by inference we figure you're going to be there.  Or because you're there, we're sure you're going to get included.  That's not the case and we all know that not to be the case.  In many instances, my membership is able to get there or the union's membership is able to get there because they forced their way into the situation.  In other situations, that will not occur.  
		We believe that the final writing of this rule should have some caveat that says you will have miners or miners' reps sit in when these plans are being created, when these plans are being designed, when they're being revised.  They have the most at stake here.  They should have the most input here.  We believe that needs to be included.
		Generally speaking, for the SCSRs themselves, we believe that there should be a specific distance, and what we believe is that MSHA along with NIOSH and miners' reps should do those studies that determine what that distance may be.  And I know that NIOSH has done a lot of studies on these and other issues within mining, but flexibility should not be an option.  There should be a requirement that you have caches of SCSRs at certain specific distances and that's the way it should be.  
		We don't see the viability of having 800 different mining operations submit 800 different plans to be approved because we have heard from the Agency for years these plans get unwieldy and out of control and we can't keep monitoring them constantly.  That's what we heard on belt air.  That's frankly what we heard on belt air.  Too many plans, too many modifications, too many of this and too many of that.  Now you're going to have every mine with a different plan.  Let's formalize this.  They don't need flexibility, I don't care what any of them say.  In this issue, they do not need flexibility.
		Training on SCSRs, and we believe training including donning that SCSR and using that SCSR is very important.  We have some problem, or I guess I should say we have a major problem with transferring from one SCSR to another.  For years and years and years we have said miners do have a difficult time if not trained routinely donning an SCSR.  But to have a CSE being donned in a section and switching over to an Ocenco down the line, if those things don't match up identically it's a problem.  And I think we should all recognize that problem.
		What we are suggesting is that at each specific mine site, one SCSR is used.  If that's an Ocenco, that's an Ocenco.  If that's a CSE, that's a CSE.  If that's a burden on the employer, that's too bad.  If that's an expense on the employer, that's too bad.  The idea here is to give miners the very best chance for escape.  We would suggest that having them switch between differing SCSRs causes a problem that ought not to be there.  
		We need this language in this rule when it's finalized to push for new technologies so that rather than having to don the second SCSR, that you simply plug in a new cannister.  That would be the optimum.  That would be the direction to go.  So, not only do we recommend that one type of SCSR per mine, but this rule somehow push, whether it's a manufacturer of this industry and I suggest if you push the industry and require it, they're going to push the manufacturer somewhere to get it, that those new technologies become available.  And rules can be technology driving.  I think anybody who has dealt with the Pennsylvania diesel legislation will understand it.  It can be technology driving.
		We've had brief discussions with our members about tethering.  On the surface, we believe that, you know, tag lines and tethering people together is maybe a very viable and beneficial method of getting people out of the mine.  There are some concerns I think that it raises that we haven't had the chance to thoroughly discuss.  But at least on the surface, I think that, you know, having everybody hooked together would be a good idea.  I think maybe in Alma that might have made a major difference.  I mean, I don't know that for a fact but, you know, everybody was together at one time and then suddenly two were lost.  
		So, but we do have to, you know, kind of go through that process rather slowly because there is an obvious concern that if you have ten people tethered together and one man goes down, what do you do at that point?  And how do you handle that situation?  And the instinct for miners, let's be honest, and you've been around them long enough to know that they're going to drag whoever they can out of there.  So, there's some concerns as to how that training should go, how you train people to use the tether and how you train people what happens if these events occur.  So, we need to look through those particular scenarios.
		Heard some discussion earlier about storage of SCSRs in sealed areas, whether that's 200 or 20 or whatever you're going to do, between primary and secondary escape ways.  I would suggest to you that if we're going to continue to look at the situation and say, well, you know, that 20 PSI will make our seals good enough, then we ought not to permit it.  And the Mine Workers are going to pursue whatever avenue we can to get back to where the Act is because the Act requires that any sealed areas be sealed with bulkhead.  The regulation requires 14-inch block laid wet and we got Omega, we got Styrofoam seals in an underground coal mine.  And I would submit to you that the test that was done at Lakeland the middle of this month was a farce.  
