UNITED STATES OF AMERICA 

	DEPARTMENT OF LABOR

	MINE SAFETY AND HEALTH ADMINISTRATION 

	PART 75-LOW-AND MEDIUM-VOLTAGE 
	DIESEL POWERED ELECTRICAL GENERATORS
	PROPOSED RULE

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	HEARING 

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	TUESDAY, 

	NOVEMBER 30TH, 2004


		The Hearing was held at 12:30 p.m., at the Radisson Hotel, 2 Waterfront Plaza, Morgantown, West Virginia, Marvin Nichols, Mediator, presiding.
PANEL:

MARVIN NICHOLS      Mediator
ARLIE MASSEY
ROBERT PHILLIPS
RONALD FORD
MICHELLE CURRAN

	A-G-E-N-D-A
	Page
OPENING STATEMENT 	3

PRESENTATION BY TIMOTHY COX - UMWA	8

PRESENTATION BY JIM BAKER - UMWA	10

	P-R-O-C-E-E-D-I-N-G-S
	12:26 p.m.
		MR. NICHOLS:  Good afternoon, everybody.  My name is Marvin Nichols, and I'm the Director of the Office of Standards for MSHA.  On behalf of David Dye, the Acting Assistant Secretary of Labor for Mine Safety and Health, I want to welcome all of you here to this public hearing today.
		This is the fourth and final public hearing on the Proposed Rule to address the use of low and medium voltage diesel powered generators.  We held hearings on November the 4th, in Salt Lake City, Utah; November the 16th in Birmingham, Alabama; and November the 18th in Lexington, Kentucky.
		The purpose of these hearings is to obtain input from the public on a Proposed Rule that was published in the Federal Register on June 25th, 2004.  That rule would allow the use of low and medium voltage diesel powered generators as an alternative means of powering electrical equipment. 
		The generators are portable and are used to power electrical equipment in, out, and around underground coal mines.  Copies of the Federal Register Notice contained in the Proposed Rule are available at the registration table.
		Let me take a minute to introduce my MSHA colleagues up here.  To my left is Bob Phillips. Bob is a health and safety specialist in coal mine safety and health, headquarters office.
		Next to Bob is Larry Cook.  Larry is a supervisory electrical engineer in Mount Hope, West Virginia District.  And at the end of the table is Michelle Curran.  Michelle is an attorney in our Solicitor's office.
		To my right is Arlie Massie.  Arlie is an electrical engineer in the Approval and Certification Center.  And next to Arlie is Ron Ford, who is an economist in the Standards Office.  And Pam King is back at our registration table.  Pam is a regulatory specialist in the Office of Standards, in our headquarters office.
		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 MSHA, formal rules of evidence will not apply.  Therefore cross examination of hearing panel members will not be allowed.  But the panel may explain and clarify provisions of the Proposed Rule. 
		Those of you who have notified us, in advance, of your intent to speak will be allowed to make your presentations first, and I will call the speakers in order that the requests were made.
		Following these presentations other 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 are sitting in the audience now, and wish to speak, we would like for you to sign in at the registration table.
		We will remain in session, today, until everyone who desires to speak has an opportunity to do so.  Also, if you are not speaking, we would request that you sign the attendance sheet so we have an accurate record of attendance for today's hearing. 
		We will accept written comments and information at this hearing from any interested party, including those who are not speaking.  And 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 that you would like to submit, for the record, leave a copy with us here today.  You can give written comments on this hearing today, or you can send them to MSHA's Office of Standards electronically, by facsimile, by regular mail, or hand carry using the address information in the Federal Register notice.
		The post-hearing comment period on this Proposed Rule will end on December 10th, 2004, and submissions must be received by that date.  A verbatim transcript of this hearing will be made part of the public record, and it will be posted on MSHA's website.
		If you would like a copy sooner you can make your own arrangements with the Court Reporter, and we have the Court Reporter's company information at the registration table.
		Before the speakers begin their testimony I would like to give you some background on the Proposed Rule we are addressing today.  Currently Title 30 of the Code of Federal Regulations, Section 75.701, and Section 75.901, established the grounding requirements for electrical equipment and low and medium voltage three phase circuits.
		Over the last 13 years mine operators have been using portable low and medium voltage diesel powered electric generators as an efficient means for providing a portable source of power to move electrical equipment. 
		However, when using these generators mine operators are unable to comply with the electric protection requirements of both of these standards.  To address their inability to comply mine operators have requested petitions for modifications from existing MSHA standards. 
