U.S. DEPARTMENT OF LABOR
                                   
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                 MINE SAFETY AND HEALTH ADMINISTRATION
                                   
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                  DIESEL PARTICULATE MATTER EXPOSURE
                                   
                OF UNDERGROUND METAL AND NONMETAL MINES
                                   
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                            PUBLIC HEARING
                                   
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                                TUESDAY
                          SEPTEMBER 16, 2003
                                   
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                         SALT LAKE CITY, UTAH
                                   
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                   Panel Members:
 
                   George Saseen
                   Jim Petrie
                   Becki Smith
                   Deborah Green
                   Doris Cash
                   Jon Kogut                                 I N D E X
       
      
           Introduction by Ms. Smith...................     3
           Presentation by Mr. Petrie..................     9
 
           SPEAKERS
 
           David Graham................................    15
           Mike Crum...................................    36
           Rick Anderson...............................    47
           Fred Fox....................................    60
           Mark Good...................................    73
           Wes Leavitt.................................    92
       
       
       
       
       
       
       
       
                          P-R-O-C-E-E-D-I-N-G-S
                       MS. SMITH:  Good morning.  My name is
           Becki Smith.  I am the Deputy Director of MSHA's
           Office of Standards, Regulations and Variances,
           and on behalf of Dave Lauriski I would like to
           welcome you to this public hearing today.
                       The purpose of this hearing is to
           obtain input from the public on the proposed rule
           published in the Federal Register on August the
           14th, 2003 addressing Diesel Particulate Matter
           Exposure of Underground Metal and Nonmetal Miners.
                       I would like to take the opportunity
           to introduce the members of the panel joining me
           today.  On my immediate left, Deborah Green is
           with the Office of the Solicitor for Mine Safety,
           Doris Cash is from the Metal and Nonmetal
           Organization of MSHA, and Jon Kogut is with our
           Program Evaluation and Information Resource
           organization.  And on my right, Jim Petrie is with
           Metal and Nonmetal, Northeastern District.  Jim is
           the district manager in that district and also
           chairman of this committee.  And George Saseen is
           from MSHA's Technical Support Center.  There are
           several other staff members with us in the
           audience today who you may be hearing from as the           proceedings go forward.
                       This hearing is being held in
           accordance with Section 101 of the Federal Mine
           Safety and Health Act of 1977.  As is the practice
           of this agency, formal rules of evidence will not
           apply; therefore, cross-examination of the hearing
           panel will not be allowed, but the panel may
           explain and clarify provisions of the proposed
           rule.  Also, as moderator of this public hearing I
           reserve the right to limit the amount of time each
           speaker is given as well as questions of the
           hearing panel.
                       Those of you who have notified MSHA in
           advance of your intent to speak will be allowed to
           make your presentations first.  I will call
           speakers in the order that requests were made.
           Following these presentations others who request
           an opportunity to speak will be allowed to do so.
           We invite all interested parties to present their
           views at this hearing, and if you wish to speak
           please be sure to sign in at the registration
           table.  So far I have five of you signed in to
           speak this morning.  We will remain in session
           today until everyone who desires to speak has an
           opportunity to do so.  Also, if you're not signing           up to speak today, we would like for you to sign
           the general sign-in sheet so we will have an
           accurate record of those in attendance at today's
           hearing.  We will also accept written comments and
           data at this hearing from any interested party,
           including those of you who are not speaking today.
                       When I call on you to speak, please
           come to the speaker's table and begin your
           presentation by identifying yourself and your
           affiliation for the record.  If you have a
           prepared statement or any supporting documents for
           the record, please leave a copy with us.
                       You can give written comments on this
           hearing to us today, or you can send them to
           MSHA's Office of Standards electronically, by
           facsimile, by regular mail, or by hand delivery
           using the address information listed in the
           hearing notice.
                       In addition to the hearing today,
           there will be three other hearings -- in
           St. Louis, Missouri on September the 18th, in
           Pittsburgh, Pennsylvania on September the 23rd,
           and in Arlington, Virginia on October the 7th.
           The post-hearing comment period will end on
           October 14, and submissions must be received on or           before that date.
                       A verbatim transcript of this hearing
           will be made as part of the record and it will be
           posted on MSHA's website.  If you would like a
           copy sooner, you could make your own arrangements
           with the court reporter.  The company information
           is available at the registration table.
                       We'll take a lunch break around noon,
           and short breaks in the morning and afternoon as
           needed.
                       Before we begin I would like to give
           you some background on the proposed rule we are
           addressing today.  On January the 19th, 2001, MSHA
           published the final rule addressing the health
           standards to underground metal and nonmetal miners
           from exposure to diesel particulate matter.  The
           rule establishes new health standards for
           underground metal and nonmetal miners by requiring
           use of approved equipment and low sulfur fuel, and
           be setting an interim and final concentration
           limit for diesel particulate matter in underground
           mining environment.  MSHA established staggering
           effective dates for enforcement of the
           concentration limits.  The interim concentration
           limit of 400 micrograms per cubic meter of air of           total carbon was to become effective on July 20th,
           2002.  The final concentration limit of
           160 micrograms per cubic meter of air of total
           carbon was scheduled to become effective
           January 20th, 2006.
                       On January 29, 2001, several mining
           trade associations and individual mine operators
           challenged the final rule and the United
           Steelworkers of America intervened in the case,
           which is now pending in the District of Columbia
           Circuit.
                       On July 5th, 2001, as a result of
           Phase 1 settlement negotiations, MSHA published
           two notices in the Federal Register.  One notice
           delayed the effective date of Section 57.5066(b)
           related to tagging requirements in the maintenance
           standard.  The second notice proposed a rule to
           make limited revisions to Section 57.5066(b) and
           added a new paragraph to Section 57.5067(b)
           regarding the definition of "introduced" in the
           engine standard.  The final rule was published on
           February 27th, 2002.
                       Phase 2 of the settlement agreement
           was reached in June of 2002.  Under the agreement
           the interim concentration limit became effective           on July 20th, 2002, without further legal
           challenge.  Mine operators had one year to develop
           and implement good-faith compliance strategies to
           meet the interim concentration limit.  MSHA agreed
           to conduct compliance assistance during the
           one-year period.  MSHA also agreed to reenter
           rulemaking on several other disputed provisions of
           the 2001 rule.  The legal challenge to the rule
           has been stayed pending completion of the
           additional rulemakings.
                       On September the 25th, 2002, MSHA
           published an Advance Notice of Proposed
           Rulemaking.  MSHA noted in that Advance Notice
           that the scope of the rulemaking is limited to the
           terms of the settlement agreement and addresses
           MSHA's intent to repropose the interim and final
           concentration limits.
                       On July 20th, 2003, MSHA began
           enforcing the interim final limit of
           400 micrograms.  The agency's enforcement policy
           is also based on the terms of the settlement
           agreement and was discussed with the litigants and
           stakeholders on July 17th, 2003.  The enforcement
           policy is written into a Compliance Guide, and
           both the Compliance Guide and a Program Policy           Letter are posted on MSHA's website on the Sole
           Source page for diesel particulate matter.
                       On August the 14th, 2003, MSHA
           published it's proposed rule which would
           accomplishing four things:  (1) revise the interim
           concentration limit measured by total carbon to a
           comparable permissible exposure limit measured by
           elemental carbon, which renders a more accurate
           diesel particulate matter exposure measurement;
           (2) increase flexibility of compliance by
           requiring MSHA's longstanding hierarchy of
           controls at metal and nonmetal mines, but prohibit
           rotation of miners for compliance; (3) allow MSHA
           to consider economic as well as technological
           feasibility in determining if operators qualify
           for an extension of time in which to meet the
           diesel particulate matter limits; and, (4),
           lastly, simplify requirements for a diesel
           particulate matter control plan.
                       At this time Jim Petrie, who is, as I
           said, chairman of the Diesel Particulate
           Committee, will do on overview of the proposed
           rule, and after Jim's presentation I will begin
           calling speakers.
                       MR. PETRIE:  Thanks, Becki.                       Can Everybody in the back see that all
           right?  Okay.
                       This is just a brief summary of the
           rule.  It compares the proposed rule and the
           existing rule.  There's only about ten slides, so
           it's very short.  If you have any questions of
           clarifications that you would like me to address
           as I go through these slides, just raise your hand
           and speak up, and we'll try to address them.
                       These are the sections of the exiting
           rule that we're going to be addressing in this
           presentation:  50.66(a) on the interim limit,
           50.60(c), special extensions, which are the
           extension of time requirements; 50.60(d), which
           are exceptions to the diesel particulate limits
           which allow the use of respirators or require the
           use of respirators for inspection, maintenance,
           and repair activities; and then 50.60(e), which is
           a prohibition on respiratory protection; 50.60(f),
           which prohibits administrative controls; and
           50.62, control plan.  These are the requirements
           in the existing rule that we'll be comparing with
           the proposed rule.
                       As far as the interim limit, the
           existing rule is based on a 400 microgram per           cubic meter total carbon surrogate.  It's a
           concentration limit.  You measure the
           environmental concentrations.  The proposed rule
           is based on a 308 microgram per cubic meter
           personal exposure limit, and it's based on
           elemental carbon as the surrogate.  We came up
           with the 308 by dividing 400 by 1.3.  The 1.3 was
           established as part of the settlement agreement.
           Now, in addition to this -- it's not on the slide
           -- we would be using an error factor of 1.12 for
           the interim limit.
                       The final limit is not addressed in
           the proposal.  The agency feels it needs more time
           before it can propose a revision to the final
           limit, and we're going to undertake a separate
           rulemaking to address that.  We're not sure at
           this time when that will occur.
                       50.60(c) is special extensions.  Those
           are the extension of time requirements that are in
           the existing rule.  In the existing rule it
           applies only to the final limit.  It only
           considers technological constraints as far as
           being able to use this extension of time, and each
           mine is limited to one extension of not more than
           two years.  We are proposing to apply the           extension of time requirements to both the interim
           and the final limit.  We would consider both
           economic and technological constraints, and there
           would be no limit on the number of extensions but
           you would have to renew it each year.
                       I wanted to talk a little bit about
           hierarchy of controls.  In the existing rule you
           must use engineering or work practice controls to
           comply with the limits.  Rotation of miners is not
           allowed.  You must obtain approval to use
           respiratory protection for inspection, maintenance
           and repair activities, and if you use respirators
           they must meet the requirements in MSHA's existing
           metal and nonmetal air quality standards, which
           are 57.5005(a) and (b).  That standard
           incorporates by reference ANSI Z88.21969.
                       Under the proposed rule operators
           would be required to utilize feasible
           administration in engineering controls with the
           exception that rotation of miners would not be
           permitted, and if controls are infeasible you
           would be required to use respiratory protection.
           You would have to exhaust, though, the feasible
           administrative and engineering controls before you
           would be allowed to use respiratory protection.           The respiratory protection requirements would be
           the same as in the existing rule.  It would be
           based on those requirements that are in the air
           quality standards, and it would be tied to ANSI
           Z88.21969, with the exceptions that it specifies
           the types of filters to be used.
                       Regarding rotation of miners, the
           existing rule prohibits the use of administrative
           controls, but it uniquely defines administrative
           controls as rotation of miners.  Any other types
           of administrative controls would be allowed.  The
           existing rule identifies those as work practice
           controls, and examples of that would be limiting
           the length of the work shift.  Those would be
           allowed under the existing rule, but you would not
           be allowed to use rotation of miners.
                       The proposed rule is very similar.  It
           would also prohibit rotation of the miners and
           other administrative controls would be allowed, so
           it's really a difference in semantics between the
           two.
                       Regarding respiratory protection, the
           proposal does not include provisions on medical
           evaluation of respirator wearers or transfer of
           miners who cannot wear respirators.  We do,           however, solicit comments on these issues in the
           proposal.  We did not include those requirements
           because it was not addressed in the settlement
           agreement.
                       Regarding the DPM control plan, under
           the existing rule it would be triggered by a
           single violation.  It would require verification
           monitoring to determine whether the concentrations
           are still under the various limits.  It would be
           in effect for three years from the date of the
           violation.  In the proposal it would be triggered
           if a mine was not in compliance within 90 days of
           the citations, so you would have 90 days to get
           into compliance, and if you did within that time
           frame you would not need to submit a control plan.
           There is no specific verification monitoring
           requirements, and it would remain in effect for
           one year after the citation was terminated.
                       Lastly, the proposed rule contains
           several other conforming changes.  Those mainly
           would correct various wordings.  Like if a section
           of the rule talked about concentration limit, it
           would change that to read that it's a personal
           exposure limit.  If it talked about TC as the
           surrogate, it would change it to EC as the           surrogate.  We didn't go into detail in describing
           what those conforming changes are in this
           presentation.
                       And then lastly, the Compliance Guide
           and the Program Policy Letter are posted on the
           Single Source page on MSHA's website.
                       Any questions on that?  Okay.
                       MS. SMITH:  While Jim is turning that
           off, our first speaker, Mr. Graham, if you would
           like to come up to the speaker's table, please.
           If you would give and spell your name for the
           court reporter and your affiliation, please.
                       MR. GRAHAM:  David Graham of General
           Chemical and the MARG Group.  I have Mr. Henry
           Chajet here with me as one interpreter if you have
           any problems with my accent.
                       MS. SMITH:  You're doing fine.  Thank
           you.
                       MR. GRAHAM:  Thank you.  The MARG
           Diesel Coalition appreciates this opportunity to
           testify and MSHA's recent cooperative efforts to
           resolve our differences over the first and only
           workplace diesel exhaust particulate matter
           exposure limit in the United States.  We will be
           filing written comments before the close of the           rulemaking record that will include an updated
           review of MSHA's health risk assessment and an
           updated technology and economic feasibility
           analysis.  In the interim, we note that our
           conclusions have not changed.  The rule is not
           justified by a valid risk assessment, is not
           feasible, and does not meet MSHA's statutory
           mandates or OMB's data quality requirements.
                       To partially settle our differences,
           DOL, MARG and the NMA agreed to an interim,
           partial settlement of our court challenge in the
           January 2001 rule.  That agreement creates a
           settlement standard, and this rulemaking is
