30 CFR PART 57                    )
                                  )
DIESEL PARTICULATE MATTER         )
EXPOSURE OF UNDERGROUND METAL     )
AND NONMETAL MINERS; PROPOSED     )    
RULE                              )        
















Pages:  1 through 297

Place:  Salt Lake City, Utah

Date:   May 11, 1999          MINE SAFETY AND HEALTH ADMINISTRATION
     
     
     
     30 CFR PART 57                    )
                                       )
     DIESEL PARTICULATE MATTER         )
     EXPOSURE OF UNDERGROUND METAL     )
     AND NONMETAL MINERS; PROPOSED     )    
     RULE                              )        
     
     
     
     
                                       Doubletree Hotel
                                       Salt Lake City, Utah
       
                                       Tuesday,
                                       May 11, 1999      
     
                   The parties met, pursuant to the notice, at 
     
     8:30 a.m.
     
                   PANEL:
     
                   THOMAS TOMB, Chief, Dust Division, Pittsburgh
                      Health and Safety Technology Center
     
                   JON KOGUT, Office of Program Evaluation and
                      Information Resources, MSHA
     
                   GEORGE SASEEN, Technical Support, MSHA
     
                   ROBERT HANEY, Technical Support, MSHA
     
                   SANDRA WESDOCK,  Office of the Solicitor, MSHA
     
                   RONALD FORD, Office of Standards, Regulations
                      and Variances, MSHA
     
                   PAMELA KING, Office of Standards, Regulations
                      and Variances, MSHA
     
                   JAMES CUSTER, Metal and Nonmetal Division, MSHA
     
                              P R O C E E D I N G S
                   MR. TOMB:  Good morning.  My name is Thomas Tomb,
     and I'm the Chief of the Dust Division, Pittsburgh Safety
     and Health Technology Center, located at Pittsburgh,
     Pennsylvania, and I will be the moderator for this public
     hearing on MSHA's proposed rule addressing diesel
     particulate matter exposure of underground metal and
     nonmetal miners.
                   Firstly, and on behalf of the Assistant Secretary
     J. David McAteer, I'd like to take this opportunity to
     express our appreciation to each of you for being here today
     and for participating in the development of this rule.
                   With me on the panel today from MSHA are:  John
     Kogut from the Office of Program Evaluation and Information
     Resources.  Do you want to let them know who you are, Jon? 
     George Saseen and Robert Haney of our Technical Support
     Center; Sandra Wesdock from the Office of the Solicitor;
     James Custer from Metal and Nonmetals Division in Arlington,
     Virginia; Ronald Ford and Pamela King from the Office of
     Standards, Regulations and Variances.
                   This hearing is being held in accordance with
     Section 101 of the Federal Coal Mine Safety and Health Act
     of 1977.  As is the practice of this agency, formal rules of
     evidence will not apply.
                   We are making a verbatim transcript of this
     hearing.  It will be made an official part of the rulemaking
     record.  The hearing transcript, along with all of the
     comments that MSHA has received to date on the proposed
     rule, will be available to you for review.  If you want to
     get a copy of the hearing transcript for your own use,
     however, you must make arrangements with the reporter.
                   We value your comments.  MSHA will accept written
     comment and other data from anyone, including those of you
     who do not present an oral statement.  You may submit
     written comments to Pamela King, who I've already introduced
     during this hearing, or send them to Carol Jones, Acting
     Director, Office of Standards, Regulations and Variances, at
     the address that was in the public notice.
     We will include them in the rulemaking record.
                   If you feel you need to modify your comments or
     wish to submit additional comments following the hearing,
     the record will stay open until July 26, 1999.  You are
     encouraged to submit to MSHA a copy of your comments on
     computer disk, if possible.  
                   Your comments are essential in helping MSHA
     develop the most appropriate rule to foster safety and
     health in our nation's mines.  We appreciate your views on
     this rulemaking and assure you that your comments, whether
     written or oral, will be considered by MSHA in finalizing
     this rule.  
                   In April of 1998, MSHA published a proposed rule
     which addressed exposure to diesel particulate matter in
     underground coal mines.  Hearings were held in 1998 and the
     rulemaking record closed on April 30, 1999.  
                   The scope of this hearing today is limited to the
     October 29, 1998, proposed rule published to address diesel
     particulate matter exposure of underground metal and
     nonmetal miners.  This hearing is the first of four public
     hearings to be held on a proposed rule.  We will hold
     additional hearings on May 13th in Albuquerque, New Mexico;
     May 25th in St Louis, Missouri; and May 27th in Knoxville,
     Tennessee.  
                   On October 29, 1998, in the Federal Register 63 FR
     58104, MSHA published a proposed rule that would establish
     new health standards for underground metal and nonmetal
     mines that used equipment powered by diesel engines.  The
     proposed rule is designed to reduce the risk to underground
     metal and nonmetal miners of serious health hazards that are
     associated with exposure to high concentrations of diesel
     particulate matter.  
                   Diesel particulate matter is a very small particle
     in diesel exhaust.  Underground miners are exposed to far
     higher concentrations of this fine particulate than any
     other group of workers.  The best available evidence
     indicates that such high exposures puts these miners at
     excess risk of a variety of adverse health effects,
     including lung cancer.  
                   The proposed rule for underground metal and
     nonmetal mines would establish a concentration limit for
     diesel particulate matter, and require mine operators to use
     engineering and work practice controls to reduce diesel
     particulate matter to that limit.
                   Underground metal and nonmetal mine operators
     would also be required to implement certain dust practice
     work controls similar to those already required of
     underground coal mine operators under MSHA's 1996 diesel
     equipment rule.  
                   Additionally, operators would be required to train
     miners about the hazards of diesel particulate matter
     exposure.  
                   Specifically, the proposed rule would require that
     the limit would restrict diesel particulate matter
     concentrations in underground metal and nonmetal mines to
     about 200 milligrams per cubic meter of air.  Operators
     would be able to select whatever combination of engineering
     and work practice controls they want to keep the DPM
     concentration in the mine below this limit.  
                   The concentration limit would be implemented in
     two stages:  An interim limit that would go into effect
     following 18 months -- after 18 months of education and
     technical assistance by MSHA, and a final limit after five
     years.
                   MSHA sampling would be used to determine
     compliance.  The proposal of this sector would also require
     that all underground metal and nonmetal mines using diesel-
     powered equipment observe a set of best practices to reduce
     diesel emissions, and that would be such as the use of low
     sulfur fuel.  
                   The comment period on the proposed rule was
     scheduled to close on February 26, 1999.  However, in
     response to requests from the public for additional time to
     prepare their comments, and with additional data added to
     the rulemaking record by MSHA, the agency extended the
     public comment period until April 30, 1999.  
                   The agency welcomes your comments on the
     significance of the material already in the record and any
     information that can supplement the record.  For example, we
     welcome comments on additional information on existing and
     projected exposures to DPM and to other fine particulates in
     various mining operation; the health risk associated with
     exposure to DPM; the cost to the miners, their families and
     their employers on the various health problems linked to DPM
     exposure; or additional benefits to be expected from
     reducing DPM exposures.
                   The rulemaking record will remain open for
     submission of post-hearing comments until July 26, 1999.
                   MSHA received comments from various sectors of the
     mining community and has preliminarily reviewed the comments
     it has received thus far.  MSHA would particularly like
     additional input from the mining community regarding
     specific alternative approaches discussed in the economic
     feasibility section of the preamble.
              