		From January 1990, through October of 2003, there were 63 petitions requested and granted under 75.701 and 75.901, affecting 56 underground coal mines.
		We may grant a petition for modification of an existing standard, as long as the alternative method proposed by the mine operator achieves the same measure of protection afforded miners at all times under the existing standard, or the application of the existing standard reduces safety to miners.
		When MSHA grants a petition for modification it applies only to the individual mine.  Before we granted these petitions we evaluated the use of diesel powered electric generator equipment.  We recognized that diesel powered electrical generator with sensitive electrical circuit protections reduces fire, explosion, and shock hazards.
		When we granted the petitions we included, in the approval, the requirements that the operator must follow to maintain the protection afforded by existing standards. 
		The three major provisions of the Proposed Rule would require, one, the grounding resistor to limit ground fault current to 0.5 amperes under a ground fault condition.
		Two, the grounded phase protection device to cause the circuit interrupting device protecting the electrical circuits to open and shut down the diesel powered generator when not more than 90 milliamperes of fault current is detected by the system. 
		And three, the use of equipment testing devices and procedures that are designed to facilitate safe testing of the diesel powered electrical circuit prior to moving piece of equipment or performing work.
		We believe that this Proposed Rule increases miner safety by limiting the amount of voltage and current that miners can be exposed to under a ground fault condition and, by reducing the possibility of a fire, shock, or burn hazard through the safety features for personnel and equipment required by the standards. 
		Our first presenter is Timothy Cox with the UMWA.		
		MR. COX:  How are you doing today?
		MR. NICHOLS:  Okay, how are you doing?
		MR. COX:  Timothy Cox, Local Union 9909, safety committeeman.  I oppose the diesel generator regulation proposed to you for a couple of reasons.
		It is not under all the other diesel, it is all under all the other generators in MSHA.  Well, we can't figure that one out.  Second, I don't like anything that is not connected to earth ground.
		Where you gentlemen are electrical engineers, you can't hook a generator out here up unless it has its own separate ground.  From Allegheny Power, whoever, you have a generator to run your home it has to be hooked up to earth ground.
		And that is our biggest concern, they got these guys coming up with these new cables, and when it kills 15 or 20 men then we will be back in front of you again, and that is the wrong way to go about this. 		Diesel generators are not the way to help the operator get the piece of equipment to the face.  I don't know what is, but I know that I believe it to be an unsafe condition that is going to happen.
		Because you gentlemen know, up there, that things in the mines get left unattended.  Just like when we first got rubber tired gateless boulders, and today we have fletcher boulders.  And today we have battery powered tractors that are continually being neglected, as well Diesel generators will be neglected and cause a serious problem.  Thank you. 
		MR. NICHOLS:  Thank you.  Any questions for Timothy?
		(No response.)
		MR. NICHOLS:  Thanks.  The next presenter will be Tim Baker of UMWA.
		MR. BAKER:  My name is Tim Baker, I'm deputy administrator for occupational health and safety for the mine workers.  I will keep my comments brief because, to be quite honest with you, our opposition to the Proposed Rule is complete.
		I mean, we are looking at a situation where we do not support any aspect of the rule.  However, I would like to say that given that, and given the high powered, or high voltage Diesel generator, basically the rule within the continuous mining machinery, which should be placed in here, and we can attack all those things at the same time, those are all germane issues, and all connected together, diesel generators, we will deal with the voltages together.
		But we would like to see those things, that pulled out of that rule, put in here, and we can attack it all at the same time.
		The purpose, from our understanding, the purpose of the Proposed Rule for low and medium diesel powered generators is to allow operators to tram equipment in and out of the mine and from section to section, and also to do out-by work where they believe it is necessary, and then they wouldn't have to drag a distribution box, or a power center, or whatever the case may be, into an area to do that. 
		This poses, in our opinion, several problems with regard to health and safety.  Currently the use of diesel powered equipment in underground mines, which is more severely restricted, I think, in a state by state basis than as MSHA would look at it, requires that there be an individual on this equipment. 