           intended to implement that agreement.  To the
           extent that it follows the provisions of the
           settlement agreement, we endorse the rulemaking
           proposals.
                       We are disappointed, however, that
           MSHA has not yet deleted the 160-microgram limit
           scheduled to take effect in 2006.  We strongly
           encourage MSHA to delete the 160 limit immediately
           in this rulemaking, and many of our comments are
           directed at the need for MSHA to act now.
                       The interim partial settlement with
           MSHA recognizes the industry's position that the           DPM limits are not scientifically justified or
           technically or economically feasible, but permits
           implementation of the 400-microgram total carbon
           limit, converted to elemental carbon as a
           practical compromise of the legal dispute, in
           exchange for reexamination of the 160 limit and
           critical changes to the flawed 400 rule.  While we
           appreciate MSHA's settlement efforts in its
           attempt to fix the flawed rule, we insist upon the
           deletion of the 160 limit now in this rulemaking.
                       Since the rule was rushed to
           publication on the last day of the last
           presidential administration, scientific evidence
           and extensive field testing has proven what we
           knew at the time, that the rule was an unfortunate
           "shoot first, aim later" approach to regulations.
           This rulemaking is the tip of the iceberg of the
           massive efforts and resources dedicated in the
           last three years to reexamine the rule and try to
           fix its critical faults; yet these efforts should
           have been taken well before the rule was ever
           promulgated and must be accelerated now as we
           approach enforcement of the settlement agreement
           terms and the prospect of an unachievable,
           unjustified 2006 standard.  We encourage MSHA and           DOL to end this struggle with the errors of the
           past, which is causing all of us to miss
           opportunities to focus our resources for the needs
           of today and the future.
                       Dr. Jonathan Borak, Yale University
           Medical School, a world renowned expert in
           toxicology and risk assessment, agrees with the
           conclusions of the EPA that the science does not
           support the establishment of exposure limits.  His
           prior written comments, which demonstrated the
           lack of scientific basis for MSHA's published risk
           analysis, are being updated to address the new
           materials in MSHA's preamble.  We will file the
           update in the record before the end of the comment
           period.
                       No other federal agency has proposed
           much less adopted, an occupational DPM exposure
           limit for diesel particulate matter -- diesel
           engines in construction, tunneling, rail, truck,
           marine or bus depots, repair facilities,
           agriculture or aviation.  The silence demonstrates
           MSHA's unique and isolated error in its approach
           in diesel regulation.  OSHA and other agencies
           regulate diesel exhaust components (for example,
           carbon monoxide, nitrous oxide and hydrogen           dioxide).  Even though OSHA regulates far more
           workplace diesel engines and potentially exposed
           personnel than MSHA, including tunneling with
           potentially high exposures, MSHA stands alone in
           its experimental regulation of diesel particulate
           matter through one of its many components, carbon.
                       The MSHA decision to measure and limit
           diesel exhaust through one of its thousands of
           components, total carbon particulate, was based on
           the use of an experimental sampling device and a
           new analysis method.  All of the MSHA feasibility
           opinions and analysis used to support the rule
           were based on the total carbon regulatory scheme
           that had never been (1) used by MSHA or any other
           regulatory agency; (2) tested by sampling,
           analysis and measurement in industrial settings;
           (3) directly associated with any specific disease
           risks; or, (4), correlated to the other thousands
           of components of diesel exhaust to determine if
           carbon measurements accurately and consistently
           represent diesel exhaust levels.
                       The device that MSHA helped develop
           for measuring diesel carbon particulate for this
           rule, the submicron impactor, was shown to be
           flawed before the rule was finalized and again           during field tests following the litigation
           interim settlement agreement.  We are concerned,
           however, that the latest attempted design fix
           developed after the rule was adopted will continue
           to produce flawed results.
                       At this time we do not believe that
           the 5040 method is being followed precisely by
           MSHA's lab, which we think has made corrections to
           try to fix its premature adoption.  While we
           appreciate MSHA's efforts and its acknowledged
           preamble experiments to achieve acceptable
           results, we are concerned that the ongoing and
           repeated "fix on the run" will continue to produce
           results which are not meaningful and instead will
           produce erroneous enforcement and further wasted
           resources.
                       We ask that MSHA prepare and publish
           for review a detailed comparison of its current
           actual sampling and analysis procedures compared
           to the published NIOSH 5040 method.  We look
           forward to submitting a further analysis of the
           accuracy and precision of the 5040 method and
           MSHA's method to the rulemaking record.
                       Unlike every other MSHA health
           standard, MSHA prohibited employees with personal           protective equipment in its January 19th, 2001 DPM
           rule.  We are thankful that MSHA now recognizes
           this error, and we endorse the proposal to permit
           personal protective equipment.  The need to
           correct this error should serve to remind the
           agency and any reviewing authorities or courts of
           the fatal flaws incorporated in the rushed and
           premature rule.  Moreover, we strongly encourage
           MSHA to delete the rules prohibition of the
           rotation of personnel as a protective option.  It
           makes no sense for a safety and health agency to
           prohibit effective options for employee
           protection.
                       MSHA's 160-microgram total carbon DPM
           limit is based on a now revoked ACGIH TLV drafted
           by an MSHA staff member who served on the ACGIH
           TLV committee while he was drafting the MSHA rule.
                       Following disclosures in the trona
           ACGIH litigation, DOL signed a settlement
           agreement requiring it to investigate conflicts
           identified in the litigation.  DOL has issued a
           new policy which now prohibits the overlapping
           activities that resulted in the MSHA and ACGIH
           standards, but MSHA has not yet withdrawn the 160
           DPM standard.  While the staff member has now           retired from MSHA and no longer serves on the
           ACGIH TLV committee, the damage must be corrected
           and the tainted standard withdrawn.
                       As demonstrated by the comments in the
           rulemaking record of internationally recognized
           mining engineering expert H. John Head, MSHA has
           not demonstrated that the 400 or 160 limits are
           feasible.  Mr. Head is updating his comments, and
           they will be placed in the record before the close
           of the comment period.
                       In the interim, we note that the
           industry has begun to test MSHA's anticipated
           primary DPM control, retrofitted exhaust filters,
           with only limited success in meeting the
           400 microgram limit and no success in meeting the
           160 microgram limit.
                       MSHA's preamble notes that 30 percent
           of the mines tested in the agency's baseline
           sampling program were not in compliance with the
           400 microgram standard.  While the preamble
           describes many of the MSHA recommendations to
           those mines, for most it presents no evidence of
           the recommendations resulting in compliance.
                       We suggest that MSHA avoid additional
           litigation by establishing a program to issue           extensions to mines that justify requests before
           counterproductive enforcement visits result in
           adversarial situations.
                       Elemental carbon.  We endorse MSHA's
           proposal to conform to the interim, partial
           settlement agreement and measure the 400 DPM limit
           by measuring its elemental carbon equivalent
           rather than total carbon.
                       Our independent research led to our
           prior recommendation of a 320 microgram elemental
           carbon equivalent to the 400 total carbon limit.
           MSHA rejected that conversion number, and we
           continue to be concerned that the MSHA conversion
           will permit unfounded enforcement actions.  We are
           reviewing MSHA and industry data for the
           submission of additional comments.
                       We generally oppose enforcement of
           occupational health standards based on a single
           sample because standards are based on long-term
           exposure and laboratory results of single samples
           are not an accurate representation of a single
           shift exposure.
                       We continue to be concerned that
           MSHA's newly developed and then revised DPM
           sampling and analysis "single shift" sample           analysis system is not feasible and does not
           provide accurate, precise, and reliable results.
           We repeat our request that MSHA retain unused DPM
           filter sections for analysis by mine operators,
           and we do not understand the agency's response
           that its lab process will not permit the retention
           of this critical evidence.
                       First, we do not understand MSHA's
           comments that its use of two punches from one
           filter does not permit the remainder of the filter
           to be retained for operator analysis.  Second, we
           are not convinced that the corrections MSHA has
           added are sufficient to produce a feasible system.
           We ask that MSHA publish its two punch comparative
           data (with separate, individual entries for each
           corresponding punch and blank filter results and
           corrections) for analysis and comment.
                       At Federal Register Page 48701, MSHA
           asks if any aspect of Section 75.1914(g),
           diagnostic engine emission tests, should be
           adopted as part of the final rule.  MARG responds
           that no other provisions are permitted or needed
           by the settlement agreement.  The coal rule was
           based on engine and filter performance instead of
           exposure limits, and its provisions are not needed           for this performance-based rule.
                       At Federal Register Page 48710, MSHA
           asks for comments on its belief that a 25 percent
           or greater reduction in DPM exposure from an
           engineering or administrative controls is
           significant and thereby effective for its
           decision-making on technological and economic
           feasibility.  We object.  First, MSHA states that
           the 25 percent reduction can be achieved by the
           control itself or in combination with other
           controls, thereby eliminating the critical role of
           the individual component under consideration and
           rendering its guideline meaningless.  We suggest
           that controls must be evaluated independently, but
           in reference to site-specific conditions and DPM
           levels, if meaningful decisions are to be made
           regarding their significance or effectiveness.
                       We emphasize that the significance of
           a reduction achieved by a control must be viewed
           in light of the compliance result, not the
           percentage reduction.  A mine with DPM exposures
           of over 1,000 micrograms can apply 25 percent
           effective control, reducing exposures to 750, but
           has not achieved a significant or effective result
           and will require continuing personal protective           equipment use, rendering the control not
           significant.
                       At Federal Register Page 48712, MSHA
           seeks comments on whether the DPM rule should
           include new respiratory protection mandates or
           plan provisions.  DPM rules should not be extended
           to address remotely related topics covered by
           stand-alone regulations.  We believe that the
           current respiratory rule, 57.5005, are adequate
           and should be uniformly applied as they are now to
           all respiratory applications.  As a result, MARG
           opposes any additional respirator-related
           provisions being added to the DPM rule.  In
           response to MSHA's request for informational costs
           of these possible additions to the rule, we
           suggest that MSHA analyze the results of the OSHA
           lead and cadmium rules and their impact on the
           regulated industries.
                       At Federal Register Page 48716, MSHA
           seeks comments on its proposal to obtain a control
           plan provision.  We oppose the plan proposal even
           though it is an improvement over the January 2001
           provision.  The DPM rule interim settlement
           permits implementation of a performance-based DPM
           limit.  A control plan merely adds needless           paperwork, without benefits, and causes additional
           cost and potential for meaningless citations and
           fines.
                       At Federal Register Page 48670 to 71,
           MSHA sets forth a misleading and incorrect
           overview of the 31-Mine Study.  As parties to the
           settlement agreement, we disavow the implication
           that we agreed to the described study conclusions
           or results, or that our disagreements were limited
           to the few recited by the MSHA preamble.  In
           fact, we are disturbed that our request for
           acknowledgement and publication of our
           disagreement with MSHA's interpretation was
           ignored.  For the record, we again will provide
           our comments on MSHA's reports, but we emphasize
           the following:
                       The report is based on the MSHA
           estimator, and it is meaningless for a
           determination of feasibility, as we repeatedly
           stated in previous discussions and submissions.
           The estimator assumes perfect ventilation and air
           mixing and applications that are feasible for all
           equipment and controls.  The estimator does not
           exist in the real world.  MSHA acknowledges it has
           inadequate information on controls, but does not           acknowledge the vast errors resulting from the
           estimator's invalid ventilation assumptions.  We
           object to MSHA's continued reliance on the
           estimator, regardless of its inappropriateness,
           for its economic and technical feasibility
           analysis.
                       MSHA states, "The analytical method
           gives an accurate measurement of the total
           carbon."  That conclusion is rejected by the
           scientific community, and MSHA itself, which
           admits interference and establishes an attempted
           method of converting total carbon measurements to
           elemental carbon.  While MARG prefers elemental
           carbon to total carbon to reduce interference, we
           object to the preamble's conclusion.  Moreover, we
           note MSHA's acknowledgement that in the controlled
           study about 25 percent of the samples were voided
           (Federal Register Page 48683).  In our written
           comments we will address our continuing concerns
           regarding the feasibility of the analytical method
           as applied to elemental carbon.
                       MSHA states that the 31-Mine Study
           supports a finding that the standard is
           economically feasible.  However, MSHA's use of
           gross revenue as a measure of economic feasibility           is invalid.  This method ignores the international
           commodity markets that determine the viability of
           mines by setting market prices for their
           production.  For the last ten years in the mining
           industry volume and gross sales indicated massive
           losses more frequently than profitability.  MSHA's
           analysis is flawed since it fails to examine the
           impact of the additional cost of its regulations
           on industry margins and viability.  Copper, lead,
           zinc, silver and molybdenum industries are
           examples of industries driven to financial
           disaster in the United States by foreign
           competition and regulatory costs, regardless of
           gross production or gross sales statistics.
                       Mining engineer John Head's analysis
           contained in the record demonstrates that MSHA's
           cost estimates are wrong.  MSHA has not corrected
           those flaws, and its lack of a valid economic
           analysis mandates the deletion of the 160
           standard.
                       Federal Register Page 48672 states
           that MSHA used the same sampling strategies for
           collecting baseline samples as it intends to use
           for collecting samples for enforcement purposes.
           However, the same page states that the results of           two analyses were averaged and that dynamic blanks
           were also tested and/or an unexposed filter was
           used to correct for background levels.  The
           preamble further states that "in the event results
           are greater than 100 elemental carbon, a smaller
           punch of the same filter was taken and used.
           Blank correction average results were used."  At
           some point we would like a description in detail
           that these new sampling and analysis procedures
           and confirm that MSHA will use the same
           precautions for enforcement sampling.
                       We again ask that MSHA provide a table
           with the data from its two-punch results from the
           same filter, in addition to the blank sample
           correction result and the corrected average
           result, to permit an analysis of the variance and
           feasibility of this new system.
                       Hardly visible in the many preamble
           charts and graphs in a single sentence on Federal
           Register Page 48676 indicating that almost
           30 percent of all mines had one or more compliance
           assistance sampling results above 400 total
           carbon, adjusted to the elemental carbon
           equivalent.  During the compliance assistance
           visits many mine operators reported that MSHA was           not sampling in the highest DPM concentration
           locations.  Moreover, if we are correct in our
           understanding that this 30 percent noncompliance
           rate was based on a highly variable sampling and
           analysis system, the one where MSHA used the