                   As you might recall, some of the alternatives
     considered by MSHA included:  An approach that would limit
     worker exposure rather than limiting particulate
     concentration; a lower limit; shortening the time frame to
     go to the final limit; more stringent work practices and
     engine controls; and requiring particulate filters on all
     equipment.
                   The agency is also interested in obtaining as many
     examples as possible of specific situations in individual
     mines.  For example, the composition of diesel fleet; what
     controls cannot be utilized due to special conditions; and
     any studies of alternative controls you might have evaluated
     using MSHA's computerized estimator which was listed in the
     preamble of the proposed rule.  
              We would also like to hear about any unusual situations
     that might warrant the application of special provisions.  
                   The agency welcomes comments on any topics on
     which we should provide initial guidance as well as any
     alternative practices which MSHA should accept for
     compliance before various provisions of the rule go into
     effect.  
                   MSHA views the rulemaking activities as extremely
     important and notes that your participation is also a
     reflection of the importance you associate with this
     rulemaking process.  To ensure that an adequate record is 
     made during this proceeding, when you present your oral
     statements or otherwise address the panel, I ask that you
     come to the podium and clearly state your name, spell your
     name, and state the name of your organization that you
     represent.  
                   It is my intend that during this hearing anyone
     who wishes to speak will be given an opportunity.  Anyone
     who has not previously asked for time to speak needs to tell
     us of their intention of doing so by signing the sheet out
     in the hallway.  And when you sign the sheet, we also need
     to know how much time you need to make the presentation.
                   Time will be allocated for you to speak after the
     scheduled speakers that we already have on the list.  We are
     scheduled to go until five p.m. today.  Of course, we will
     call a halt if we run out of speakers.
                   I will attempt to recognize all speakers in the
     order in which they requested to speak.  However, as the
     moderator, I reserve the right to modify the order of
     presentation in order of fairness.  I doubt that it will be
     necessary, but I also may exercise discretion to exclude
     irrelevant or unduly repetitious material, and in order to
     clarify certain points, the panel may ask questions.
                   Our first speaker today or our first presentation
     is being made by the National Mining Association, and I have
     Bruce Watzman as the key person to organize it.
                   MR. ING:  Good morning.  My name is Wes Ing.  I
     work for ASARCO, Incorporated.  This morning I am --
                   MR. TOMB:  Could you please spell your name for
     the reporter, please?
                   MR. ING:  Last name is spelled I-N-G.  
                   I serve as the Chairman of the National Mining
     Association metal/nonmetal diesel task group.  I and my
     colleagues, who I will introduce next, are pleased to be
     representing the members of the National Mining Association
     and the Nevada Mining Association.
                   Joining me this morning on the panel are:  Chris
     Rose, Industrial Hygienist, Newmont Gold; Dr. David Drown,
     Utah State University; and John Head, Principal Mining
     Engineer, Harding Lawson Associates.  
                   We appreciate the opportunity to appear and
     present the views of the collective members of the National
     Mining Association and the Nevada Mining Association on this
     most important regulatory proceeding.  
                   Today we speak to three general areas.  First, I
     will review the use of diesel-powered equipment in
     underground metal/nonmetal mines.  Second, I will briefly
     comment on what we perceive to be serious deficiencies in
     the rationale underlying the proposal; namely, the agency's
     flawed and incomplete risk assessment.  And, third, I will
     present some preliminary comments on particular technical
     aspects of proposed Part 57, Subpart D.
                   Following my presentation Chris Rose will comment
     on the analytic methodology that MSHA has recommended for
     characterizing diesel particulate exposures in metal and
     nonmetal mines and which we would assume would be used to
     determine compliance with the proposal; the so-called "NIOSH
     5040" method.  Chris will present documentation on an
     extensive sampling program adopted by several Nevada Mining
     Association members and others, which will demonstrate a
     number of inconsistencies and irregularities they have
     identified with respect to the NIOSH 5040 method.
                   Next, John Head will present the preliminary
     results of his review of the agency's economic feasibility
     analysis.  John has been retained by the National Mining
     Association, the Salt Institute, The National Stone
     Association and MARG Coalition, so his work represents an
     analysis of the full spectrum of the underground metal and
     nonmetal mining industry potentially subject to this rule. 
     The industry wide technical feasibility report is still
     under review.
                   We will be filing more detailed written comments
     by the close of the comment period and may supplement our
     testimony, if necessary.  While we will be happy to answer
     any questions you have, we ask that, to the degree possible,
     that questions be held until the completion of the entire
     panel presentation.
                   It should go without saying that both the National
     Mining Association and the Nevada Mining Association have a
     keen level of interest in this proceeding as it will, in
     large part, determine what equipment and under what
     circumstances diesel technology will continue to be used in
     underground metal/nonmetal mines.  Let us be clear at the
     outside, we are convinced that diesel-powered equipment is
     not only safe for use in underground metal/nonmetal mines
     but that it has significantly improved the safety in our
     mines.
                   As noted in the preamble to the proposed rule,
     diesel-powered equipment was first introduced into the
     underground metal/nonmetal mining environment 60 years ago,
     and its use continues to increase today.  Today an excess of
     6,000 pieces of equipment ranging from less than 50 to more
     than 650 horsepower are used to provide a variety of work
     tasks, and we maintain that these tasks are performed more
     safely because of diesel-powered equipment.  This is
     significantly higher than the number contained in the
     agency's analysis.
                   Yes, it is true, as some will argue, that diesel-
     powered equipment is more productive and provides the
     operator with greater flexibility.  And it is also true,
     however, that this added level of flexibility and
     productivity is what keeps some marginal mines operating in
     today's difficult economic climate.
                   This is not to say, however, that we should
     sacrifice miners' health for economic gain.  Our employees
     are our most valuable asset.  My employer will not ascribe
     to such a strategy nor will the other members of the
     organization we are representing today.  A balance between
     ensuring the safety and health of miners and maintaining the
     economic viability of a mining venture can and must be
     established.  We believe that we are achieving that balance
     today, but it is becoming more and more difficult to do so.
                   Regrettably, my company and others represented
     here have had to close operations that had existed for
     decades and we fear that excessive regulation of our
     industry will lead to a continuation of this trend.  Let's
     be clear -- these jobs don't return once they are lost.  We
     need to strike a balance -- a balance that is lacking in the
     proposal before us today.
                   Suffice it to say, if the proposed regulation
     takes effect as written, and if metal/nonmetal mining is
     forced to resort to trolley systems and trailing cables
     underground, our industry will not be able to compete in the
     world economy.
                   Rationale for the proposed rule:  Inherent in the
     proposed rule is the belief that underground metal and
     nonmetal miners are exposed to unacceptable, unhealthful
     concentrations of diesel particulate matter.  The belief is
     premised on the results of 25 underground mine surveys which
     concluded that the mean diesel particular matter, DPM,
     concentration in production areas and haulage ways was 755
     micrograms per cubic meter and in travel ways the mean DPM
     was 307 micrographs per cubic meter.  These levels are then
     compared to the range of exposures reported for other
     occupations and for ambient air.  MSHA then concludes that
     since the miners' exposure to DPM is significantly higher
     than that of others, they face a significant health risk
     warranting regulatory action.  MSHA's conclusion raises
     significant doubts and questions.
                   First of all, we are uncertain about the
     credibility of the exposure results contained in the 25 mine
     surveys . The preamble notes, "With two exceptions, dpm