		I mean, we are basically talking whether it is diesel powered ram cars, or transportation in and out of the mine, or whether it is a scoop, or whatever it is, somebody has to be on that piece of equipment to run it.
		And when they are not on that piece of equipment then that piece of equipment is turned off and taken out of service.  One of the major concerns we have here is that that is not necessarily the case with what we are dealing with here.
		If I'm working in an outby area, and I have a rock loader, and a shuttle car, and I'm powering those two pieces of equipment up to clean up a cave, or whatever the case may be, I can go in at the beginning of my shift and turn that diesel powered generator on, and walk away from that, you know, 8, 10, 12 breaks whatever it may be, and work on this cave.
		Leaving a piece of diesel powered equipment unattended, in those conditions, is in our opinion unacceptable.  The hazards that that poses for the overheating of the equipment, shock hazards that are presented by the equipment itself, and several other issues, just are not acceptable to the union. 
		Obviously there is the clear risk of the diesel particulate matter, and the diesel fumes that are being blown throughout the coal mine.  If I'm working in an area outby those things have to travel somewhere and, obviously, that is generally going to be inby, at least to some degree.
		The other thing that concerns us greatly is, despite the fact that there is a requirement for a grounding resistor this is not a grounded system based on what general understanding of grounding is in the mining industry. 
		I spoke about this briefly in Lexington but what we deal with, in the mining industry, is specifically a ground to earth.  And it is an intentional connection to the earth, okay?
		Whether we are powering the piece of equipment outby, or attaching this, and I'm still trying to get this straight in my own mind, if I'm putting a generator on a cart, and attaching that with some kind of a tow bar to a miner, there is no grounding system there, at all. 
		This, I think, lends itself to what would normally be considered a floating system where, you know, you  hope that the grounding resistor functions as it should.  But if you get a fluctuation in phase power, which does routinely happen, if you drop a phase in there, and the grounding resistor doesn't act as it should, the individual then becomes the ground.
		And we see this as an extremely distinct threat.  The equipment that we currently run, whether that is 480 volts, or today talking about 240 volt miners, those systems all go back to a grounding bed at some point.
		This system would not.  Now, we realize that there are many of these systems out there but evaluation given that, you know, we can't endorse the application of diesel powered generator in the underground setting, and we take that position. 
		Outside of that I guess there is no real necessity to get into a whole lot of detail beyond that, as far as we are concerned, because the opposition is clearly for the entire rule.  But I would be happy to entertain any questions that you may have.
		MR. NICHOLS:  The panel can correct me if I'm wrong but as I mentioned in my opening statement, we have 13 years experience on this and have granted 63 petitions at 56 underground coal mines.
		And, to my knowledge, these systems have operated without incident.  Is that correct? 
		MR. PHILLIPS:  That is correct. 
		MR. NICHOLS:  So what do you think about that? 
		MR. BAKER:  Well, you know, I think it depends on where the systems are at.  I think that a proliferation of these systems is not going to be beneficial within the industry. 
		MR. NICHOLS:  What practical way are you going to, what practical approach are you going to use to move this equipment? 
		MR. BAKER:  The same practical approach that they used at R&P when I worked underground there for 15 years; the same practical approach that they continue to use in a lot of these Consol and Peabody operations in this area.
		If you are going to move a piece of equipment you find yourself a distribution box, you take it where you need it, you plug it in, and you go from there. 
		MR. NICHOLS:  Is that practical?
		MR. BAKER:  It may not be economically what the company wants to do, but that is practical.  That is a grounded system, that is a completely grounded system. 
		MR. NICHOLS:  How much experience do you think you need, with any situation, to determine that this might be okay?  I mean, we have pretty good experience here with this. 
		MR. BAKER:  Well, and you know, I'm not exactly sure, Marvin.  Because I can go to Pennsylvania tomorrow and talk with Allen Davis, who has years and years of experience with electric, he is an electrical engineer for the State of Pennsylvania.
		And he has clearly told me, I'm not bringing those pieces of equipment in my coal mines, in this state.  They just absolutely will not bring those generators here, I will not permit them to do it.  And that is what he has told me.