           average of two punches and other corrections, we
           suspect that a far larger number of samples will
           be above the 400 limit as enforcement sampling
           begins, and that almost none of the mines can
           achieve compliance with the 160 limit.
                       We appreciate MSHA's cooperative
           efforts in reducing DPM exposures and encourage
           further similar efforts.  However, we believe that
           the Federal Register preamble confuses these
           helpful efforts with MSHA's duty to demonstrate
           the feasibility of its regulation.  Of course, a
           realistic feasibility determination should have
           preceded the promulgation of the original
           regulation, and the agency's helpful, cooperative
           efforts are not a substitute for meeting its
           statutory mandate in that proceeding or in this
           one.  In fact, the very need for these visits and
           lab tests and their outcome prove that feasibility
           has not been demonstrated by MSHA.
                       (1) The vast majority of mine visits           reported in the preamble (4 Martin Marietta sites,
           the Rogers Group Jefferson, Nalley and Gigson's
           Georgetown Mine, Stone Creek Brick, Wisconsin
           Industrial Sand, and Governor Talc) do not report
           positive results nor support the proposition that
           compliance is feasible.  The silence speaks loudly
           to the noncompliance status of these mines.
                       The Carmeuse Federal Register
           discussion represents an excellent attempt to test
           bio-diesel fuel.  It fails to report, however,
           that the 50 percent bio-diesel presented
           insurmountable equipment problems and that the
           cost of bio-diesel has increased significantly,
           adversely impacting the feasibility potential of
           the 20 percent mixture.  Additional information
           will be provide by Carmeuse on this subject.
                       The discovery of filters which create
           N02 hazards to personnel is alarming and
           demonstrates the risks of rushing to regulate and
           mandating the use of unproven technology.
           Stillwater will address their comprehensive
           efforts which prove that even the 400 is not
           feasible at their mine.
                       At Federal Register Pages 48693-4,
           MSHA sets forth its interpretation of           "feasibility" under the Mine Act and the case law.
                       First, MSHA only seems to pay lip
           service to the express language of the statute and
           loses its feasibility focus by reference to the
           legislative history and aspects of the case law.
           The express words of the Mine Act are clear in
           establishing the factors to be used in determining
           feasibility:  Research, demonstrations and
           experiments; latest available scientific data;
           experience gained under this or other health and
           safety laws.
                       Of course, the opinion of the Supreme
           Court in the cotton dust case is the most
           important of the cases cited by MSHA, and it
           defines feasible as, quote, "capable of being
           done, executed, or effected."  By focussing on
           everything except the Supreme Court's decision and
           ignoring the express words of its own statute,
           MSHA reaches an erroneous feasibility decision.
                       MSHA again ignores that no other
           health and safety law or agency adopts or has
           proposed to adopt a DPM standard.  Instead, OSHA
           and other agencies rely on the regulation of
           diesel exhaust gas similar to those already in
           effect in the MSHA standard.  Moreover, MSHA has           not analyzed its own experience in regulating
           diesel gases to determine if they provide the
           protection it seeks.  These factors alone
           demonstrate that MSHA has violated its statute in
           favor of a prejudged result of a conflict of
           interest that led to the original rule on the last
           day of the last administration.
                       We commend MSHA, however, for its
           acknowledgements that prior conclusions regarding
           feasibility were incorrect.  MSHA agrees that it
           may not be feasible to change engines on some
           diesel-powered equipment (Federal Register at
           48696).  This acknowledgement, however, is not
           factored into MSHA's determination of feasibility
           and is instead ignored in favor of statements
           encouraging fleet replacement without regard to
           the feasibility of said suggestions.
                       Similarly, we commend MSHA for
           acknowledging that ventilation system upgrades may
           not be the most cost effective DPM control for
           many mines, and for others ventilation upgrades
           may be entirely impractical.  We also commend MSHA
           for inspecting each mine subject to the rule over
           the last year and collecting baseline information.
           However, rather than quantify or identify which of           the 175 mines are subject to the rule are part of
           the many for which ventilation is not cost
           effective or those for which it is entirely
           impractical, MSHA instead concludes without data
           or support that for the majority of mines
           ventilation improvements would be an attractive
           DPM control option (Federal Register at 48700).
           Moreover, MSHA continues to rely on the estimator
           to conclude feasibility regardless of its now
           acknowledged incorrect assumptions on equipment
           appropriateness and performance for which it lacks
           actual knowledge or data.
                       Most importantly, at Federal Register
           Page 48705, MSHA admits that the 160 limit is not
           feasible.  Quote, "It would be infeasible for the
           metal and nonmetal mining industry to reach a
           lower interim limit."  This acknowledgement and
           the evidence in the record provide MSHA with a
           mandate to delete the 160 microgram limit now
           under the provisions of the Mine Act sanctioning
           only feasible standards.  MSHA cannot mandate a
           standard to take effect in less than three years
           based on pure speculation that feasible controls
           will appear miraculously.
                       The MARG Diesel Coalition appreciates           the opportunity to comment on MSHA's proposed DPM
           rule and hopes that MSHA will act in accordance
           with its recommendations.  Thank you.
                       MS. SMITH:  Thank you, Mr. Graham.
                       Do any of the panel members have any
           questions they would like to place to Mr. Graham?
                       Audience?
                       Thank you, Mr. Graham.  We appreciate
           your comments.
                       Our next speaker is Mike Crum.
                       MR. ANDERSON:  I'm just moral support
           for Mike.  My name Rick Anderson.
                       MS. SMITH:  If you could say and spell
           your name for the record and your affiliation,
           please.
                       MR. CRUM:  My name is Mike Crum,
           C-R-U-M.  I'm with Stillwater Mining Company.
                       Stillwater Mining Company appreciates
           MSHA's solicitation of comments on the anticipated
           rulemaking.  It welcomes the opportunity to share
           thoughts and comments as the agency formulates its
           proposed rule for notice and comment.  Stillwater
           is a member of MNA and the MARG Diesel Coalition
           and the NIOSH diesel partnership.  We endorse
           comments of NMA and MARG.                       As MSHA is aware, Stillwater mining
           company has been a leader in the cooperative
           good-faith effort between labor, industry and the
           agency.  Stillwater also welcomes further
           opportunities to join in such a partnership to
           advance or clarify the impending rule.
                       Comments on the 160 microgram limit.
           MSHA's has set a proposed final limit of 160
           micrograms for DPM, which at present time is not
           feasible.  Technology has not advanced to provide
           feasible filtration for all mining equipment.
           Equipment size constraints, operational
           variations, and filtration technologies hinder
           fitting all mining equipment with a DPF.  In
           Stillwater's case, active filtration devices for
           our smaller mining equipment are not feasible
           given the cost of excavation for parking areas or
           oven locations, as well as installing electrical
           and air installations close to our mining areas,
           which in some cases is in excess of 5,000 feet for
           major installations.
                       Another fundamental concern is the
           creation of NO2 with even a lightly catalyzed
           filter.  As the mine has developed further, we add
           footage that must be ventilated, and in so doing           ventilation rates decrease with each foot of
           advancement.  Now, given this scenario, two trucks
           and one LHD have proven to overpower the
           ventilation and an increase in NO2 occurs,
           consequently stopping any material haulage, which
           in our case occurred during the NIOSH case study
           just last week.  This exact scenario occurred
           during the Phase II case study, and given that
           information SMC still has not achieved compliance
           with 400 microgram per cubic meter concentration
           limit, even with the major points of control as
           listed in the Compliance Guide as well as in
           multi-million dollar ventilation upgrade, which
           occurred two years ago and did take into
           consideration additional ventilation for DPM
           control.
                       Comment on utilizing portions or all
           of CFR 75.1914(g).  The metal/nonmetal mining
           community already has a CO rule in effect as part
           of 30 CFR 57.5001.  It is not necessary to
           intertwine part 75 requirements with part 57
           compliance.  Weekly emissions testing is
           impractical as well as unfeasible for an operation
           that has over 300 pieces of mining equipment in
           operation.  SMC would hardly gain compliance with           this requirement.
                       Comment on active regeneration
           systems.  Active regeneration systems absolutely
           increased system operating cost.  It is unfeasible
           for SMC to move strictly to the active system
           because regeneration stations would have to be
           added to our 48 miles of footwall laterals and
           ramp systems.  This system utilization would
           require significant excavations in order to park
           equipment for air and electrical connections in
           the mine, burdening the operation with enormous
           cost and yielding minimal return on investment.
           We would need at least 25 large parking areas,
           which is cost prohibitive.
                       In an other scenario, should we
           require our operators to exchange filters, our
           cost would be substantially lower.  However, cost
           per installation would be, given today's prices,
           $8,300 per filter, and a spare filter for every
           other machine at a cost of $6,000 per filter.  At
           the present time our heavy emitters total 176
           units.  Total cost of this system would be
           approximately $2,114,000, including $1,000 per
           installation.  Our experience indicates the
           lifespan of the filter is roughly 1.5 years, which           indicates our cost at a three-year time period
           would equal $3.9 million.
                       The variable that is unknown to us at
           the present time is the effect that continual
           regeneration has on the filter life, which could
           shorten the filter life and increase spending on
           replacement filters.  Should the regeneration
           process diminish the lifespan of the filter, the
           annual operating cost would significantly
           increase.  And then another variable is the
           unknown products that are emitted during filter
           regeneration.  This scenario would also require
           additional manpower to simply manage this process.
                       Compliance with both the 400 and 160
           standards is not feasible for Stillwater.
           Stillwater has been at the forefront of testing
           primary control devices recommended by MSHA and
           has invested greater resources than any other
           mining company in experimenting with controls; yet
           we are convinced that we cannot feasibly comply
           with the 400 standard at this time and that we
           will never be capable of complying with the 160
           standard.  Our efforts have demonstrated that
           compliance with the 400 standard will require a
           massive ongoing research project, since a number           of our experiments have resulted in increased N02
           hazards and other attempts have failed on
           installation.
                       For other equipment, its size and
           shape does not permit installation of DPF systems.
           The most promising DPFs for our equipment seems to
           be for the heavy-duty cycle equipment, and yet we
           cannot install the active regeneration systems
           that some of these require.  As a result we concur
           with the MARG recommendations that MSHA issue
           justified extensions of time for compliance with
           the 400 standard before enforcement actions are
           taken and delete the 2006 160 microgram standard
           in this rulemaking.
                       Comment on the appropriateness of the
           1.3 conversion factor.  We endorse the MARG
           position.
                       Comment on sampling equipment.  One of
           the major drawbacks with the SKC impactors is
           timeliness of procurement.  Although operators are
           entitled the right to perform side-by-side
           sampling, we may not have the opportunity with the
           lead time required obtaining sampling media.  We
           do not know when MSHA will sample for DPM, and
           unlike sample media utilized for other           contaminants, the DPM impactors do indicate a
           shelf life.
                       We also endorse the MARG comments that
           the system is too new with too many recent
           adjustments to form the basis of a reliable and
           accurate enforcement system.
                       Comments on extension provisions.
           Stillwater Mining Company believes that the
           extension period will be absolutely necessary.
           Should an operator require the additional time to
           comply with the interim limit, a development
           request for extension, that would be a living
           document that should be utilized for any extension
           application of the limit.  Given the document that
           SMC has developed, this is in fact a living
           document that would be updated for any
           technological changes, operational changes, or
           research projects completed or pending.  The
           requirement of the compliance plan is not needed
           and would only serve as a basis for additional
           unneeded violations.
                       Operators should be allowed the
           application for the extension prior to enforcement
           activity.  Operators should not have to be
           subjected to enforcement actions in their efforts           to proactively work on compliance in what has been
           a positive partnership effort to date.  Technology
           does not exist to meet the 160 microgram limit and
           it is not on the horizon.
                       The use of the passive filters with
           any platinum washcoat produces significant NO2
           concentrations, causing a secondary health issue
           by attempting to control a contaminant that has
           not yet been proven to cause significant health
           risk to miners.  This proven result demonstrates
           the risk in rushing compliance efforts without
           adequate testing and significantly reduces the
           options for operators.
                       Comments on the 25 percent reduction
           factor.  MSHA should not rely on a percentage to
           determine control effectiveness.  Instead, MSHA
           should examine the individual control in light of
           the mine conditions and the result achieved by the
           control.
                       Comments on including a new
           respiratory protection standard.  Operators are
           already governed by a respiratory protection
           standard in 57.5005.  This requirement is already
           unilaterally applied and effective.  A new
           standard would only compound the paperwork and           intensity of a compliance plan.  Therefore, SMC
           opposes any additional respirator requirements
           within the DPM rulemaking process.
                       Comments on medical examinations and
           transfer of employees.  With SMC's current
           respiratory protection program an avenue already
           exists to provide medical clearance if necessary
           for a miner to safely wear respiratory protection.
           This closely relates to the OSHA respiratory
           protection program requirements as outlined in
           ANSI Z88.2 with the health questionnaire.  In an
           underground operation, transfer of employees to
           areas where no diesel exhaust can be identified
           would be extremely difficult at the very least.
                       We oppose attempts to regulate these
           efforts since they are neither the subject of this
           rulemaking and would only serve to form the basis
           of enforcement actions for technical violations.
                       Comments on information collection.
           The information requirements that are already in
           place are adequate for MSHA's function and even
           excessive.  The DPM sampling and analysis, the
           planned provisions, the posting requirements, and
           all of the required records constitute more
           information collection than MSHA already requires           for existing standards governing other diesel
           exhaust components.  These records also provide no
           practical use since there is no scientific
           evidence correlating health risks to MSHA's
           proposed 160 microgram concentration limit.  The
           burden could be effectively minimized by relying
           on the current diesel exhaust gaseous emissions
           testing, utilizing the 400 microgram limit that is
           in place as the final limit, and deleting the
           160 microgram limit.
                       MSHA's 31-Mine Study.  The discussion
           of MSHA's 31-Mine Study is misleading as presented
           in the Federal Register.  The report was based on
           MSHA's estimator, which has been proven to be
           meaningless for a determination of feasibility.
           The estimator assumes perfect ventilation rates
           and turbulent mixing of air.  This is not always
           the case in true production situations.  During
           the case study, Phase II of the isolated zone
           research, equipment operating in excess of
           80,000 cfm fresh air could not sustain operation
           utilizing passive filters due to increased NO2
           production with new filters.  The filters
           (de-greened) have been proven to be successful at