		20 PSI is not nearly enough to sustain the forces.  And maybe a bulkhead won't either but I will tell you this.  We saw what happened at Sago.  We also know what happened at No. 50 mine in West Virginia where they had an explosion in the sealed area, and those seals withstood the pressure.  And those were bulkhead seals.  We need to return to some of the roots of where this law came from because we're traveling down a slippery slope that we ought not to be.
		And I may be almost done.  We have had some discussion and we are looking at what to do with mine rescue teams and notification of mine rescue teams.  We strenuously object to contract teams.  The Act, there is no caveat in the Act for contract rescue teams.  There is no caveat in the regulation for contract rescue teams.  If you want to run a coal mine, you have a rescue team.  If you can't have a rescue team, you ought not to have a coal mine.  You know, it's one thing to say we got them in there, it's another thing to be able to have people available to get them out. 
		I understand there is concern for those operations which we have historically looked at as small mines, 20 or less, and that may be a problem and there may be something we need to look at.  But large operations have also fallen by the wayside on the number of rescue teams they have available.  The way we read the regulation and the way the mine workers read the Act is if you run for instance a three-shift coal mine, you should have three rescue teams because you're required to have two teams readily available.  And if you have one team that's underground worker, they're not readily available.
		At smaller operations, you may well need to have some other setup.  But that shouldn't be a contract rescue team that takes me from A Mine and, you know, Jeff Kravitz from B Mine and another guy over here from C Mine and Butch Oldham from another mine who don't work together, who don't train together.  I think the Sago experience for those who are familiar with it shows that contract teams do not work.  They just do not work.  And that's, you know, that's the price of doing business.  
		And before I forget, the lifelines, we would consider lifelines, if they're not fire retardant, they're not worth having.  So, there's got to be some play on that, they've got to be fire retardant.
		For the most part, that is the bottom line of my prepared comments except to say, I guess to finish up, that there are a few things that are undone that the Agency needs to look at.  We have not addressed nonflammable belts, an issue that needs to be looked at.  The use of belt air is, as Tony Oppegard said, one of the worst things this Agency ever did no matter how people in their own minds convinced themselves that this was a good idea.  And if the Agency hopes to restore at least some semblance of credibility with rank and file miners out there, we need to get back to the basics.  We need to get back to not dealing with what flexibility the operators need.  We need to get back to what in reality protects miners.
		Flexibility in our opinion is very clear.  Flexibility is you eliminate discussion on nonflammable belts.  You eliminate discussion on rescue teams.  That's flexibility.  You no longer talk about surge -- that's taken off the books, that's something we don't need to discuss.  And you eliminate talk of formalizing an accident investigation process.  And flexibility then means that you allow diesel-powered generators in an underground mine and that you allow the use of belt air to ventilate working sections.  That's flexibility.  
		All of those issues, every one of those issues have been relevant within the last six years.  The ones that were eliminated benefit operators.  The ones that were instituted benefit operators.  The miners want to know what benefitted them.  They haven't seen much.  It's time to refocus.  Operators will make their money and operators will find a way to get along.  But miners don't necessarily have that option.
		I'd be happy to entertain any questions.  And I do appreciate what I do believe is the first cut of a rule that could be very beneficial.
		MS. SILVEY:  Thank you.  I've got a few comments, maybe a couple of questions.  With respect to your testimony on walking the escape ways, and I'm sure as you said you're going to provide formal comments to us before the comment period closes.
		MR. BAKER:  Yes, absolutely.
		MS. SILVEY:  But is it your position here today that, and I want to just make it clear on what your position is at least at this point, I'm not saying that it can't change, is your position that the miners should walk the escape ways in all instances?
		MR. BAKER:  My thinking is that miners should walk their escape ways, and I don't know if we do that in segments.  For instance, you walk, today you walk to the first cache of SCSRs, and so you've located that.  You've done the lifeline thing.  And in 90 days, maybe you walk the second portion of that escape way.