     measurements were made using the RCD method (with no
     submicrometer impactor.)"  The RCD method uses a pre- and
     post-weighed filter, which is subjected to a controlled burn
     of 500 degrees C.  It is believed that these particles,
     which comprise the organic carbon fraction, are eliminated
     during the ashing process.  The residue is then believed to
     compromise elemental carbo from diesel exhaust.
                   We have learned that many metal and nonmetal mines
     contain carbonaceous elements in their ore body, which
     require temperatures in excess of 900 degrees to burn.  We
     therefore seriously question whether some of the exposures
     to diesel particulate matter might not be confounded by
     unincinerated material that has nothing to do with diesel
     exhaust.
                   Quite frankly, our awareness of the potential for
     error in the RCD and NIOSH 5040 methods as applied in non-
     coal mines is relatively new.  Yet, is has raised
     significant questions regarding the validity of the exposure
     results presented.
                   MSHA has already admitted that these analytical
     methods cannot be used in coal mines due to the interference
     provided by the carbon content of coal.  If, indeed, the ore
     bodies in some of the surveyed mines contain carbonaceous
     material that exerts a similar interference with sampling,
     we must question the accuracy of the DPM exposure levels
     asserted by MSHA.
                   Accordingly, since this problem has arisen in the
     midst of rulemaking, we call on MSHA to examine and resolve
     the matter before this comment period closes in order to
     permit us to review the underlying data and submit
     appropriate comments.             
                   Lack of adequate scientific basis:  Contained
     within the preamble to the proposed rule is a risk
     assessment which serves as the second prong forming the
     basis for the agency's conclusion that miners face a
     significant risk of material impairment of health because of
     exposure to diesel particulate matter.  
                   The risk assessment represents a collection of
     evidence whose reliability is of questionable value.  It
     cannot be considered a quantitative risk assessment for
     regulatory purposes because of its lack of exposure-response
     information.  Rather, it relies upon the results of
     previously conducted animal exposure studies and human
     epidemiological data which have been rejected by other
     regulatory bodies as being of insignificant quality for
     purposes of strictly regulating diesel particulate matter.
                   For example, today it is generally agreed by most
     researchers that the production of tumors in rats exposed to
     diesel particulate matter is a result of lung overload, a
     phenomenon unique to the rat lung as compared to the lung of
     hamsters and primates.  Moreover, contrary to the agency's
     belief, researchers today discount the overload phenomenon
     as masking the potential for carcinogenicity of diesel
     particulate matter for either rates or humans.  
                   Just last year, the Clean Air Science Advisory
     Board, in reviewing the draft EPA diesel assessment
     documents, stated, and I quote:
                   "Current knowledge comprises compelling evidence
     that the species-specific, overload-related rat lung tumor
     response to high level exposures is not useful for
     estimating risk at environmental levels, and is of doubtful
     relevance to human risk from higher occupational exposures."
                   Similarly, the epidemiological data on the issue
     of diesel exhaust and health effect is, at best,
     inconclusive and inconsistent.  They provide no convincing
     evidence as to whether there is an increased risk of cancer
     due to exposure to diesel exhaust.  Indeed, the principal
     author, Garshick, of the study thought to be the most
     compelling in establishing the diesel exhaust/cancer
     relationship now agrees that the railroad worker data cannot
     be used for conducting a quantitative risk assessment.
                   Of the several epidemiological studies cited in
     the risk assessment, none can be taken as conclusive
     evidence of a causal relationship between diesel exhaust and
     lung cancer.  Their collective failure to control for
     confounding raises serious questions regarding the reported
     results and they are insufficient for the purposes intended
     by the agency.
                   Looking beyond the risk assessment for
     establishing a diesel exhaust/lung relationship, the
     document fails to consider the non-cancer endpoints for
     conducting a quantitative risk assessment to establish an
     exposure limitation.  Simply stated, dose makes the poison
     and the risk assessment fails to quantify a level at which
     this threshold is elipsed.  The risk assessment is wholly
     inadequate for making cancer determinations and it is
     unfathomable to think that this will serve as the basis for
     the agency to render a non-cancer determination.
                   The agency is charged with the responsibility
     under the Mine Act to promulgate standards using the best
     available evidence.  NIOSH, the agency charged with research
     for MSHA, currently indicates that diesel particulate matter
     cannot be linked with significant risks of material
     impairment of health in miners.  Dr. Debra Silverman, the
     leading NIOSH/NCI diesel researcher notes, and I quote, "The
     repeated findings of small effects, coupled with the absence
     of quantifiable data on historical exposures, precludes a
     causal interpretation."
                   Therefore, the scientific study currently underway
     between NIOSH and the National Cancer Institute, upon which
     you will receive testimony, will resolve many of the
     shortcomings I just identified.  
                   We support the evidence of the companies involved
     in that study and would again urge the agency to await until
     the results of that investigation before promulgating final
     rules.  While seven years may be too long to await a final
     report, we understand that interim reports from the study
     will be made available.  The study has the potential to fill
     in many knowledge gaps that exist regarding diesel exposure
     in mining.  MSHA should recognize, as well as others within
     the rulemaking community, NIOSH and the EPA, that these gaps
     prohibit us from making reasonaBle decisions today.
                   Besides the technical and analytical feasibility
     requirements contained within the Mine Act, the agency also
     must take into account a concurring opinion from the Supreme
     Court's Benzene Decision.  Former Chief Justice Burger
     warned against economically destructive regulation achieving
     only a marginal or speculative benefits at best, and I
     quote:
                   "When discharging his duties under the statute,
     the Secretary is well admonished to remember that a heavy
     responsibility burdens his authority.  Inherent in this
     statutory scheme is authority to refrain from regulations of
     insignificant or de minimis risks.... when the
     administrative record reveals only scant or minimal risk of
     material health impairment, responsible administration calls
     for avoidance of extravagant, comprehensive regulation. 
     Perfect safety is a chimera; regulation must not strangle
     human activity in the search for the impossible."
                   The proposed rule and its shortcomings:  Unlike
     the proposed rule on coal diesel particulate matter, the
     metal/nonmetal rule does not result from deliberations of an
     advisory committee, nor did it follow the promulgation of a
     diesel safety standard.  Rather, it represents an attempt by
     the agency to package both aspects into one, so as to ease
     criticism from workers not covered by the coal rule.
                   In doing so, it incorporates concepts and
     practices commonplace to the coal sector, but also goes
     beyond that by injecting new practices whose utility is of
     questionable value.  Rather than seeking to build upon the
     existing regulatory structure, of which all are familiar,
     the proposed rule follows a course, which will lead to
     confusion, controversy and unnecessary litigation.
                   By the close of the comment period we will file
     detailed comments on the proposal dealing with their
     potential application to the metal and nonmetal mining
     sector.  While some provisions have equal application to the
     coal as well to metal/nonmetal sectors, others are
     inappropriate.  They represent a dramatic and troubling
     expansion of the authority extended to our hourly workforce
     and could be abused by those seeking to achieve totally
     unrelated goals.
                   We remain committed to providing our employees
     with a safe and healthful workplace.  Where problems exist
     or hazards are identified, we will commit the resources to
     remedy them.  In this instance, however, we do not believe
     that the agency has adequately demonstrated, on the basis of
     the best available science, that miners are exposed to
     hazardous conditions.  Moreover, we are suspect of the data
     underlying the proposal and must take issue with the
     agency's selective presentation of the epidemiological
     studies conducted on exposure to diesel exhaust.
                   Collectively we need to learn ore -- more about