           filtering DPM in the Phase I study; however, new           filters will have to be changed eventually.  This
           change-out in filters will produce NO2
           concentrations that exceed both the TLV and
           ceiling limits during loading operations,
           substantially hindering mine operations.  This
           effect is not considered in the feasibility of
           filters.
                       MSHA has also regarded the analytical
           method to be accurate for the measurement of TC,
           total carbon.  This conclusion has been rejected
           by the scientific community and has been
           reconsidered by MSHA, utilizing a surrogate
           measurement of EC in place of TC.  The preamble,
           however, is still characterizing TC as a suitable
           surrogate for the measurement of DPM.
                       MSHA's compliance assistance information.
           In the Federal Register MSHA states that the same
           method for collection analysis of samples was used
           during the study on compliance assistance work that
           will be used during enforcement.  During the 31-Mine
           Study MSHA averaged two punches and also analyzed the
           dynamic blanks.  The samples were then corrected for
           the dynamic blank.  MSHA has not indicated whether or
           not this identical process will be utilized for
           enforcement sampling.  If the same process is not to           be utilized during enforcement, MSHA should provide
           single punch data analysis without averaging or blank
           correction to the mining community for evaluation.  If
           the single punch is to be used without blank
           correction or averaging, this data should be used to
           determine economic feasibility and compliance
           determinations within the preamble documentation.
                       Thirty percent noncompliance rate.  MSHA
           indicates that 30 percent of the mines had TC results
           above 400 micrograms, adjusted to EC.  There is
           obviously a far greater number out of compliance with
           the proposed 400 microgram limit, and we suspect that
           almost all mines are out of compliance with the
           160 microgram standard.  Clarification of analysis is
           necessary in the preamble for the determination of
           technological and economic feasibility to be
           meaningful.
                       MR. ANDERSON:  If I may, I would like
           to make a couple comments.  This represents more
           or less our abstract for the compliance action
           plan which is requested.  What it suggests is that
           we are able to hit the compliance numbers of 400
           and 160.  In a year and a half of study that I
           have done this almost has to have a different name
           to it, because I cannot project in the future how           we can reach this standard.
                       During our isolated zone study of
           May 14th to the 30th, I guess it was, a two-week
           study, the isolated zone study suggested that we
           might be able to make it, but it was strictly a
           laboratory study.  When we took this as a case
           study into an operating environment what we found
           was there was almost an impossibility to reach
           these numbers.  We are using equipment that is
           almost experimental.  We are using the best that
           is available.  I spent over $100,000 on test
           equipment, and it is continually back at the
           manufacturer for repairs because we cannot get
           repeatable readings.  We have no way of getting
           DPM readings real-time, so using a surrogate we
           have to guess that we are going to meet the MSHA
           numbers.  As was suggested by my colleague, to
           reach the DPM limits with our passive system we
           are driving the emissions of NO2 above the limit
           where we can leave the miners in there.  That is
           to suggest we have to use a non-platinum based
           soot trap, which can be proven through our studies
           to be uneconomic, and, frankly, I don't think it's
           even remotely practical to do that.
                       Further, on the equipment that we use,           the 5040 method will take much too long to
           understand and nothing is repeatable.  I can show
           readings taken even a half-hour apart, and one
           will show a very low reading of gaseous emissions
           and the other ones will be so far out of
           compliance that we cannot put the equipment back
           into service.  There has to be more study done on
           the equipment we are able to use to be able to
           assure ourselves that we're going to reach your
           MSHA standard.
                       I have tested possibly -- well, I've
           got 22,000 hours of study on 20 pieces of
           equipment using the Inglehardt and DCL soot traps.
           These are mounted on the Deutz six-cylinder,
           four-cylinder, and CAT 3306.  Where we originally
           thought after a year of study that the high-duty
           cycle equipment would be safe with these emission
           soot traps, we now have determined that we can't
           even be assured of that.  I have some soot traps
           that have been in service for 5,500 hours and are
           working very well.  They are regenerating as far
           as we can tell.  I've just in the last month
           noticed that soot traps with only 170 hours on
           them are failing.  We have no study that suggests
           that these traps after they've been de-greened           when they go into regeneration do not emit DPM or
           emissions.  I've tried to find real-time DPM
           methodology.  There's a company in California,
           RTM, that was supposed to be at our study, but
           unfortunately their equipment was offshore so we
           weren't able to get it.
                       As I say, again, there is no way that
           we can tell we are within your standard at this
           time as real-time, and to use a surrogate I think
           is wrong, because as we have seen it isn't -- you
           can't equate one gas to a DPM or one gas to
           another gas.  And I can talk for days on this
           because I've got lots of stuff, but I won't.
           Thank you very much.
                       MS. SMITH:  Mr. Crum, thank you.
                       Are there any questions?
                       MR. SASEEN:  Yeah, I have some
           questions.
                       Mike, on the Phase II case study, can
           you identify which filter gave you the NO2 problem
           for this study?
                       MR. CRUM:  I can't right now.  The two
           filters we had in place, one was an Inglehardt and
           one was a DCL.
                       MR. SASEEN:  And they were both           platinum catalyzed?
                       MR. CRUM:  Right, and they were the...
                       MR. ANDERSON:  A Mine-X, and the
           Inglehardt was a 328PTX.  Pardon me.
                       MR. CRUM:  DPX9308.
                       MR. ANDERSON:  Yeah, DPX9308.
                       MR. SASEEN:  And that was the
           Inglehardt.
                       MR. ANDERSON:  And two of these
           devices were installed for the case study, so they
           had very little de-greening, which would -- that
           is the best case scenario for us because that is
           going to be happening at all times.  We will be in
           some process of changing over.
                       MR. SASEEN:  So it was an Inglehardt
           and DCL that was used in the case study where you
           got the high N02 reading.
                       MR. ANDERSON:  Right.  We were
           actually driven out after two hours on one day.
                       MR. CRUM:  We had a myriad of issues.
           We didn't see a day of testing during the case
           study that we didn't see N02 below 3 parts per
           million.  The case that I mentioned here, we had
           one OHDN, one truck, in the main ventilation
           stream at 80 thousand plus CFM, and we were           approximately 40 feet downstream in the
           ventilation with the TMX reading 3.8 parts per
           million.  We hit two different occasions during
           the case study where we had to end the test and
           remove the miners from the mine because we had
           exceeded the 5 part per million in ceiling limit.
           It's going to be a very big struggle for us
           utilizing the filtration technology that's
           currently available because, as Rick said, we will
           continually be replacing filters.  When you put a
           new filter in at a mine, where do you put it?  If
           we see N02 emissions elevated at 80,000 CFM, I
           can't necessarily rely on that filter in a stope
           ahead of me.  I'll have to chase our miners out.
                       MR. SASEEN:  Also, Rick, you made
           mention of a filter failing at 170 hours, that
           you're beginning to see that.  Is that something
           that you're going to elaborate on?  I mean what
           caused the failure at 170 hours?
                       MR. ANDERSON:  When it looks like it
           has gone into over-regeneration -- it's gone wild
           CAT on us -- over temperature in the core -- it is
           breaking down the core of the machine -- when that
           happens then the soot is going to get by the core
           of the filter.  This is not an isolated case.  We           have seen now in the last month three of the
           filters that are starting to fail prematurely, and
           because this equipment is so far afield it is
           impossible for us to get to it in other than our
           250-hour maintenance cycle.  We haven't noticed up
           until a month ago that this was happening to us,
           and I don't have an answer for why it is.  We have
           had some failures that are caused by a turbo that
           has let oil into the system and physical failures
           from vibration, but this is the first time we've
           noticed that we haven't been able to quantify the
           reason.
                       MR. SASEEN:  Is it the same filter
           manufacturer that shows those three premature
           failures?
                       MR. ANDERSON:  No.  Both Inglehardt
           and DCL have seen failures.
                       MR. POMROY:  Bill Pomroy from MSHA.
           On those filters that fail prematurely, were you
           monitoring back-pressure on those?
                       MR. ANDERSON:  We monitored
           back-pressure.
                       MR. POMROY:  Did you see an
           unacceptable rise in back-pressure that would have
           indicated that the filter just wasn't           regenerating?
                       MR. ANDERSON:  The back-pressure was
           cycled.  When the back-pressure comes up then it
           goes into regeneration, so I can't say there was
           any difference.  In 175 hours you wouldn't see a
           regeneration cycle anyway.
                       What is very difficult is that any of
           the technologies that are out there are physically
           too large for the equipment they run.  One of the
           best units that we saw in the isolated zone was
           called a Clean Air, but it takes a fuel additive,
           and it too is so large that it will only fit on
           the equipment.  We don't really have a problem
           because the cycle is appropriate for the soot
           trap, and I can say it is appropriate for the soot
           trap on a high-duty cycle machine, but that's not
           necessarily correct, because we are seeing
           failures in our large fleet as well that we
           haven't been able to determine the cause of this
           yet.
                       But you have to understand, too, as
           far as the ambient checks that are being made is
           it depends on the direction the operator is
           traveling.  If he's traveling the same speed as
           your air, he could be sitting in the plume of his           own DPM, his own smoke.  So the administrative
           control is extremely onerous, trying to determine
           if this operator is going to be traveling in his
           own mess.
                       MS. SMITH:  Other questions from MSHA?
                       MR. SASEEN:  Yeah.
                       Rick, you mentioned about some
           instrumentation not agreeing with each other.
           Could you elaborate on what you were trying to
           measure, what the instrumentation was?
                       MR. ANDERSON:  The equipment is called
           ECOM 400.  The problems that we have are the cells
           that measure the gases, and this is strictly gas,
           not a PPM, because we don't have real-time for
           that.  They don't give us repetitive readings.  I
           have six units at Stillwater.  We endeavor to use
           the same unit for each equipment to try to
           mitigate the difference.  We calibrate on a
           regular basis but, as I said earlier, even a
           half-hour later you'll get a different reading.
                       We don't take spot readings.  We graph
           our analysis of the engine through a three-mode
           test, and that's an idle, high idle, and a torque
           stall.  The manufacturer, he would like to see all
           tests done at a torque stall with a hydraulic           stall as well.  What we have found is our
           equipment at the mine is more often at a high
           idle.  He would be traveling down a hill with the
           throttle down so there's no torque on the engine,
           so that makes a big difference in the emissions
           that is put out by that machine.  We have a bit of
           an issue with the manufacturer and MSHA for that
           reason.
                       Following this I have two days at the
           Deutz dyno.  We are going to put our equipment on
           the dyno with two of the engines from our mine and
           make governor changes to determine what is best
           for our mine as far as governor setups, because we
           find that the vent rates or the governor setup for
           our equipment is wrong for our mine.
                       MR. SASEEN:  Thanks.
                       MR. PETRIE:  Mike, I believe you had
           mentioned that your company currently voluntarily
           evaluates miners to determine if they can wear
           respirators.  What do you do if you determine that
           they cannot wear a respirator?
                       MR. CRUM:  Currently we are following
           the OSHA standard with the health questionnaire.
           We also employ the use of a pulmonary function
           test prior to fit testing a miner.  We do that           voluntarily because it is not required by any of
           the regulations.  Obviously I'm not an MD.  I set
           our limits quite a bit lower than even the
           requirements of the NIOSH respiratory oversight.
           I set my flags a little bit higher than what would
           be required so that I don't make that judgment
           call.  If I see a pulmonary function test that is
           questionable based on my limits, I immediately
           send that to the medical oversight physician.  I
           do not fit test the employee and I do not work in
           a respirator required area.
                       MR. PETRIE:  Okay.  Thank you.
                       MR. CRUM:  You bet.
                       MR. ANDERSON:  I guess further to my
           last comment there, I was talking about this as
           being in my compliance action plan for Stillwater.
           I probably take exception to the term "compliance
           action plan" because that suggests that I agree
           that we can meet compliance, and it should be
           renamed to suggest that we are on the cutting edge
           of technology and it's a live document that we'll
           continue.
                       MR. CRUM:  I would also like to add
           one more item in regards to the active
           regeneration systems.  If we get into a situation           where we require extensive excavation in order to
           park equipment, the other foreseeable challenge
           that we would face would be ground control in
           those excavations.  The larger openings that we
           create within our rock formations, our ore body,
           the heavier chance we receive for ground control
           issues to arise, whether that is enforcement
           activity or loss of equipment.
                       MS. SMITH:  Jon.
                       MR. KOGUT:  Mr. Anderson, I think you
           asked about whether the method used for
           noncompliance determinations averaging the two
           punches and correcting for blank -- whether that
           would be the same method that was used for the 31
           Mine Study, it would be continued for the
           noncompliance samples.  Did you ask that?
                       MR. CRUM:  That was a question I
           had -- and Mike Crum, just for clarification.
           That was a question I had in reading a preamble,
           that that was going to be consistent through --
                       MR. KOGUT:  Okay.  Well, maybe I can
           defer this to the head of our dust lab, but my
           understanding is that that same method will
           continue for noncompliance sampling, and that's
           the assumption that's made in the method that's           used for the error factor that's outlined on the
           website.
                       So, Bob, maybe you could answer that
           and confirm my understanding that that same method
           will continue.
                       MR. HANEY:  Not exactly what was used
           in the 31-Mine Study, but what was used in
           baseline sampling will be used, because the
           31-Mine Study did not use the dynamic blanks on
           the compliance samples.  It was the baseline
           sampling.
                       MR. KOGUT:  Right.  But for samples
           that are used in making a noncompliance
           determination would be the average of two punches
           and then corrected by a blank, by the dynamic
           blank.
                       MR. HANEY:  Yes.
                       MR. SASEEN:  I have just one.  You
           mentioned, Mike, about going back to active
           regeneration ground control and parking relating
           to plug-in systems for regeneration.  What's your
           opinion, or Stillwater's opinion, on changing out
           filters and doing it back at a maintenance shop as
           a feasible control?
                       MR. CRUM:  I'll let Rick answer that.                       MR. ANDERSON:  We actually addressed
           that when we sent however many filters we had to
           have plus the spares.  The fact remains that these
           filters are buried within the body of the machine,
           so it's impossible for maintenance to be able to
           change these out.  It would have to be done --
           it's impossible for the operators to change these
           out.  It would have to be done by maintenance in
           40 miles of footwall lateral and ramp system.  It
           would be an impossibility to get to this equipment
           in a timely manner, so I think that would be quite
           onerous.
                       MR. SASEEN:  Okay.  Thank you.
                       MS. SMITH:  Okay.  Thank you very
           much.
                       MR. CRUM:  Thank you.
                       MS. SMITH:  Our next speaker is Fred
           Fox.
                       MR. FOX:  Good morning.  My name is
           Fred Fox, F-O-X.  I'm the Director of Health
           Safety Environment for Kennecott Minerals, which
           is located here in Salt Lake City, and I welcome
           the panel members back to Salt Lake City.
                       Kennecott Minerals is the majority