		MS. SILVEY:  Okay.
		MR. BAKER:  We do understand an aging workforce.
		MS. SILVEY:  Okay.  Well, I just wanted to --
		MR. BAKER:  Yes, we do understand an aging workforce.
		MS. SILVEY:  I understand that.  Okay.  The next, with respect to the issues concerning tethering, and you gave one, an example, if you have any specific concerns with respect to tethering, if you could include that in your comments?
		MR. BAKER:  I will certainly do that.
		MS. SILVEY:  Okay.  The next one goes to with respect to lifelines.  In the mines that you are familiar with that use lifelines, are the lifelines -- what are they made of?  And are they fire, let me use your term, fire retardant?
		MR. BAKER:  Yes.  At the Cumberland Mine in Western Pennsylvania, they actually used a cable with direction cones on it.  So, I mean, it's obviously fire resistant.  They're not going to burn the cable, and they use those at Cumberland.  And I believe that it was a nylon line at Emerald Mine that they used which was fire resistant.  And they had the cones and I believe it was every hundred feet, intake and secondary escape ways.
		MS. SILVEY:  Okay.
		MR. SPROUL:  May I follow up on that?
		MS. SILVEY:  Yes.  Yes, sure.
		MR. SPROUL:  Do you have any recommendations on fire resistant to a certain standard?  Because certainly there's a whole range of definitions of fire resistance.
		MR. BAKER:  Well, and I guess I would probably have to leave that to somebody with greater knowledge on those particular aspects, but I would suggest that if you got a cable, I mean, that works.  I mean, and let's face it, then we can't make the argument, gee, this is really expensive to get this flame retardant -- it's a cable.  You got them all the time at the mine.  So, that may be the solution.
		MR. SPROUL:  Thank you.
		MS. SILVEY:  Okay.  
		MR. KRAVITZ:  Tim, you said you would support a specification standard for cache location.  Do you have anything in mind as to what you'd support?
		MR. BAKER:  Well, you know, I think that's a difficult question.  I certainly don't think that we ever want to go, for instance, and I don't know, you know, how low the mines go at this point, but under 48 inches, you know, if you say under 48 inches, you got to have them at 2,500 feet or 2,000 feet.  Maybe 2,000 is a better number.  How will that affect somebody that's in 36 inches?  Is that going to be sufficient enough?  Maybe what we really haven't done here is divided this thing up to the full extent it needs to be.
		I am not familiar with any real low coal mines anymore.  I know whenever I first started we had some 24-inch mines, so 2000 feet may be way too far for that guy to crawl.  So, maybe we need to do some more division of heights and then make recommendations, well, if it's, for instance, if it's 24 inches, you got to have them at 1,200 feet or 1,000 feet.  And if it's, you know, four feet, then you got to have them at 25, you know, however those numbers work out.
		And I just, it's our concern that giving flexibility, these things won't necessarily be placed where miners can best get them.  They'll be placed in places where in the event of a disaster they don't get harmed, that these SCSR caches don't get harmed.  After all, that's the investment they're making, okay.  So, to have that flexibility is not what we're, I mean, is not what we're looking at.  Have them available to those miners.
		MR. KRAVITZ:  Thank you.
		MR. SNASHALL:  Do you have any thoughts on the design of SCSR storage space -- not location so much as with the design of the storage itself that could enhance miners' confidence?  We have heard that concepts such as safe haven may promote miners' confidence in that they will go into a chamber and be able to more easily don an SCSR.
		MR. BAKER:  And I do actually.  To be honest with you, the first time I heard of the safe haven I guess put that way was here.  Now, I have talked with some safety folks from other operations who said, you know, if we build a wall on one side and build a wall on the other side and put a cache in the middle, are we okay?  That may be effective.  But I think there are some parameters we got to look at.