     DPM generation, more about diesel particulate matter
     sampling and more about the health implications of exposure
     to diesel particulate matter.  
                   Officials at the Health Effects Institute, who are
     widely considered to be the leading experts in this field,
     have reached this same conclusion.  For these reasons, we
     recommended that MSHA stay this rulemaking proceedings and
     join in a coordinated effort with other agencies and
     nongovernmental experts to develop a scientific and feasible
     basis for regulating diesel particulate matter in the
     workplace.
                   Now I'd like to turn it over to Chris Rose for his
     remarks.  
                   MR. TOMB:  Is this going to be a presentation on
     the slides?
                   MR. ROSE:  My name is Chris Rose.  It's C-H-R-I-S-
     T-O-P-H-E-R R-O-S-E.  And representing --
                   AUDIENCE:  Turn on the make.  I can't hear you.
                   MR. ROSE:  I'm representing the National Mining
     Association, and also the Nevada Mining Association.
                   AUDIENCE:  It's still hard to hear.  Is it on?  
                   MR. ROSE:  How's that?  Good.
                   Mr. Chairman and panel members, thank you for the
     opportunity to present testimony on this proposed rule.  My
     name is Chris Rose.  I am an Industrial Hygienist with
     Newmont Gold Company.  I also chair the Industrial Health
     Subcommittee of the Nevada Mining Association.
                   I am here today to discuss a large study which was
     led by members of the Nevada Mining Association, which was
     conducted to investigate suspected flaws in MSHA's proposed
     sampling and analytical methods.
                   As you will see throughout this presentation, we
     have substantiated each of the concerns which we tested.  We
     believe that MSHA's proposed sampling and analytical methods
     are so flawed that they cannot possibly measure diesel
     particulate exposures accurately in underground metal and
     nonmetal mines.  
                   Again, I would like to make sure that all of your
     questions are addressed, but in the interest of time I
     request that we hold them until the end of the panel's
     presentation.
                   (Slide.)
                   This slide summarizes -- let's see, can we dim the
     lights?  Would that help?  Is that visible?  
                   This slide summarizes our general concerns with
     the MSHA's proposed sampling and analytical methods.  We
     will discuss each in detail and describe the data we have
     obtained which substantiates each of these concerns.
                   First, measurements of airborne carbon are not
     representative of diesel particulate matter.  Airborne
     carbon, as they use the term today, refers to each of
     elemental carbon, or EC, organic carbon, or OC, and total
     carbon, TC, as determined by NIOSh 5040 analysis.
                   Number two, analytical laboratories have
     difficulty accurately measuring carbon deposited on filters.
                   And, third, MSHA's proposed sample collection
     method does not accurately measure a miner's exposure to
     airborne carbon, and therefore to DPM.
                   (Slide.)
                   This study was a very large and cooperative
     effort, which was conducted with the assistance of numerous
     mining companies and industrial hygiene experts.  
                   The study was developed with the assistance of: 
     Dr. Howard Cohen, Ph.D., CIH of Boston University; Dr.
     Thomas Hall, Ph.D., CIH of University of Oklahoma; and Dr.
     Edward Zellers, Ph.D., CIH of University of Michigan.
                   The sampling protocol and analysis of the results
     of the study were also reviewed and validated by Dr. David
     Drown, Ph.D., CIH of Utah State University.  And Dr. Drown
     will be testifying after this presentation and will address
     this study in his comments.
                   Eleven metal/nonmetal mines in three states have
     collected a total of 512 samples to date.  The samples were
     analyzed at DataChem, Clayton, and DCM Science Laboratories.
                   (Slide.)
                   In the preamble, MSHA claims that "The only
     potential sources of carbon in underground metal and
     nonmetal mines would be organic carbon from oil mist and
     from cigarette smoke..."  MSHA then goes on to imply that
     oil mist sources are limited to poorly maintained diesel
     equipment:  "Oil mist may occur when diesel equipment
     malfunctions or is in need of maintenance."
                   It is obvious that MSHA has not finished its
     homework.  As I will demonstrate, these are not the only
     sources of airborne carbon in underground metal/nonmetal
     mines.
                   (Slide.)
                   In our first set of tests, we demonstrate that
     numerous non-diesel airborne carbon substances are found in
     underground metal -- I'm sorry -- which are found in
     underground metal/nonmetal mines erroneously show up as DPM
     when sampling with MSHA's proposed method.
                   We conducted a series of tests to substantiate
     these concerns, which we will now discuss.
                   The study confirmed significant levels, that is,
     with respect to s proposed exposure limit, of several
     sources of non-diesel airborne carbon.
                   First, carbon-bearing rock is found in numerous
     underground metal/nonmetal mines.  Some commonly occurring
     forms of carbon include dolomite, calcite, graphite and
     bitumen, among others.
                   Although MSHA fails to recognize this as a source,
     oil mist from pneumatic drills commonly used in the industry
     interfere with the proposed method.
                   And while MSHA does recognize cigarette smoke as
     an interferant, it fails to recognize the difficulty that
     mine operators may encounter when trying to control it.  In
     addition, we question whether MSHA has fully recognized the
     magnitude of this interference.
                   (Slide.)
                   In our first test we sought to prove that non-
     diesel airborne carbon will be found at significant levels
     where miners normally work and travel, and we've clearly
     proven this.
                   We have confirmed the presence of ubiquitous and
     significant non-diesel sources of airborne carbon in
     underground metal/nonmetal mines, again, in areas of the
     mine where miners normally work and travel, these are
     representative areas as MSHA proposes to sample.
                   Measurements of airborne carbon in underground
     metal/nonmetal mines are no solely measurements of DPM. 
     While some DPM may have been included in these measurements,
     other confounders added significantly to the measurement.
                   (Slide.)
                   Sample pairs were collected, consisting of one
     sample taken open-faced and one with a 10 millimeter nylon
     cyclone pre-selector.  These cyclones are designed with a
     median cut point of 3.5 microns.
                   The difference between the open-face measurements
     and the cyclone measurements represents a portion -- i want
     to emphasize that -- it represents a portion of the non-
     diesel airborne carbon that's included in the supposed DPM
     measurement.
                   On page 58,129 of the preamble, MSHA states that,
     "...the fraction of dpm particles greater than 1 micron in
     size in the environment of non-coal mines can be as great as
     20%."  Following this logic, a negligible portion of the
     actual DPM should be separated out by the cyclone while
     interfering carbon substances larger than respirable size
     would be selected out.
                   However, other testing we have conducted shows
     that this size selection criteria still allows for
     significant amounts of other non-diesel airborne carbon
     particles to be included even in the cyclone measurement.
     That would be non-diesel airborne carbon particles of
     respirable size.
                   (Slide.)
                   This table compares the ratio of paired open-face
     and cyclone measurements for organic carbon, elemental
     carbon and total carbon.  
                   For example, an average total carbon ratio of 1.29
     means that the open-face sample was 1.29 times higher on
     average than the cyclone sample.
                   Another way to look at it would be that the
     organic carbon measurements were 43 percent higher when
     sampled open-faced, as compared to sampling with a cyclone
     preselect.  Likewise, elemental carbon measurements were 17
     percent higher and total carbon measurements were 29 percent
     higher when sampled without a cyclone.
                   These differences are not due to DPM.  They are
     measurements of some other interferant, a DPM would not be
     selected out with the cyclones we used.
                   The term "G. Mean," right here, in the table
     stands for geometric mean, which was used to account for the
     lognormal characteristics of the observed distribution.  The
     actual average, the arithmetic average, was much higher;
     actually, 1.37, so 37 percent higher.  This means the
     displayed -- sorry -- the means displayed above are
     statistically significant from 1.0 at the 95 percent
     confidence level, indicating the presence of non-diesel
     airborne carbon in areas of the mine where the samples were
     taken, which were areas of the mine where miners normally
     work and travel.
                   (Slide.)