           owner and operator of the Greens Creek Mine up           near Juno, Alaska, and with me this morning is
           Mark Good, who is a safety engineer at the Greens
           Creek Mine.
                       I thought what I would do this morning
           is go over this outline and briefly discuss an
           overview of Kennecott Minerals' involvement in the
           DPM rulemaking -- I actually agree on some of the
           MSHA proposals in the proposed rule -- and also
           highlight some concerns that are still remaining,
           discuss the need for further time to determine
           economic and technical feasibility, the need for
           formalized procedures to grant a special extension
           for additional time.
                       We really appreciate the cooperative
           and collaborative effort of MSHA and NIOSH.  And
           on compliance assistance, I would like to discuss
           why that should continue, and also the need to
           delete the 160 final limit because more data, we
           feel, is needed before proposing it.
                       Mark will address more of the
           mine-specific areas, history of his trials of the
           different filters, results from the MSHA testing
           that was done up at Greens Creek, site-specific
           effects of mine and ventilation design -- I don't
           know if Mark has got the diagram here so we can           discuss some more site specific issues -- and
           Greens Creek's existing control plan, which is the
           voluntary control plan that addresses DPM, and I
           would like to say the way forward to compliance.
                       Now, early on, DPM sampling at Greens
           Creek indicated compliance with the 400 micrograms
           and the 160 total carbon limits might not be
           feasible.  On January 29th then Greens Creek along
           with Anglo Gold challenged the rule because of
           this concern, and it was followed by legal
           challenges from NMA and other companies.  For the
           record, Kennecott Minerals Company is a member of
           the National Mining Association.
                       We mentioned the partial settlement
           that was reached on July 5th, 2001 that allowed
           certain provisions of the new rule to go into
           effect and required a sampling study, which has
           been known as the 31-Mine Study, to begin
           August 2001 to determine the appropriateness of
           the compliance limits.  Greens Creek Mine
           continues to install and test the feasibility of
           on-board self-regenerating diesel particulate
           filters, along with active regenerating filters,
           and continues to implement a diesel exhaust
           control plan.  The joint MSHA/industry sampling           program and study, the 31-Mine Study, was
           completed at the end of March 2002.  The study
           showed that the Greens Creek Mine was at the high
           end of noncompliance with interim standard
           compared to the other 30 participating mines.
                       For a one-year period after July 20th,
           2002 and until July 20th, 2003, MSHA stated it
           would not issue citations if operators were
           cooperating in good faith to reduce DPM emissions.
           Since July 20th, 2003, MSHA has not conducted an
           inspection at the Greens Creek Mine.
                       Greens Creek and MSHA also
           participated in an additional mine-specific study
           to assess the performance of catalyzed ceramic
           filters being applied at Greens Creek for reducing
           DPM and to determine practical mine-worthy diesel
           particulate filter technology.  The study protocol
           was developed with input from MSHA and NIOSH and
           originally scheduled for early November 2002 but
           later rescheduled for January 20th, 2003 due to
           sampling equipment and weather-related problems.
                       The results of the DPM study at Greens
           Creek indicated the use of ceramic filters reduced
           personal DPM exposure by 60 to 80 percent and CO
           levels up to 50 percent.  Use of the filters           reduced the average DPM emissions by 96 percent.
           However, because of the cascading ventilation
           system, which Mark will go through later on, at
           Greens Creek and with ambient DPM concentrations
           being measured around 300 micrograms per cubic
           meter elemental carbon in the intake air to some
           of the stopes, being able to achieve the personal
           DPM concentration below the proposed
           308 micrograms per cubic meter elemental carbon
           for every underground miner on every shift may not
           be feasible and is still uncertain.
                       Greens Creek has ordered additional
           ceramic filters to retrofit all large
           horse-powered diesel engines and, as stated
           earlier, is currently researching active
           regenerating filters for medium and small
           horse-powered engines.  The new proposed rule is
           expected to be published sometime in the third
           quarter of 2003 after it has cleared Department of
           Labor Policy Review Board and Office of Management
           and Budget Reviews.  Kennecott Minerals Company
           strongly encourages MSHA to expedite this
           rulemaking process, as it now leaves Greens Creek
           and all other metal and nonmetal mines out on a
           limb without a safety net.  It is very likely           Greens Creek will not be in compliance during
           certain mining cycles, and therefore it's
           imperative that Greens Creek demonstrate to MSHA
           it is doing everything technically and
           economically feasible to comply with the standard,
           allowing MSHA the opportunity to grant an
           extension of time for compliance and not issue
           citations.
                       Kennecott Minerals Company agrees with
           some issues on the sampling and measurement
           technology.  We agree that MSHA has established
           available technology that can accurately and
           reliably measure miners' exposure to DPM in all
           types of underground metal and nonmetal mines.  We
           didn't have much variation at all with our
           sampling and MSHA's sampling using the 5040 method
           measuring for elemental carbon.
                       MSHA's position on technological
           feasibility, as stated in the preamble on
           Page 48671, MSHA has limited in-mine documentation
           on diesel particulate matter control technology
           because sampling results were obtained at a time
           when few mine operators had implemented controls
           to reduce DPM concentrations.  As a result, MSHA's
           position on feasibilities does not reflect           consideration of current complications with
           respect to implementation of controls, such as
           retrofitting and regeneration of filters.
           Kennecott Minerals Company agrees with MSHA's
           acknowledgement that these issues, meaning
           retrofitting and regenerating of the filters, may
           influence the extent to which controls are
           feasible.
                       Additional time is needed to determine
           feasibility.  Kennecott Minerals Company agrees
           that enclosing a miner in a well-maintained cab is
           an effective engineering control, and Greens Creek
           will implement these types of controls wherever
           practical.  However, Greens Creek has limited
           opportunities to enhance its ventilation, and even
           if it did, required ventilation to reduce DPM
           concentrations without the use of filters would
           not be feasible.  We've commented on this numerous
           times in earlier rulemaking.
                       Greens Creek agrees with MSHA that
           administrative controls can be effective in
           reducing miners' exposure to DPM, such as reducing
           diesel engine idling time, reducing lugging of the
           engines, designating certain areas off limits for
           operating certain diesel equipment, and           establishing one-way travel whenever these
           controls are practical.
                       Kennecott Minerals Company
           acknowledges, as does MSHA, that some mine
           operators, such as Greens Creek, may face
           feasibility challenges implementing current DPM
           control methods.  That is why Greens Creek
           solicited MSHA's compliance assistance in early
           2002 to conduct a study for the identification of
           site-specific practical mine-worthy filter
           technology.  While the study indicated significant
           reductions both in personal exposures and engine
           emissions, there is no evidence that the mine can
           continuously or consistently comply with the
           interim limit for every underground miner on every
           shift.  Practical mine-worthy filter technology
           has not been completely defined at Greens Creek,
           and additional time is required to do so.
                       I'd like to talk about a formal
           procedure needed for granting these special
           extensions.  We feel special extensions are
           necessary.  MSHA proposes to adapt a special
           extension provision of existing Section 57.5060(c)
           and remove the limit on a number of extensions
           that may be granted to each mine, which was           described earlier in the slide show.  Kennecott
           agrees with this provision, including allowing
           approval of the extension by the district manager
           rather than the secretary.  However, Kennecott
           also believes there should be a formal process in
           place to appeal a district decision on an
           extension request to the secretary if necessary.
                       Kennecott does not believe that
           granting a special extension would duplicate the
           regulatory objectives addressed under the new
           57.5060(d) and the intended hierarchy of controls
           for DPM rule.  By granting a special extension
           under the proposed rule that is limited to one
           year, subject to yearly renewals as described
           earlier, MSHA would be allowing each operator to
           define site-specific controls, including
           engineering, administrative and respiratory
           controls allowed for by the proposed rule.  Such
           controls would be evaluated yearly to warrant an
           additional extension of time.  Kennecott believes
           the proposed special extension provision and the
           ability granted to use administrative controls and
           respirators is a good start and will most likely
           be required to enable compliance at Greens Creek
           with the interim limit.  However, Kennecott           Minerals Company also believes there should be
           provisions to require that MSHA act on a special
           request and do so within specified time frames.
                       Some concerns remain on other issues.
           One would be MSHA's discretion to issue citations.
           If MSHA finds that a miner is overexposed to the
           DPM standard, and an inspector determines that
           some form of engineering and administrative
           controls are feasible, and the operator didn't
           install or maintain such controls, MSHA can issue
           a citation to the mine operator.  This is a
           concern to Kennecott Minerals Company because of
           the current guidance that was cited in the
           preamble to the Federal Mine Safety and Health
           Review Commission that engineering controls may be
           feasible even though they fail to reduce exposures
           to PELs as long as there's a significant reduction
           in exposure, and it's cited as capable of reducing
           miners' exposure by only 25 percent.
           Notwithstanding, an operator could be subject to
           citations after implementing engineering and
           controls deemed feasible by an MSHA inspector.
           The very reason for MSHA to grant special
           extension allowing the operator to avoid citations
           may be moot, leaving the operator totally at           MSHA's mercy unless the provisions are changed to
           be transparent and MSHA is required to act on a
           special extension request agreeing on what
           controls are or are not feasible and do so within
           a specified time frame.  Kennecott believes it's
           very important for MSHA to place in the new rule a
           definition of "practical mine-worthy filter
           technology."  We believe it could mean those
           diesel particulate filters that have been proven
           in the mine environment to achieve the PELs for
           DPM.  No such definition currently exists.
                       And technological feasibility,
           Kennecott disagrees with MSHA's conclusion that a
           personal exposure level of 308 micrograms per
           cubic meter of carbon is technologically feasible
           for the metal and nonmetal mining industry,
           including the Greens Creek Mine, and that control
           mechanism exist that are capable of reducing DPM
           exposure to this level in all types of underground
           mines and nonmetal mines.
                       MSHA acknowledges that it is
           continuing to consult with NIOSH, industry and
           labor on availability of practical mine-worthy
           filter technology.  Complications with obtaining
           adequate ventilation, especially at the face of a           stope located in a dead-end drift, like many
           situations at Greens Creek, would most likely
           prohibit meeting the PEL of 308 micrograms per
           cubic meter of elemental carbon.  Many elemental
           carbon samples taken at Greens Creek were very
           close to the 308 micrograms per cubic meter
           standard -- for example, one was 281 and another
           292 -- demonstrating that being able to achieve
           personal DPM concentrations below the 308
           micrograms per cubic meter for every underground
           miner on every shift in all types of underground
           mines may not be feasible.
                       On compliance assistance, we feel
           compliance assistance should continue.  Kennecott
           Minerals Company must for the record state that it
           retrofitted its first diesel engine with a
           catalyzed ceramic filter on the newest truck
           available on March 3rd, 2000, and installed
           additional filters on different large horsepower
           diesel engines during the year 2000, well before
           the 31 Mine Study took place.  In addition, Greens
           Creek believes it was the first underground metal
           mine to solicit compliance assistance from MSHA
           and NIOSH.  That's contrary to what was perceived
           in the preamble.                       On commercially available DPM filters,
           MSHA states in the preamble on Page 48698 that it
           has found that suitable diesel particulate filters
           for engines for horsepowers used in underground
           metal and nonmetal mining equipment are
           commercially available.  Kennecott disagrees that
           there exists suitable diesel particulate filters,
           especially for the two-cycle engines of midrange
           horsepower used at Greens Creek, unless you can
           tell us differently.
                       Also, the results of tests at Greens
           Creek show that filter rotation was an issue with
           a particular type of filter mentioned earlier, the
           Inglehardt, due to a manufacturing problem.  This
           issue was discussed with a filter manufacturer and
           vendor without obtaining closure on the issue,
           thus questioning the mine-worthiness of this
           particular filter.
                       Finally, we do believe that the final
           limit should be deleted, and at this juncture we
           question the ability for all types of underground
           metal and nonmetal mines to meet the revised
           interim exposure limit of 308, let alone looking
           at a final limit of 160 micrograms per cubic
           meter.  Therefore, we would like MSHA to delete           the final limit, and if MSHA doesn't delete the
           final limit we agree that there should be some
           additional time allowing all types of underground
           metal and nonmetal mines to demonstrate
           feasibility for compliance with the interim limit
           well before addressing the final limit.  We openly
           request MSHA's compliance assistance in meeting a
           final DPM limit, as it did in its continuing
           efforts to meet the interim limit.
                       And with that I'd like to turn it over
           to Mark.
                       MR. GOOD:  My name is Mark Good.  I'm
           a safety engineer and Greens Creek Mine.  Just to
           sort of set the stage for our efforts, I'm going
           to be speaking more to the technical feasibility
           side of things, what we've experienced at the
           mine, the work that we've done in conjunction with
           MSHA, some of the technical issues associated with
           the mine ventilation aspects of our mine, and a
           number of other topics here.
                       Just to get going on it, we started
           out testing ceramic filters three and a half years
           ago in March of 2000.  That was the first ceramic
           filter that we put in place.  At that time there
           weren't a lot of ceramic filters out there.  We           chose Inglehardt as being the sort of leader of
           the day as it were.  They recommended a
           20-inch-by-15-inch unit to go onto our large haul
           trucks.  We mounted that on a Toro 40D haul truck,
           and within 500 hours it failed.  The back-pressure
           shot up over 70 inches of water gauge, and the
           spec on the engine was at 41 inches.
                       So in May of that year we pulled the
           20-inch unit off and we exchanged it for a couple
           of smaller 15-by-15's.  We ran temperature
           profiles on the equipment in July of that year and
           established that the duty cycle was going to be
           sufficient for self-regeneration.  The replacement
           ceramic filters arrived in September of that
           year -- lead times on these things were pretty
           excessive at the time -- and the truck ran for
           about 200 hours before it clogged up with
           back-pressures going up over 80 inches, and again
           we pulled the 15-by-15 out of service and
           approached the manufacturer for suggestions and
           recommendations.
                       In December we made another swing at
           it, so a new 15-by-15 was mounted on the truck
           again, making the proper physical mounting
           modifications.  We wrapped the exhaust system with           a heat-retaining insulation blank and trials began
           anew.  So that was in December of 2000.
                       By April of the following year, April
           of 2001, we successfully operated the filter -- it
           was a passive regeneration system -- for
           1,100 hours, and based on that success we figured
           we hit the magic combination, and we ordered an
           additional five ceramic filters to outfit the
           remainder of the large haul truck fleet.  We ran
           until September of 2001, when we finally got
           receipt of those other filters and we started
           retrofitting them into the equipment.  So at that
           stage we had established successes with the large
           haul truck fleet.