		So he has a lot of experience and he is telling me this is an unsafe system, this is a system you should not have proliferated within the mining industry.  And that is what he has told me.
		And, you know, obviously he has a lot more electrical experience than I do.
		MR. NICHOLS:  Well, it just seems a little surprising to me that after, you know, petition after petition, after petition, that this would appear to be okay, and then we meet resistance when we just want to do --
		MR. BAKER:  Well, you know, I think there is actually two levels of resistance.  First of all, you know, part of that is my fault because, as I said in Lexington, I was unaware that these systems existed.
		And even though I have been told today that we have eight in UMWA operations, that is my fault, and I will accept that.  But I think when we look at, as we become educated to it, and we become opposed on several levels. 
		First of all, it is not just the generator itself, it is the diesel emissions that you are going to be giving out.  It is the potential for heating.  And you know what?  You may have 56 petitions, I'm absolutely certain there are not that many diesel generators out there, because I saw how many were revoked.   So you have fewer than that in operation, that becomes clear.
		And those petitions, and those individuals, or those inspectors, may be on top of that.  I believe you proliferate this around the coal mining community and you are not going to have that same handle on those pieces of equipment.  I think that is the nature of the beast.
		I think that you set yourself up for a major problem, and we are just looking to avoid that problem.  And the other thing that I think, and maybe I shouldn't feel this way, but I get a little irritated about it, as I read through two separate rules, but they both contain diesel generators in them, when it all should have been in one, it all should have been in here.
		And I saw that kind of as maybe a flag.  And I know last time you said to me sometimes, Tim, you are just suspicious.  You know, working 15 years for R&P Coal I have the right to be suspicious about how they operate.
		And I'm not saying that anybody on the panel up here is necessarily trying to do something that they don't believe this to be correct and safe.  I'm saying that we don't believe it to be correct and safe.  And we have to make our points based on what we believe to be in the best interest of the  mining community from our position. 
		MR. NICHOLS:  Well, you can't be surprised that these things are in use. I mean, whether it is a UMWA mine, or a non-union mine, you guys see a copy of every petition published.  And we have published 63 of them. 
		MR. BAKER:  We generally see most of those petitions.  I had not seen, until this rule came out, I had not personally seen a single petition on a diesel powered generator.
		MR. NICHOLS:  Okay.  Anybody else?
		MR. COOK:  Tim, this is Larry Cook.  Are you going to submit written comments on this rule?
		MR. BAKER:  Yes, yes, I will by the 10th.
		MR. COOK:  I know you said you were specifically going to with the high voltage.  Be sure you do the same thing with this one.
		MR. BAKER:  Yes, I will, I will.
		MR. MASSEY:  Are your comments, that you are going to submit in writing, going to explain how you see shock hazards for this equipment, and you don't see shock hazards on equipment that is earth grounded?
		MR. BAKER:  Well, yes.  I guess there will be a differentiation.  I'm not saying that we don't see shock hazards on earth grounded equipment.  I'm just saying that we see the potential is greater here, in this instance.
		MR. MASSEY:  So your comments will explain why it is greater?
		MR. BAKER:  Yes.
		MR. MASSEY:  Okay.
		MR. NICHOLS:  Okay, Tim, thanks.
		MR. BAKER:  Thank you. 
		MR. NICHOLS:  Is there anyone else in the audience that would like to give comments on the portable diesel generator rule?
		(No response.)
		MR. NICHOLS:  Okay.  What we will do, since the Federal Register Notice said that this Hearing would start at 1 o'clock, we will go off the record, we will go back on at one, we will hang around from one to two, and if we get no additional commenters then we will close the record.  Thanks.
	(Whereupon, the above-entitled matter went off the record at 12:46 p.m.  and went back on the record at 1:00 p.m.)
		MR. NICHOLS:  This is Marvin Nichols, we are back on the record for the portable diesel generator rule.  It is about one o'clock.  We do not have anyone in attendance to give comments.  We will go off the record and come back on at two.
	(Whereupon, the above-entitled matter went off the record at 1:00 p.m.  and went back on the record at 2:00 p.m.)
		MR. NICHOLS:  This is Marvin Nichols.  It is about two o'clock and the panel is here to take comments.  However, we have no commenters, so we are going to close the record on portable diesel generators.
		(Whereupon, at 2:01 p.m., the above-entitled matter was concluded.)





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