                   Our sample results confirm that there is non-
     diesel carbon in underground metal/nonmetal mines.  In-mine
     cyclone testing will not completely screen out these
     interferences.
                   This renders the sampling proposal not feasible
     and will result in erroneous enforcement actions.
                   (Slide.)
                   Our next two tests confirm that the rock we mine
     results in substantial airborne carbon measurements when
     using MSHA's proposed method.
                   Many underground metal/nonmetal mines work in
     carbon-bearing ore bodies.  Again, common ore types and
     waste rock contain large amounts of carbon including
     calcite, dolomite, graphite and bitumen.
                   When using NIOSH 5040, these naturally occurring
     carbon-bearing compounds result in measurements of
     significant airborne carbon even when there is an absence of
     DPM.
                   (Slide.)
                   For the first test samples were collected in dusty
     area of laboratories which were processing underground ore
     samples.  This dust would be of the same composition as the
     dust found in the underground miles.  The samples were sent
     for NIOSH 5040 analysis as if they were DPM samples.
                   No source of DPM or any other recognized source of
     airborne carbon was present in the area where the samples
     were collected.
                   The results confirm our hypothesis that airborne
     carbon from underground ore bodies will cause non-zero
     results for both elemental carbon and organic carbon, and
     therefore total carbon, when analyzed using NIOSH 5040, even
     when there is no possible source of diesel particulate
     matter in the area.
                   (Slide.)
                   As indicated by this slide, the average results
     for total carbon is nearly six times MSHA's proposed
     exposure limit.  This is in a lab where there was no diesel
     particulate matter present.  These averages are
     substantially greater than zero at the 95 percent confidence
     level, confirming the fact that carbon-bearing ore strongly
     interferes with MSHA's proposed sampling and analytical
     methods.
                   Just take a look at the ranges here.  We found
     from 40 to 7,450 micrograms per cubic meter of total carbon. 
     Elemental carbon actually also showed some significant
     problems, ranging up to 5,810.  Contrast this to a proposed
     limit of 160.  This is rock dust.
                   These results definitely indicate that the
     presence of airborne carbon-bearing dust will result in
     measurements of DPM when analyzed using NIOSH 5040.  Again,
     the samples were collected inside a laboratory, where there
     was no possible source of DPM>  The results are due to the
     carbon contained in the underground ore samples being
     processed.
                   (Slide.)
                   In the preamble on page 58,129, MSHA states that,
     "The only potential source of carbon in underground metal
     and nonmetal mines would be organic carbon from oil mist and
     cigarette smoke."
                   As this slide shows, this is clearly not the case. 
     Multiplying the average total carbon measurement, which was
     again 920, by the average elemental carbon percent gives a
     measurement of, or gives a measurement at MSHA's proposed
     exposure limit based on elemental carbon alone.  
                   (Slide.) 
                   The second test dealing with carbon-bearing rock
     consisted of collecting bulk samples at various ore and
     waste rock headings throughout the mines.  The bulk samples
     were then pulverized and sent to the analytical laboratory
     where they deposited a measured amount of the dust onto the
     filters.
                   They then analyze those filters using NIOSH 5040,
     just as if they were DPM samples.  And the results were
     reported as micrograms of carbon per gram of dust.
                   When the dust represented by these bulk samples is
     suspended in the air during normal mining activities, at
     acceptable airborne dust levels, significant levels of
     airborne cars would be measured, even in the absence of
     actual diesel particulate matter.
                   (Slide.)
                   To illustrate our methodology, I will now go
     through an example.
                   Sample X, which is a common ore type, was
     determined to result in a measurement of 159 milligrams of
     total carbon per gram of dust.  That's the figure shown here
     in blue.  Here and here in the calculation.  MSHA's exposure
     limit for total dust is 10 milligrams per cubic meter, the
     number in red here and here.  The resulting total carbon air
     concentration, if that type of dust were suspended in the
     air at MSHA's exposure limit for total dust, would be 1.6
     milligrams per cubic meter of total carbon or 1600
     micrograms per cubic meter total carbon.  That's 10 times
     the proposed exposure limit for DPM, at a compliant dust
     level, in the absence of actual DPM.
                   The 10 milligrams per cubic meter was used because
     it's MSHA's exposure limit for total dust.  If we were to
     use lower numbers, such as a typical respirable dust
     exposure limit, it will still result in total carbon
     measurements exceeding MSHA's exposure limit.
                   I'd like to note that in your handouts this
     character didn't come out when I put it on the computer.  I
     believe it's -- that character right there in your handout
     it shows just a blank box.  It's a mu for micrograms.  
                   (Slide.)
                   Here again we have -- here we have again tested
     the potential for interferences from carbon-bearing rock,
     and have gain confirmed a strong interference.  As described
     in the table, airborne carbon measurements could be well
     above MSHA's proposed exposure limit at acceptable dust
     concentrations.  Our median measurement would be four times
     MSHA's proposed exposure limit for DPM, and eight percent of
     our measurements would exceed MSHA's proposed limit by 21
     times.  Eight percent exceeded the proposed exposure limit
     by 21 times at an acceptable dust level without DPM present.
                   Thus, while these conditions would be in
     compliance with MSHA's dust standard, NIOSH 5040 samples
     collected in this environment would be out of compliance
     with MSHA's proposed DPM exposure limit by a fourfold
     factor, all in the absence of DPM.
                   The median for each type is substantially greater
     than zero at the 95 percent confidence level, confirming a
     strong interference.
                   (Slide.)
                   These tests illustrate our concerns that when
     using MSHA's proposed method, underground metal and nonmetal
     mines will erroneously measure airborne carbon -- from EC
     and OC individually, and of course total carbon -- in excess
     of MSHA's proposed exposure limit.  This will occur even in
     the absence of actual diesel particulate matter due to the
     presence of carbon-bearing rock.
                   This renders the sampling proposal not feasible.
                   This will result in erroneous enforcement actions. 
     MSHA cannot accurately enforce any exposure limit on DPM as
     a result of these interferences.
                   (Slide.)
                   Pneumatic drills are used extensively in the
     mining industry for many uses, including rock bolting.  They
     are lubricated by adding oil to the compressed air supply. 
     These drills generate a fine mist of oil that spreads
     throughout the area.  However, oil mist measurements
     indicate that exposures do not exceed MSHA's exposure limit
     for oil mist.
                   The pneumatic drills are commonly used -- many
     miners are required to use one during each of -- each shift
     during their normal cycle.  These are commonly used.
                   The study confirmed that airborne carbon
     measurements are well in excess of MSHA's proposed exposure
     limit, again, in the absence of DPM and at compliant oil
     mist levels.
                   (Slide.)
                   For this section of the study, sample pairs were
     collected in areas where miners use pneumatic drills and no
     source of DPM was present.  These were areas of the mine
     where fresh air was provided directly to the heading.  There
     was no possibility for including of DPM, even from upstream
     air.
                   The sample pairs consisted of two open-face
     cassettes hung side by side.  One of them was analyzed for
     oil mist and the other was analyzed as if it were a DPM
     sample per NIOSH 5040.
                   Sample results verified that all oil mist
     measurements were below MSHA's exposure limit for oil mist. 
     The areas tested were typical of locations where pneumatic
     drills are used, and oil mist air concentrations were in
     compliance.
                   The oil mist and DPM samples were then compared to
     determine the relationship between airborne oil mist and
     measurements of airborne carbon.
                   (Slide.)
                   As this side demonstrates, total carbon
     measurements, as measured by MSHA, had a median value nearly
     17 times MSHA's proposed exposure limit for DPM -- even with
     no DPM present.  The median values presented here are
     substantially greater than zero at the 95 percent confidence
     level, indicating a strong oil mist interference.
                   Let's look at the ranges.  Even the minimum