                       Our next approach was to go and start
           retrofitting some of the smaller truck fleets, the
           MT420's, which is a Wagner truck.  We put an
           11-by-14 ceramic filter on in November of 2001 and
           continued testing that particular unit, so we had
           a couple of filters in trial here.
                       In August of 2002 we had the
           opportunity to purchase a brand new truck, and
           rather than going through the R&D aspect of it we
           talked to Wagner and told them that we wanted
           Detroit Engines on board and that we needed to           have Inglehardt soot filters mounted as an OEM
           package, because this is manufactured from filters
           and truck manufacturers and engines all working in
           concert together to provide us with a package that
           would work.  Well, we test drove it down in
           Portland and it failed, so they asked us to ship
           one of our spare filters down to them.  They put
           it on and shipped it up to us, and during
           commissioning up at the mine site there it failed
           the second time.  The filter was not suitable for
           the application, and this is directly from the
           manufacturer, so this is the question of original
           engine equipment manufacturers being able to
           provide turnkey package.  It just doesn't happen.
           You have to be application specific in your
           specifications.
                       In September of that year the very
           first filter failed that we had put in, and that
           was after twenty months or so of operation.  It
           had achieved around 5,600 hours, and it had
           cracked and broken up internally, so we put
           another filter on it and continued on our way.
           Establishing successes, both good and bad I guess,
           in terms of the haul truck fleet, we started
           looking at the loaders, and in October of 2002 we           put our first filter on a mucker machine, slightly
           smaller in horsepower, 300 horsepower, and again
           based on Inglehardt's suggestions of
           specifications they recommended a 12-by-15 filter.
           We put it on, and back-pressure right out of the
           box was 50 inches again versus a 40-inch top end,
           and so that one was unsuitable.  We put a larger
           filter on on our own accord and brought the
           back-pressures back down into something that was
           reasonable.  So again this is evidence of the
           equipment manufacturers and filter manufacturers
           being unable to provide information to operators
           in terms of the suitability of these things.
                       Moving on, by Christmastime, December
           of '02, we failed our second soot trap.  The
           ceramic had rotated inside the shell and was
           loose.  There's a canning process involved in this
           where you have a ceramic substrate that does the
           filtration, and then there's a metal can that goes
           around it, and the ceramic had worked free
           internally and vibrated around and basically
           cracked up the ceramic internally.  And this is
           just prior to when the MSHA people, well, George
           Saseen and Bill Pomroy, arrived on site there to
           do our Compliance Assistance Program, to test the           suitability of these various filters, and during
           that program we also noticed that there were
           several filters that had rotated internally,
           inside the cans, and allowed exhaust gases to
           bypass the whole filter element, sort of rendering
           them less effective.
                       So January '03 we kicked off a
           five-day sampling program with MSHA.  We did a
           three-day -- actually six days.  We did three days
           with the filters and installed sort of a
           quadra-isozone effort, and then we pulled the
           filters off and tried to repeat the sampling in
           headings with the filters removed, and then did a
           comparative before and after thing there.  And
           also during that period of time the MSHA team
           conducted the baseline survey that we're required
           to have by Western District.  We also did that
           during the same program.
                       Following that, May of this year we
           got into repowering equipment.  There was a
           Caterpillar grader that we had which we ended up
           repowering with a Mercedes engine because the
           Caterpillar engines we felt just weren't able to
           meet the emissions.  And in that same month, May
           of this year, we decided to embark on a program of           different suppliers because we weren't that
           thrilled with what Inglehardt was producing for us
           in terms of a filter that was durable.  These
           things were backing up after 2,500 hours on
           average at this point, and we just didn't deem
           that that was adequate.  So we started out on a
           program where we're testing Air PCL filters now, a
           different manufacturer, and we're just in the
           process.  These filters now got somewhat 500 hours
           on them.  They seem to be performing okay at this
           point, but so did the Inglehardt at 500 hours too,
           so it's a little too early to tell at this stage.
           So that was our testing program in terms of our
           experiences with filters, both successes and
           failures on them.
                       I've had some correspondence with the
           DEEP organization -- that's the Canadian
           equivalent that's working on diesel particulate
           studies in Canada -- and the correspondence I had
           with them indicated that Inglehardt was no longer
           going to be in the retrofit business anymore, or
           at least the canning stage of that retrofit
           business, and it looks like they're going to be
           focussing their attempts on OEM installations with
           the engine manufacturers, so they've kind of           removed themselves from the picture in any case.
           But we've still invested over three and a half
           years of Inglehardt studies and probably close to
           $80,000 worth of filtration studies on something
           that ended up to be a dead-end with that.
                       I'm going to speak a little bit about
           the Greens Creek DPM sampling efforts.  We've had
           four outside parties work with Greens Creek in
           terms of measuring diesel particulate.  It started
           out in the summer of 2000.  This is a few months
           after we put our very first filter in place.
           NIOSH was interested in doing an in-mine study to
           get baseline readings for what miners or industry
           was being exposed to, and so that program was
           headed up by Bruce Cantrell.  In NIOSH's five-day
           program they took over 200 samples and analyzed
           those.  At that time we were looking for carbon
           interferences with graphitic ore, because at that
           time the diesel particulate regulations that were
           on the horizon were going to be based on total
           carbon, and we were concerned that total carbon
           was going to become an issue for us because of the
           nature of carbon in our ore.
                       Following that program, July of 2000,
           the next outside sampling agency was during the           31-Mine Study that happened in November of 2001.
           Larry Macken from, I think, the northeast area
           conducted a two-day study with us taking, I think,
           at least a dozen samples.  During that sampling
           program, the second day of the samples, our mine
           ventilation system was interrupted by a fan
           failure, and so the second day of sampling tended
           to bias the numbers way high.  But nonetheless
           during the first day of sampling, which was a
           cross-section of all of our occupations there, we
           had levels of elemental carbonate 432 micrograms,
           1,141, 538 and 328.  All of these are above the
           308 couched in today's terms.  Subsequent to that
           the compliance assistance team, that I alluded to,
           back in January of this year came on, and they did
           a baseline survey effectively sampling similar
           occupations that Mr. Macken had the prior time,
           and in those samples we were under the 308.  We
           were encroaching on it.  We were close.
                       MR. FOX:  Those are the two
           concentrations, the 292 and the other one.
                       MR. GOOD:  As Fred was saying, we had
           one and 292 and one at 281 and one at 289, so
           bumping up against the level there, but we had a
           bit of a dichotomy there between the two sample           sets and two occupations, one being above 308 and
           one being just under 308, so we were left at a
           little bit of a loss where we actually stand.
                       And then the fourth program, as I was
           saying, was the actual filter efficiency testing
           which was conducted over a six-day period.
                       That summarizes the sampling efforts
           that we've undertaken.  This is outside sources.
           These aren't the ones we've conducted internally
           aside, so our samples were actually fairly close
           to the ones that Bill and you guys from MSHA had
           come up with, so consistency on the methodology, I
           guess, on sampling, I don't really have too many
           bones with, although there is separation in swing
           in the actual results.
                       I want to speak a little bit now about
           the site-specific effects of the mine and the
           ventilation design at Greens Creek in meeting
           those diesel particulate limits.  I guess our mine
           is probably not terribly dissimilar to a lot of
           the precious metal mines, but it is fairly
           different from some of the more bulk mining
           styles.  In the 31-Mine Study there was a series
           of trona mines, there was limestone, there was
           some of these bulk mining areas, as well as the           gold mines, and when we looked at the study it was
           the precious metal mines that seemed to be at the
           high end of things, and that's by nature of our
           mining method, I guess.
                       The Greens Creek Mine operates within
           the Admiralty Island National Monument, and as
           such there's fairly severe restrictions imposed on
           disturbances to the surface lands there.  You just
           can't go and push roads out everywhere.
           Opportunities for establishing alternative
           ventilation accesses into the mine are very
           restrictive not only in establishing ventilation
           breakthrough locations but also providing access
           to those openings for maintenance purposes.  The
           permitting process for land disturbances are
           pretty lengthy.  The mine has got two portal
           accesses driven into the mountainside at 920 and
           1,350 feet elevations.  The mine development is
           progressively foundational ore at locations deeper
           and more distal to the portal, so we're getting
           deeper and further into the mine.  As mining
           develops it has followed the ore body deeper, and
           the overlying mountains also --
                       MR. FOX:  Show them that thing.
                       MR. GOOD:  Maybe we can just refer to           this.  You'll be able to see.  You can see a lot
           of lines anyway.  Over here the portal access is
           coming in, and up above is the 1,350, and you can
           sort of see there's a general trend down and away,
           so as we're chasing the ore bodies further over
           here the mountain contour is coming up higher as
           well, so we don't have that opportunity to start
           pulling 4,000-foot holes up to surface, and not
           only is it for breakthrough locations, it's pretty
           rugged terrain up there on the mountaintop.  We
           don't have the opportunity to locate those things
           in places we can get to, plus getting the
           permitting to start carving up the national
           monument is a tough go.
                       MR. FOX:  You might say impossible.
                       MR. GOOD:  Existing developments
           reached a depth of roughly 200 feet below sea
           level at the current phase, and the mountains are
           roughly 3,000 feet above the workings at that
           point.  The terrain, as I mentioned, is very
           rugged, and this can be expected from a mountain
           setting, and additional breakthroughs to the
           surface have been prohibitively costly in terms of
           time of permitting and expense.  As such, the mine
           ventilation plan has evolved into a series or a           cascading ventilation system where you bring the
           miner in and as it courses down the ramp you're
           ventilating out stopes.  It goes in and ventilates
           the stope, comes back, returns to the airway, and
           then on to the next one, and ultimately it all
           comes down to a lower section where it gets
           collect and brought up.  So just by nature of the
           way the mine has evolved this cascading
           ventilation system is basically one of the
           parameters.  We haven't been able to bracket the
           ore body and establish a collection raise up at
           the far end and basically go with a single
           ventilation scheme, so it's a series or a
           cascading ventilation system that we've had to
           adapt.  As such, the mine ventilation plan has
           evolved into this system, and that's consistent
           with the original general plan of operation that
           was accrued by the forest reserves back when the
           mine was first constructed, so we're living within
           the bounds that was agreed to with the forestry
           services in order to put the mine into place.
                       The cascading nature of the mine
           ventilation system has got some important
           consequences regarding maintaining the DPM
           concentrations within proposed limits, and in the           cascading system the ambient levels of contaminant
           slowly increase.  As each time the air ventilates
           a heading, additional contaminants are introduced
           into that same airstream as it then cascades down
           from the following level.  There comes a point
           when the ambient contaminant levels approach close
           enough to the compliance limit that it makes no
           difference that no volume of dilutant air could
           realistically dilute the heading concentrations
           down to compliance level, so once you're at 308
           you could blow a hundred thousand CFM and it's not
           going to make any difference in the heading.
           You're still going to be above compliance levels.
                       In the 31-Mine Study it indicated that
           the DPM concentration levels in gold mines were
           generally higher than those found in the limestone
           and trona operations.  This it felt to be
           partially a function of the mining geometry.  Gold
           mines, physically we have smaller stopes, smaller
           headings, and larger tonnage open room geometry
           utilized by other mining methods.  Exhaust comes
           out at the same entry that it enters, and it has
           no opportunity to convect up into the upper
           reaches of the stope areas where sampling would
           not be able to collect it.                       The typical response to lowering DPM
           concentrations within work headings without
           resorting to exhaust filtration is to improve
           stope ventilation either through maintaining
           existing ventilation ducting or increasing the
           size of either the auxiliary fan and/or the
           ducting face that seems to be a problem.  While
           this would seem like a plausible approach, it
           assumes that such equipment could be mounted in
           the areas of concern.  Large headings can
           accommodate large vent fans and ducting, but
           smaller headings, such as those required at the
           Greens Creek Mine, can only accommodate smaller
           diameter ducting without interfering with the
           operation of equipment.  Ventilation volumes by
           their nature, they're limited by fan and ducting
           diameters, and there's an upper limit to that as
           the realistically feasible ventilation volumes
           that can be delivered to stopes.  A 36-inch fan
           will only push so much air, to where you have to
           start going up to 40-inch, 44, that type of thing.
                       So those kind of speak to the
           technical issues, I guess, regarding ventilation
           as we have it at our specific mine study.  Should
           we go into the particulate plan thing?                       MR. FOX:  Not unless you're
           interested, you know, in some of the methods that
           we currently have to control it.
                       MS. GREEN:  Would you like to submit
           those for the record so we can consider them for
           the final --
                       MR. FOX:  Yeah.  Basically it's a
           tiered approach.  We're going to start looking at
           ventilation first, and then filtration until the
           big ticket items, which is changing of the whole
           mining environment and that type of thing, so
           we'll submit those in writing.
                       MR. GOOD:  As far as the way forward,
           what we're going to be looking for, the way I see
           it, in order to hit these proposed lower levels as
           a final limit, we're going to have to continue on
           with compliance assistance to establish controls
           for all forms of the equipment that we have
           underground.  We have established successes with
           the higher duty cycle for cycle engines in the
           fleet, and we've outfitted those already, but when
           it goes down to the ancillary equipment -- outer
           trucks, scissor lifts, the smaller utilization or
           duty cycle engines that don't generate the heat --
           a number of those things are outfitted with           two-cycle engines, and short of repowering those
           things into a new engine, which is going to run us
           anywhere from $15,000 to $25,000 each, we don't
           see anything on the horizon for technologically
           feasible particulate traps to be fitted on
           two-cycle engines, unless MSHA has got some
           information that we don't.
                       There's also additional time necessary
           to evaluate the durability of these filters.  As I
           say, we've invested about 26,000 hours of
           filtration time at this point, and we've now got
           less than a thousand hours on another one, so
           we're seeing failures at around 2,500 to 3,500
           hours typically, and that's a fair amount of time
           to invest in something that's going to fail.
           You're into the game for eight months or a year,
           maybe a little bit more, before you can establish
           whether or not it's durable, can withstand the
           rigors of the mining environment, and so that
           needs to be taken into consideration, I guess is
           our stance.  When it comes to establishing a
           practical mine-worthy filter technology, there's
           considerable time to invest in trying to come up
           with that determination.
                       MR. FOX:  I think that's why I           mentioned earlier that we haven't really defined