		If we're simply talking about building a walk or if we're simply talking about building a Styrofoam bulkhead, it's not a safe haven.  Those things can't withstand the pressures.  And we want them to withstand, if in fact you have a force near there, we want them to withstand that pressure.  So, if you're looking at a situation where you have bulkhead with a door in it, that may very well be something to look at.  
		At the same time, if you're not going to have positive pressure inside that particular area, I'm not sure that you can ever call it a safe haven.  I just can't fathom how you can say, well, we have this dead air space in here and that's going to be your safe haven because you really do need a positive pressure setup whether that's through a borehole, through piping, however you do that.  I think first time you open that door and three guys crawl through you've contaminated the whole area so you don't have a safe haven.  
		A bulkhead with submarine type doors with positive pressure may be a confidence building thing for miners to say that I know I have a place I can go.  I know I have a place where I can change out.  And in fact, if I screw up donning the self rescuer, I know I have a little more time to do that.
		MS. SILVEY:  I mentioned that term, you say safe haven, I said "safe haven."  And at this point in the rule making process in my opening statement, I think I mentioned to you what, at least at this point, is MSHA's concept of what represents a safe haven or a hardened room.  And I would reiterate to everybody here, if you have comment on that definition of a hardened room or if you have other specifications, we heard from a commenter who talked about certain things that they were considering and they were just in the process of doing this, they don't have any evaluation results from that right now, but as Jeff mentions to me here, if you have test results from anything, if you have experience with any of these safe havens, or as we called it, I think when I gave it as a definition, I gave it as a hardened, and I specifically as I said talked about how we thought if one were to do that, that they would be so constructed.  
		So, if anybody, you know, has information on that, either specific experience, if you are in the process of doing something with them, if you have evaluation results, if you can get all of that to us before 30 May, we would appreciate that.
		MR. BAKER:  And I would suggest that there are those portable chambers and we just had the chance to look at one of those at our convention.  Quite frankly they are costly, depending on what you're looking for.  It's my understanding that this particular chamber could hold 12 people up to four days and they use these in Australia.  And I guess as we look at the situation when you deal with a hardened room or a hardened area, what we would look for in the process is not necessarily something that is built into the mine that can't be moved because now it's 3,000 feet back there and then it's 8,000 feet and then it's 12,000 feet and then it's 20,000 feet.
		This particular chamber that they had could be put either on rails or rubber tires and could be put in a location whether that's a switch, whether that's a crosscut within so many feet of the face of the mine.   So, I mean, that is always one option and it does eliminate, and I, you know, want to dispel any rumors, we're not asking for a rescue chamber every 3,000 feet.  You know, that's not practicable.  But you can move this thing to varying locations.
		There is also a manufacturer in Eastern Pennsylvania that we're trying to get a hold of who does an inflatable rescue chamber.  Some of our folks in West Virginia had the chance to look at that and we're quite impressed.  They tried to cut it with a knife, they couldn't cut it with a knife.  They tried to poke holes in it, it still sustained its structure.  And it was flame retardant and flame resistant. 
		So, you know, there are a lot of things out there to look at.  But from our perspective, we do need something that's mobile, something that, you know, advances or retreats with the equipment that you're using, whether that's a continuous miner on long wall setup or whether that's a long wall in retreat, because it doesn't do any good to put a hardened room at the head drive of a long wall section and then you're 20,000 feet up in there and you're never going to make it.  I think Wilberg prove that to us you're just not going to make it out.
		But I will certainly get the specs and get the information on that and, you know, cost issue is going to be an issue that operators will have to deal with.  But I think we need to look at that.
		MS. SILVEY:  Thank you.  
		MR. SNASHALL:  We've heard that evacuation training under conditions of smoke can be particularly beneficial to the trainee.  Do you have any comment on that?