     measurement was well above the exposure limit.  The maximum
     ranged to about 17 times the proposed limit.  More
     importantly, let's look at elemental carbon.  Even that one
     we did detect significant levels of elemental carbon in
     these oil mist headings, and I'll talk about why we believe
     that is oil mist and not something else in the next slide.
                   This is not a source of oil mist that we can
     eliminate by tuning our engines, as MSHA claims.  This is
     not a rare occurrence.  This is part of many miners normal
     work cycles and takes place in many areas of many mines
     every day.
                   (Slide.)
                   Again on page 58,129, MSHA states that "The only
     potential source of carbon would be organic carbon from oil
     mist and cigarette smoke.  Oil mist may occur when diesel
     equipment malfunctions or is in need of maintenance."
                   As our study results show, we not only found
     substantial amounts of oil mist and organic carbon from a
     source not previously recognized by MSHA, but we also found
     elemental carbon present at high levels.
                   Not only was elemental carbon present, but it was
     tightly correlated with the oil mist measurements, which
     clearly shows that it is a response to the oil mist and not
     to some other confounder.  We observed the same type of
     relationship to oil mist with organic carbon and total
     carbon levels.  R2 values for all three measures exceeded
     0.9.  That's a pretty tight correlation.
                   Again, this issue renders the sampling proposal
     not feasible and we are concerned that this will result in
     erroneous enforcement action.     
                   (Slide.)
                   The next set of slides deal with cigarette smoke
     being an interferant with NIOSH 5040.
                   On page 58,129 of the preamble, 
                   MR. ROSE:   contends that "Cigarette smoke is
     under the control of the operators, during sampling times in
     particular, and hence should not be a consideration."  
                   Smoking is common in our mines, and we do not
     believe that miners will refrain from smoking just because
     they are asked to stop for a day.  With all the information
     available today on the health hazards associated with
     smoking, don't you think that if people could stop smoking
     if they could?  Our mines are not typically staffed with the
     police force that would be necessary to ensure miners do not
     smoke.  Nor will MSHA's typical sample observation practices
     be sufficient to ensure that the miners they sample stay out
     of environments contaminated with cigarette smoke.
                   (Slide.)
                   For this section of the study, area samples were
     placed in line-out rooms and smoking rooms during normal
     conditions.  Again, there was no source of DPM present, and
     these are conditions seen every day at the mine site.
                   (Slide.)
                   Our results indicate that not only must the
     sampled miner refrain from smoking, he or she must
     completely avoid any second-hand cigarette smoke.  Geometric
     means presented here are substantially greater than zero at
     the 95 percent confidence level, indicating a strong
     interference.
                   One-quarter of our samples exceeded 27,000
     micrograms per cubic meter, somewhere in here, which
     indicates a particularly strong interference from ambient
     levels of tobacco smoke.  As you can see, it doesn't take
     much cigarette smoke to interfere significantly with the
     proposed method.  Because of this, not only would the
     individual being sampled have to refrain from smoking, but
     nearly everyone in the whole mine would not be able to
     smoke.  It would not take much second-hand smoke to have
     quite an impact on the DPM sample.
                   Again, let's take a look at these ranges.  They go
     up to quite high levels.  This was just a line-out room
     where miners were getting lined out for the day and smoking.
                   (Slide.)
                   In summary, ambient levels of cigarette smoke in
     the absence of any source of DPM result in extremely high
     measurements of airborne carbon well above MSHA's proposed
     exposure limit.
                   This renders the sampling proposal not feasible
     and we are also concerned that this will result in erroneous
     enforcement actions.
                   (Slide.)
                   Our next major issue, after contamination of
     samples from non-diesel airborne carbon, regards problems
     with the analysis of the samples.
                   This slide presents an overview of our concerns,
     and we'll discuss each in detail.
                   First, we found serious inconsistencies in
     reported results when samples were split and analyzed by
     different laboratories.  We found inconsistencies in all
     three measures of airborne carbon:  EC, OC, and TC.
                   We then looked at blank samples from pooled
     samples and found a wide range of background carbon.  This
     will result in problems with blank correction, which is a
     standard laboratory practice intended to account for
     background contamination on sample media and analysis.  The
     end result will be inaccurate measurements of total carbon.
                   (Slide.)
                   Our first test regarding analytical deficiencies
     looked at how one analytical lab compared to the other.
                   With any type of industrial hygiene exposure
     monitoring, accurate analysis of samples is crucial.  This
     same concept applies here.
                   MSHA should be well aware of the consequences of
     substandard analysis of air samples.  As a result of the
     well known ASARCO dust case, the courts forced MSHA to
     vacate numerous health citations throughout the mining
     industry for dust as well as other analyses.
                   The labs we involved in our study are well
     established and have a good reputation in the industrial
     hygiene field.  And even these labs had difficulty analyzing
     our samples accurately.
                   The wide variability represented by our samples,
     or renders the sampling method not technically feasible.
                   (Slide.)
                   Samples in this study were sent to Lab A for
     analysis.  And Lab A took a punch from each sample and
     analyzed it.  That leaves a large portion of the sample
     filter unused, and this is standard practice according to
     NIOSH 5040 method.
                   Lab A then repackaged the samples and sent them to
     Lab B for a second analysis.  Lab B took a second punch from
     the filters and analyzed it.  And then both labs reported
     results without knowing the result of the other lab's
     analysis.
                   The results reported here for the same sample by
     the two labs are consistently different.  This difference is
     much greater than the variability presented by within-lab
     analysis of duplicate punches form the same sample filter.
                   (Slide.)
                   This table summarizes the differences we observed
     between the two labs.  Two results were reported for each
     sample, one from each lab.  The results were compared to
     each other by taking the ratio of Lab A's result to Lab B's
     result, where a ration of 1.0 would indicate that the
     results were equal.  Ratios greater than one indicate that
     Lab A reported higher results than Lab B, and ratios less
     than one indicated that Lab A was lower than B.  For
     example, if Lab A reported a total carbon result of 200
     micrograms per cubic meter, and Lab B reported a result of
     160 micrograms per cubic meter from the same sample, the
     ratio would be 200 divided by 160, or 1.25.
                   The mean ratios presented here for each measure of
     airborne carbon are significantly different than 1.0 with a
     95 percent confidence level -- this column right here --
     indicating that the labs report consistently different
     results from the same sample, even when considering total
     carbon.  So mean ratio of total carbon is 0.93 or seven
     percent different, overall samples.  When looking at the
     individual components of elemental carbon and organic carbon
     individually, the difference is even greater:  12 percent
     and 26 percent different.
                   Now, a periodic interlab deviation of seven
     percent may or may not be unreasonable.  However, we
     observed consistent deviation across -- averaged across 55
     separate samples.  Individual measurements here varied by as
     much as 72 percent for total carbon.
                   The interlaboratory differences demonstrated here
     indicate that the method is not reliable in measuring carbon
     deposited on a filter.  This compounds the problems I
     discussed earlier, that the carbon on the filter isn't even
     all diesel particulate matter.  These deficiencies taken
     together make the method unreliable as a measure of DPM.
                   (Slide.)
                   These next slides show the actual differences we
     observed in the sampling.  The bars indicate the ratio of
     Lab A to Lab B, the individual bars presented here.  The
     dashed black line indicates the 1 to 1 level.  That's where
     the bars would be if the labs had reported the same result
     from the same filter -- this line right here.  The solid
     blue line indicates the average of the ratios, and that's