           what that means, or I haven't seen a definition,
           and it would really be strongly recommended that
           MSHA come up with a definition for "mine-worthy
           practical filter technolog," so that we know what
           we're trying to achieve.  You're welcome to any
           questions.
                       MS. SMITH:  Questions?
                       MR. SASEEN:  One.  Mark, you said '03
           May you repowered one of your machines with a
           Mercedes.
                       MR. GOOD:  Yeah.
                       MR. SASEEN:  Which one was that?
                       MR. GOOD:  That was a grader.  It had
           a Caterpillar 306 in it.  We bought it used, and
           before we sent it underground we had it changed
           out, I think, with a Mercedes 904.
                       MR. SASEEN:  I know at the end you
           said $15,000 to $25,000 on retrofitting engines.
           Is that about where that cost would have came in?
           Can you provide us with any information?
                       MR. GOOD:  Yeah, Mercedes, because
           they're knew into the game, they don't want any
           old person to go and throw an engine in.  They
           want their personnel to install their equipment,           so we have to bring in people to do it, and you
           pay a premium for that, so they're at the high
           end.  That $25,000 is for a Mercedes retrofit.  To
           go with a 40 Series retrofit or something like
           that at Detroit you're probably looking at $15,000
           to 18,000 just because we can do it on site
           ourselves.  But those engines are being replaced
           by the Mercedes line anyway.  We're probably going
           to be looking at $20,000 to $25,000 an engine to
           go with that technology.
                       MR. FOX:  George, do you want us to
           supply information on that?
                       MR. SASEEN:  If you would.  Do you
           have a plan for retrofitting the two-cycle
           engines, or do you just have a plan for
           retrofitting engines in general?
                       MR. GOOD:  As they come up, as they
           kind of reach the end of their service life, we're
           replacing engines.  The problem with the utility
           vehicles is that, you know, as a fleet they're
           probably running about 6,000 hours at this point,
           and they're going to last forever.  We're just not
           going to burn out at the rate we're using them, so
           I can see them kind of being a part of the fleet
           for, you know, five years yet.                       MR. SASEEN:  Okay.
                       MS. SMITH:  Other questions?  Thank
           you, gentlemen.
                       MR. FOX:  Thank you.
                       MS. SMITH:  I think we'll take a break
           now for about 15 minutes, and we have one speaker
           after the break, Mr. Leavitt.
                       (Recess, 11:15 to 11:35 a.m.)
                       MS. SMITH:  We're back on the record.
           Our next speaker is Mr. Leavitt.  Would you both
           say and spell your name and affiliation for the
           recorder.
                       MR. LEAVITT:  My name is Wes Leavitt,
           L-E-A-V-I-T-T.  I am going to present to you two
           sets of comments here, one for Nevada Mining
           Association and the second for Newmont Mining
           Corporation.
                       As I mentioned, my name is Wes
           Leavitt.  I am a certified industrial hygienist
           employed by Newmont Mining Corporation, which is a
           member of the Nevada Mining Association.  I
           appreciate the opportunity to comment on the
           proposed rule for diesel particulate matter
           exposure of underground metal and nonmetal miners,
           dated August 14th of '03.  NVMA represents           Nevada's mining industry, and a number of our
           underground mining members are directly affected
           by the DPM rule.  We have monitored the entire DPM
           regulatory process closely, and we have
           participated very actively in the initial proposal
           phase.
                       We're pleased that the agency has
           worked cooperatively with the industry to resolve
           major flaws in the initial rule.  Allowing mine
           operators to apply for an exception of time when
           unable to apply with the standard is an example of
           positive change in the rule.  More often than not
           DPM reductions take a great deal of time money and
           effort to implement.  As long as employees' health
           is being protected using PPE or other acceptable
           controls, the time required for compliance should
           be based on each mining situation.
                       As far as addressing feasibility, as
           indicated by table V-10 in the preamble,
           representing the agency's baseline study and as
           our member companies can and will testify later
           on, many underground metal mines will not be able
           to meet the initial 400 standard, and virtually
           none can meet the final proposed limit of 160.  In
           fact, Federal Register Page 48676 indicates that           30 percent of all mines had one or more compliance
           assistance visit results above 400 total carbon,
           adjusted to the EC equivalent.  This is in spite
           of the fact that mine operators are implementing
           controls such as changing out older engines with
           new cleaner burning ones, installing exhaust
           filters, improving PM programs, and spending
           millions of dollars on ventilation upgrades.
                       Members of our association have been
           working several years doing test work on sampling
           methodology and exploring DPM control methods such
           as exhaust filters.  We're pleased to acknowledge
           the fact that many member companies of the
           association have participated in the filter tests
           conducted in house, in conjunction with NIOSH, and
           also in conjunction with NIOSH and MSHA.  At least
           one company has been using exhaust filters on
           select pieces of equipment for over three years.
           As a result we are convinced that where filters
           can feasibly be sized and fitted to equipment
           significant reductions in DPM levels will result.
           There are still, however, applications where
           filters are not feasible and at least one member
           company is it experiencing back-pressures in
           excess of engine manufacturers' recommendations.           Filter efficiencies are good but are not
           universal, and it's only one dimension.  There's
           still plenty of work to be done before this
           technology can be relied upon.
                       As mentioned earlier, member companies
           have participated since the beginning in testing
           sample methodology.  We agree with the agency's
           decision to rely upon only personal samples for
           compliance determination.  We also agree with the
           decision to use elemental carbon as a surrogate
           instead of total carbon as recommended by the 5040
           method.  Although not totally eliminating the
           interference, using EC as a surrogate for DPM
           reduces the interference significantly.
                       As mentioned in the Federal Register,
           Volume 68, No. 157, Page 48670, the goals of the
           31-Mine Study include an assessment of the
           validity, precision and feasibility of the
           sampling and analytical method.  It is noted
           further that the actual results of the 31-Mine
           Study suggests that the analytical method is
           accurate and appropriate.  There is no scientific
           basis in the results of the 31-Mine Study to
           conclude that a single sample is appropriate for
           enforcement purposes.  The paired sample analysis           of the 31-Mine Study clearly demonstrates the
           uncertainty of using a single sample to
           characterizing average DPM concentrations.
           Although the single sample strategy is consistent
           with other MSHA strategies, this consistency does
           not make it correct.
                       In the proposed 57.5062 MSHA intends
           to cite for a violation of the plan regardless of
           DPM exposure.  Thus if an operator decided to use
           more effective engineering and/or administrative
           controls than were identified in the control plan
           they would be cited.  The DPM control plan must be
           a dynamic document that enables the operator to
           respond quickly to changes in technology or
           operating conditions.  A citation should only be
           issued for documented overexposure, not changes in
           DPM control strategy that are meant to take
           advantage of rapidly evolving technology.
                       My final comments are related to the
           need for a rule to begin with.  The risk
           assessment used to justify the rule is flawed and
           does not meet the requirements set forth by OMB
           data, quality mandates or MSHA's statutory duty to
           issue rules that address significant risks,
           provide significant benefits, are based on the           latest scientific evidence, and are consistent
           with other governmental agency actions.  NIOSH and
           NCI are in the tenth year of a massive study
           commissioned because of suspected health concerns
           that are not supported by existing science.  We
           are urge MSHA to withdraw 160 and make 400 the
           final PEL.
                       That concludes my comment from the
           Nevada Mining Association.  Do you want to do any
           questions on that or just roll into the next
           section?
                       MS. SMITH:  Does any panel members or
           MSHA folks have questions of Mr. Leavitt?  Okay.
                       MR. LEAVITT:  The next comments here
           are specifically to Newmont.  Again, we appreciate
           the opportunity to comment.
                       We own and/or operate four underground
           gold mines in Nevada that are subject to these
           rules and a fifth mine that's in the development
           stage.  During the last several years we have
           engaged in DPM sampling analysis and an ongoing
           engineering analysis of possible methods of
           compliance with the standard.  We have tested
           diesel filters and engine replacement as the
           primary means of attempted compliance, and have           instituted a number of work practice controls
           aimed at reduction of DPM.
                       Our filter tests have had mixed
           results with some filters lasting in excess of
           6,000 operating hours and providing an excess of
           80 percent DPM reduction from the tailpipe, and
           others failing within one month of use.  We have
           determined that many pieces of equipment that we
           use cannot accommodate filter systems or for which
           filters do not make sense from an economic or
           operating feasibility basis.  We also have
           discovered that filter systems for our equipment
           generally are far more costly than he estimated by
           MSHA, with filtering systems at two of the mines
           budgeted at $1.9 million for equipment,
           installation and downtime costs.
                       We have installed some test
           replacement engines and ordered replacements for
           portions of our underground diesel fleet which we
           discovered through testing were the greatest
           contributors to DPM levels.  We'll be monitoring
           the success of these retrofits for feasibility,
           and we're examining the potential to change
           engines in additional equipment.  Again, we've
           discovered that the cost for engine changes           exceeded those estimated by MSHA at $1.9 million
           for the cost of the filters, the engines,
           installation, downtime, et cetera.
                       In addition, we have analyzed the
           potential DPM reductions achieved through
           additional ventilation that is feasible from an
           engineering perspective, and we're in the planning
           stages for the addition of a new major shaft to
           service two of the mines.  This addition will cost
           and an additional $1.1 million to install and an
           additional $414,000 per year to operate in energy
           costs.  We note that the potential for ventilation
           additions is not only contingent upon available
           resources but also on engineering capacity.
           Ventilation quantity and velocity limitations are
           created for each mine by the distance, width and
           height of entries, road and dust conditions, and
           ground control conditions that may prevent
           expansion of entry dimensions.
                       Our exposures and control estimates
           tell us that our efforts may achieve compliance
           with the 400 standard, but we're concerned that
           MSHA's single sample compliance determination will
           still create compliance difficulties for the 400
           standard.  Moreover, we do not believe that           there's any feasible method of compliance with the
           160 standard.
                       As a result of our review of the
           health effect science, we agree with others that
           there is no valid risk assessment that supports
           the 160 standard scheduled to take effect in 2006.
           When we combine the risk analysis with the lack of
           potential for compliance, we conclude that MSHA
           must delete the 160 standard in this rulemaking.
                       First, we ask that MSHA accept and
           process requests for compliance extensions with
           the 400 standard before enforcement is initiated.
           Second, to the extent that the rulemaking
           implements the interim partial settlement
           agreement, we endorse it.  However, we believe
           that the agreement required MSHA to review the 160
           standard in this rulemaking, and we strongly urge
           them to delete the 160 standard.
                       The settlement with MSHA recognizes
           our position that DPM limits are not
           scientifically justified or technically or
           economically feasible, but permits implementation
           of the 400 total mark carbon limit, converted to
           elemental carbon, as a compromise.  Another part
           of that compromise in the reexamination of the 160           limit and the changes needed to fix the 400 rule.
           While we appreciate MSHA's settlement efforts and
           its attempt to fix the rule, we need the deletion
           of the 160 limit in the rulemaking to permit
           adequate mine planning and operation lead times
           and compliance efforts with the 400 standard.
                       Since the DPM rule selects one
           surrogate for measuring diesel exhaust based on
           measuring convenience, not a specific risk
           analysis, the DPM rule is somewhat redundant to
           the regulation of other diesel components such as
           regulated gases (CO, NO, NO2).  These existing
           standards provide protection, and OSHA relies on
           them for diesel engines in construction,
           tunneling, rail, truck, marine or bus depots,
           repair facilities, agricultural and aviation
           facilities.  We believe that the 400 settlement
           standard combined with the existing regulation of
           diesel gases provides more than adequate
           protection and that the 160 standard should be
           deleted.
                       The group proposal for an elemental
           carbon standard recognizes the interference
           problems identified earlier, and we endorse the
           change.  However, we still question the accuracy           of the new measurement system.  The submicron
           impactor was proven to be flawed before the rule
           was finalized and again during the field tests.
           We appreciate MSHA's repeated efforts to fix it,
           but we're still worried that it will continue to
           produce flawed results.  The device and method is
           simply too new to be used for enforcement.
                       We're particularly concerned that the
           results at or below 160 are not feasible from an
           accuracy perspective.
                       We appreciate MSHA's change in the
           rule to permit PPE, and we strongly urge MSHA to
           delete the prohibition of rotation of personnel as
           a protective option.
                       We oppose enforcement of occupational
           health standards based on a single sample because
           health standards are based on a long-term
           exposure, and laboratory results of single samples
           are not accurate representation of exposure or
           health risks.  We endorse MSHA's new enforcement
           policy which provides that MSHA will consider
           operator sampling results that differ from MSHA
           results in determining compliance, but we ask that
           that be made part of the rule.
                       At Federal Register Page 48706, MSHA           asks for information and data on the
           appropriateness of 1.3 as the factor to convert EC
           to TC, and the interim limit at 308 micrograms of
           elemental carbon derived from the original 400.
           The MARG Group responded during settlement
           discussions that its extensive sampling base
           published by Drs. Howard Cohen, Jonathan Borak and
           Thomas Hall support at least 320 micrograms of EC
           equivalent compared to a 400 microgram total
           limit, and we endorse that proposal.
                       MSHA states that 25 percent reduction
           is feasible and can be achieved by the control
           itself or in combination with other controls.  The
           controls should be evaluated independently but in
           reference to site-specific changes in DPM levels
           if meaningful decisions are to be made regarding
           their significance or effectiveness.
                       The DPM rules should not address other
           topics covered by other regulations, such as
           respiratory protection.  Current respiratory rules
           in 5005 are adequate and should be uniformly
           applied to all respirator applications.
                       We generally oppose plan proposals,
           even though this one is an improvement over the
           original January 2001 provision.  A control plan           adds paperwork without benefits and performance is
           still measured by DPM levels regardless of the
           plan.  The limited time and efforts of my health
           and safety personnel is better spent elsewhere.
                       Thanks for the opportunity to testify,
           and we may submit additional comments prior to the
           close of the comment period.
                       MS. SMITH:  Thank you, Mr. Leavitt.
                       Questions from the MSHA panel or other
           representative?
                       MR. SASEEN:  Becki.
                       MS. SMITH:  Okay.
                       MR. SASEEN:  You mentioned some
           failures of one month on some filters.  Can you
           elaborate on what that was, or would you like to
           include that in your written comments?
                       MR. LEAVITT:  I'll have to include
           that in the written comments because I don't have
           that information.
                       MR. SASEEN:  I would appreciate that,
           to see what specific failures were.
                       MR. LEAVITT:  Okay.
       