		MR. BAKER:  In my experience, and of course I've never done it in the underground setting, we have used MSHA's facility at Beckley, and even in that where everybody going in there knows that, you know, you don't have to worry now about a real fire or a roof fall or anything else, it can be very, very educational.  I think we've had some underground miners that thought that they would be calm, cool and collected, and you can find out in a hurry that some folks are going to be a problem.  And I think people need to understand that if they can do those drills with smoke, I think you can find out what, just besides the hazardous condition that exists, what problems you're going to have personnel wise, with the personalities and individuals.  And we've seen that.
		So, I would suggest that that is very beneficial and we've used that at every training we've had at Beckley in the last seven years since I've been around.  So, it is beneficial and I would think in an underground coal mine -- and I'm trying to think, somebody told me they did one of those in an underground mine and you folks might have been involved in it or it might have been NIOSH, but they actually smoked their underground mine and did a disaster and it was very beneficial to them.  You know, they found out who could follow direction and who got lost back in those turns somewhere.  So, if you can do it, I would suggest that you do it.  And I would encourage the mine worker membership to push for that certainly.
		MS. SILVEY:  Okay.  Thank you. 
		MR. BAKER:  Thank you very much.  And I'll see you in Arlington.
		MS. SILVEY:  At this time, is there anybody in the audience who wishes to speak who did not sign up on the list?
		MR. FARLER:  Ms. Silvey, I have a --
		MS. SILVEY:  Yes?
		MR. FARLER:  When I did my presentation, I made reference to the five-minute travel distance table.  And I don't think --
		MS. SILVEY:  Yes.  Would you identify yourself?
		MR. FARLER:  Yes.  I'm Pearl Farler.
		MS. SILVEY:  Right.  Okay.
		MR. FARLER:  That's the five-minute travel distance table that's already in effect.
		MS. SILVEY:  Yes, yes.  Thank you.
		MR. FARLER:  And it does address mine heights.
		MS. SILVEY:  Bledsoe Coal Company.  So, is there anybody else?
		MR. FULLER:  Mrs. Silvey?
		MS. SILVEY:  Yes, sir?
		MR. FULLER:  Charlie Fuller with United Central Industrial Supply.  I did not come to make a presentation or to speak.  But, I don't prefer to do that, I would just like to make everyone here aware that there is a product out there and I have some brochures, I'm not here to make sale, I just want to show you what's available.
		MS. SILVEY:  Okay.
		MR. FULLER:  I haven't heard anything about this particular product mentioned today.  I do have brochures.
		MS. SILVEY:  Thank you.  Anybody else?  Anybody else who wishes to speak?  
		Okay.  Then if there is no one else who wishes to speak or make any further comment or testimony, on behalf of the Agency and the Department of Labor and of my colleagues who are here, I want to extend our appreciation to all of you who have participated in this public hearing.  Your comment and testimony will help us develop a final rule which provides, and this is our goal we're trying to achieve in this rule, to provide the most appropriate and effective protection for miners.  And we will do this in a manner that takes into consideration your comment and testimony that we hear throughout this rule making process.
		As I said earlier, we will have another hearing in Friday, 28 April, in Arlington, and on the 9th of May in Charleston, West Virginia.  And we invite you to participate if you can in those hearings.  And finally, the public hearing comment period closes on 30 May and we invite you to submit any additional comment and testimony which you might have to us in Arlington.
		And at this time, having heard that no one else wishes to provide testimony, I will conclude this public hearing.  Thank you.
		(Whereupon, at 12:45 p.m., the hearing in the above-entitled matter was concluded.)
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	REPORTER'S CERTIFICATE

CASE TITLE:	Public Hearing on MSHA's Emergency Temporary
		Standard for Emergency Mine Evacuations
HEARING DATE:	April 26, 2006
LOCATION:	Lexington, Kentucky

	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.

			Date:  May 1, 2006

			Ronald N. LeGrand, Sr.
			Official Reporter
			Heritage Reporting Corporation
			Suite 600
			1220 L Street, N. W.
			Washington, D. C.  20005-4018

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	TRANSCRIPT OF PROCEEDINGS

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	Heritage Reporting Corporation
	(202) 628-4888

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	Heritage Reporting Corporation
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