     this one right here.   Here you can see that the average, as
     well as the majority of the individual ratios, is clearly
     above the 1 to 1 line.  Again, the 1 to 1 line here, the
     individual ratios, most of them are above 1 to 1, and the
     average is well above 1 to 1.
                   Lab A consistently reported organic carbon results
     that are higher than Lab B.
                   (Slide.)
                   Using the same format I described in the previous
     slide, you can see that the elemental carbon averages, as
     well as the majority of the individual ratios, is clearly
     below the 1 to 1 line, and here's the 1 to 1 line, here's
     the average of our individual samples, and our individual
     samples.  Almost all of the individual samples were well
     below 1 to 1, and the average is well below 1 to 1.
                   So Lab A consistently reported elemental carbon
     results that are lower than Lab B.  However, while Lab A is
     higher for organic carbon and lower for elemental carbon,
     the differences do not balance out to make the total carbon
     ratios equal.  Again, the interlab total carbon measurements
     were consistently biased, varying up to 72 percent.
                   (Slide.)
                   Our study has demonstrated that different
     analytical laboratories arrive at consistently different
     results when analyzing the sam sample.
                   Without a method to accurately analyze airborne
     carbon samples, MSHA cannot correctly enforce any exposure
     limit on diesel particulate matter.
                   (Slide.)
                   Industrial hygiene air sampling methods typically
     require collection of blank samples along with the field
     samples to measure airborne contaminants.  Blank samples are
     sample media that are handled similar to the field samples,
     but that have had no air drawn through them.  Blank samples
     are used to determine background contaminant levels, in this
     case carbon, coming from the sample collection, media, and
     analysis.
                   Once the lab analyst determines the amount of
     background carbon on the sample, he or she can then subtract
     that background from the field samples and provide accurate
     results.
                   The pooled blank samples collected in this study
     have shown a very wide range of background carbon levels. 
     Accurate blank correction will be impossible as a result.
                   (Slide.)
                   With each set of field samples, we also submitted
     blank samples to the analytical laboratory.
                   Blank sample results are typically reported as
     micrograms of carbon per sample.  To make the results
     meaningful with respect to MSHA's proposed exposure limit,
     we determined what the air measurement would have been had
     that sample filter been used to sample clean air using the
     minimum sample volume allowed by MSHA, which is 142 liters.
                   Our test indicated that a wide variability in
     background carbon levels in this sampling and analytical
     method leaves it unreliable as a predictor of DPM levels and
     thereafter not technically feasible.
                   (Slide.)
                   To demonstrate this, I'll again go through another
     sample.  The lab reported that they detected 15.9 micrograms
     of total carbon on one of our blank samples. This is shown
     right here in blue and again here in the calculation.  This
     sample was collected properly, and the media was within its
     shelf life.  And this particular sample was collected in a
     clean, a clean office environment.
                   If that sample had been used to collect a sample
     in carbon-free air at the minimum sample volume allowed by
     the method, that's shown here in red, .142 cubic meters --
     sorry, 142 liters, the result would have shown 112
     micrograms of total carbon per cubic meter.
                   The analyst would subtract this background carbon
     mass from the field samples included with the blank.
                   (Slide.)
                   As this table demonstrates, there is a wide
     variability in measurements of carbon on supposedly carbon-
     free blank samples.  While the mere presence of background
     carbon on the media and analytical process may not present a
     problem, as that background could be subtracted from the
     field samples, the wide variability in this background does
     present a problem.
                   The background varies widely, and is skewed toward
     higher background levels from basically zero up to 170
     micrograms per cubic meter, average being not in the middle
     but shifted to the left.  Equivalent air concentrations on
     blank samples ranged from undetectable to 170 micrograms per
     cubic meter, average of 57.
                   This is variation in addition to the other
     deficiencies I've already discussed previously.
                   (Slide.)
                   Because of the wide variation in background carbon
     levels in the sample media and analysis, MSHA cannot
     accurately blank-correct air samples for total carbon.
                   Without a method to accurately measure DPM, MSHA
     cannot feasibly enforce any exposure limit on it accurately.
                   (Slide.)
                   Our third concern, after interferences in airborne
     carbon and analytical deficiencies, is the way MSHA proposes
     to collect their samples.
                   We intend to add substantial information to the
     record which will show that estimating exposure based on
     area samples and on single samples is not valid and is not
     standard industrial hygiene practice.  Dr. Dave Drown
     intends to expand on this issue after this presentation.
                   To help make this point, we conducted a test to
     indicate just how widely the air concentrations in
     underground metal/nonmetal mines can vary over distances of
     only 10 to 15 feet in the same air stream.
                   (Slide.)
                   To conduct this test, we placed pairs of sample
     trains, as described in NIOSH 5040, in areas of the mine
     where miners normally work or travel.  One of the pair was
     located on one rib and the other on the opposite rib, across
     only 10 to 15 feet of open drift.  Both sample trains were
     supposedly sampling the same air and the same activities.
                   The locations where the samples were placed were
     typical of everyday conditions, locations were not selected
     to vive the greatest variability between the pairs.
                   Tests were conducted with both cyclone and open-
     faced sample trains, and then we considered those two
     separate tests differently.
                   (Slide.)
                   This table summarizes the differences that we
     observed between the paired samples.  The ratios presented
     here indicate the higher sample of the pair divided by the
     lower in the pair.  A ratio of 1.0 would indicate that the
     samples were equal, and a ratio above one indicates that the
     samples are not equal.
                   For example, if the left rib result was 200
     micrograms of total carbon per cubic meter and the right rib
     result was 160, the ratio would be 1.25.  
                   On average, open-faced samples were 12 percent
     different, open-face were 12 percent different, and the
     cyclone tests were about 10 percent different when they were
     supposedly sampling the same air in the same area.  These
     average ratios are substantially different from 1.0 at the
     95 percent confidence level.  And we observed this high
     variability between sample pairs when looking at the average
     of a large number of samples.  Single sample pairs differed
     by as much as 80 percent.  So even when averaging a large
     number of samples, we find 12 and 10 percent difference. 
     When looking at just one sample pair, the ratios were
     actually quite a bit higher, up to 74 and 80 percent.
                   We believe that comparing personal samples to area
     samples will result in far greater variability.  That's due
     to the miners' work practices and their tendency to move
     from area to area.  We intend to add additional information
     to the record that will further support this by the end of
     the comment period.
                   (Slide.)
                   Single samples and area samples do not accurately
     access a miner's exposure to a contaminate, and therefore,
     they bear no relevance to his or her risk.
                   A difference of only 10 to 15 feet to the left or
     right in the same drift can mean the difference between
     compliance and noncompliance, and neither one is an accurate
     measure of the miners' exposure.  Single area measurements
     are meaningless.
                   MSHA should not rely on such a flawed sampling
     strategy to enforce their proposed rule.  They may as well
     be throwing darts at a target blindfolded.
                   (Slide.)
                   We have confirmed serious problems with MSHA's
     proposed sampling and analytical methods.  Specifically,
     these are:
                   Interfering airborne carbon, including rock dust,
     oil mist, and cigarette smoke.
                   Analytical deficiencies, including consistent
     differences between labs analyzing the same samples, and
     high variability in background carbon levels.
                   Reliance on single samples and area samples to
     estimate miners' exposure.  These samples do not accurately
     measure a miner's exposure.