                       MR. POMROY:  Did you do like a failure
           analysis of those?                       MR. LEAVITT:  I didn't, but I'm sure
           it was done.  I'll have to get with our
           maintenance guys.
                       MR. POMROY:  Okay.  I have one other
           question too.  When you talked about not adding
           additional requirements related to PPE, are you
           more concerned about the selection of the
           respirators themselves or more with medical
           transfers and that aspect of it, or just anything
           having to do with PPE?
                       MR. LEAVITT:  You mean why I don't
           think it should be addressed in the rule?
                       MR. POMROY:  You said you were
           generally opposed to putting specific requirements
           related to PPE in the DPM standard, and we have
           complaints for the PPE requirements elsewhere.
                       MR. LEAVITT:  I just think it should
           be consistent, at one rule.  I don't know if this
           is really the place to address it.
                       MR. SASEEN:  Just one quick follow-up.
           On this matter was it one manufacturer or several
           filter manufacturers?
                       MR. LEAVITT:  We are currently using
           two.
                       MR. SASEEN:  Would you address that           specifically in your comments?
                       MR. LEAVITT:  Yes.
                       MS. SMITH:  Mr. Leavitt, thank you
           very much.  We appreciate your comments.
                       Do we have any others signed up for
           speakers?
                       What I think we'll do at this point is
           go off the record and reconvene at 1:00, and we'll
           check at that point to see if we have additional
           speakers who wish to present testimony, and if not
           we will close the record at that time, so we'll be
           back on the record at 1:00.
                       (Recess, 11:52 a.m. to 1:00 p.m.)
                       MS. SMITH:  We're back on the record.
           We have no further speakers lined up to testify
           today, and therefore we officially close this
           record.  Thank you for coming.
                       (Concluded at 1:00 p.m.)