                   (Slide.)
                   We have demonstrated a number of deficiencies in
     MSHA's proposed sampling and analytical methods.  Taken
     alone, each renders the method inaccurate, unreliable and
     not technically feasible.
                   We strongly suggest that MSHA fund a peer review
     feasibility and validation study to create a sampling
     mechanism that is accurate and appropriate for regulatory
     use.
                   (Slide.)
                   MSHA states in the preamble to the proposed coal
     rule that there is no reliable test for diesel particulate
     matter in coal mines because of the presence of organic
     compounds that may be mistaken for DPM.
                   In the preamble to the proposed metal/nonmetal
     rule, MSHA states, "For a method to be used for compliance
     purposes, it must be able to distinguish dpm from other
     particles present in various mines, be accurate at the
     concentrations to be measured, and consistently measure dpm
     regardless of the mix or condition of the equipment in the
     mine."
                   In other words, specific, accurate and consistent. 
     It meets none of these criteria.  We have shown that MSHA
     has not met their own criteria for a sampling and analytical
     method.  MSHA has not provided a feasible method to measure
     exposures to DPM in underground metal and nonmetal mines.
                   (Slide.)
                   We've shown that the same fundamental problems
     MSHA identified in the coal sector exist in the
     metal/nonmetal sector.  We have also identified that more
     complex -- that more complex problems with elemental carbon
     exist in metal/nonmetal mines.
                   Only one conclusion can be drawn:  MSHA has no
     reliable method to test for diesel particulate matter in
     underground metal and nonmetal mines.
                   Again, thank you for the opportunity to share this
     information.  Our next panel member, Dr. Dave Drown, of Utah
     State University, will address some related issues. 
                   MR. TOMB:  Are you going to use the slide
     projector?  
                   MR. DROWN:  No.  
                   (Applause.)
                   MR. DROWN:  My name is David Drown, spelled 
     D-A-V-I-D, D as in "dog," R-O-W-N.  I am representing today
     Nevada Mining Association and National Mining Association
     with regard to my comments to the panel.
                   Thank you Mr. Chairman and panel members for this
     opportunity to insert my comments into this rulemaking
     process concerning the exposure of underground metal and
     nonmetal miners to diesel particulate matter.  
                   My name is David Drown.  My credentials include a
     Bachelor's Degree in biology from the University of
     Wisconsin-Superior, an M.S. Degree in aquatic ecology, from
     Michigan Technological University, and a Master of Public
     Health and Ph.D. Degree in environmental health from the
     University of Minnesota.
                   I am certified by the American Board of Industrial
     Hygiene in the comprehensive practice of industrial hygiene
     and have been since 1980.  I am currently a professor and
     director of the Utah State University Industrial Hygiene
     Program and have been on the faculty of that university for
     20 years.  
                   Utah State University supports one of the only
     five ABET accredited bachelor degree programs in industrial
     hygiene in the United States.  I am happy to say that there
     are graduates of that program here today who are making
     inroads into the practice of industrial hygiene in mining; a
     relatively new venture for the mining industry.  These young
     professionals have not been schooled in old theory but are
     current with regard to the modern approach to the practice
     of industrial hygiene.
                   My interest and involvement in mining stems from
     my days at Michigan Tech University during the late 1960s. 
     And I am here today to address topics concerning the
     practice of industrial hygiene in underground mining as it
     relates to this proposed new rule.
                   I must first say that I am delighted to see
     reference to "generally accepted industrial hygiene
     practice" in the proposed rule.  As I worked through the
     document and related materials, however, I found that the
     reference to "generally accepted industrial hygiene
     practice" is not consistent throughout and perhaps provides
     only lip services from those who drafted the document.
                   This presentation does not serve as an
     introduction to industrial hygiene since the proposed rule
     is far from elementary in scope.  However, the basic
     approach of industrial hygiene includes the anticipation,
     recognition, evaluation, and control of workplace hazards,
     exactly what the proposed rule deals with.  The mining
     industry, both regulators and operators, has long
     concentrated on the obvious physical hazards of mining and,
     for the most part, has put health concerns on the back
     burner with few exceptions.
                   I would like to address two concerns with regard
     to the proposed rule that relate to "generally accepted
     industrial hygiene practice."  First, I am very supportive
     of the studies conducted and reported by members of the
     Nevada Mining Association and the National Mining
     Association concerning the applicability of NIOSH Method
     5040 to the measurement of diesel particulate matter, DPM,
     in underground metal and nonmetal mines.
                   The findings that Mr. Christopher Rose spoke to
     have been well thought out and developed and have been
     carried out in sufficient detail to statistically address
     the hypotheses suggested.  My confidence in mr. Rose's
     thoroughness and accuracy goes unquestioned.  
                   Secondly, I want to talk about the assessment of
     worker exposures to DPM and other materials, for that
     matter, with regard to "generally accepted industrial
     hygiene practices;' and specifically, compliance-based
     versus comprehensive monitoring of mine exposure conditions.
                   The study results presented at this hearing are
     more than conclusive concerning the measurement of DPM in
     underground metal and nonmetal mines.  As the data suggest,
     NIOSH Method 5040 does not adequately discriminate between
     DPM and other organically based matter in samples collected
     from exposure areas of the underground metal and nonmetal
     mines studied.  If there is to be enforcement of a standard,
     then a reliable, unquestionable method of sampling and
     analysis must be established.  This has not been
     accomplished and, therefore, cannot be considered as "good
     industrial hygiene practice" or, for that matter, good
     regulatory practice.
                   Field and laboratory studies conducted by NVMA and
     NMA members have shown the following:
                   Number one, non-diesel sources of airborne carbon
     in underground metal and nonmetal mines do, indeed, include
     materials other than oil mist and cigarette smoke.  As the
     studies indicate, carbon-bearing ores contribute significant
     positive bias to DPM exposure estimates as a result of using
     the current NIOSH 5040 method.
                   The use of cyclone, pre-selective particle
     sampling methods will not totally eliminate the interference
     of airborne carbon as the 5040 method suggests.  The method
     can, indeed, indicate an exposure without any DPM present. 
     Consequently, this method in its current state cannot serve
     as a reliable referee method.
                   Item three:  Oil mist from jacklegs and other
     mining equipment, although within MSHA exposure limits for
     oil mist, will confound the analytical results by giving
     false positives for DPM.
                   Four, cigarette smoke, even in areas devoid of
     DPM, shows up as a significant source of airborne carbon. 
     This indicates another flaw in the 5040 method.
                   Number five, reliable, accredited laboratories
     have great difficulty in determining DPM concentrations. 
     There is very poor interlaboratory agreement where the labs
     process split samples.  Actually, there are few laboratories
     capable of using the NIOSH 5040 method.
                   Item six, the bottom line, in summary, of the
     studies conducted by NVMA and NMA members, is that MSHA
     Method 5040 is seriously flawed and is not usable, as
     currently proposed, for accurate determination of diesel
     particulate in underground metal and nonmetal mines.
                   The extent of miner exposures to offending
     materials in mines has long been a major concern of
     operators, regulators, labor unions, and occupational health
     and safety professionals, not to mention the miners
     themselves.  In that regard, the MSHA publication,
     "Practical Ways to Reduce Exposure to Diesel Exhaust in
     Mining -- a Toolbox" is replete with excellent suggestions
     from knowledgeable individuals who address this very issue. 
     Miners are, in fact, the core of any successful mining
     venture and protection of that valuable resource brings us
     here today.
                   The determination of the extent of miner exposure
     to health hazards has traditionally followed a compliance-
     based approach.  This approach works well for physical
     safety hazards where the problems and subsequent solutions
     are, for the most part, obvious and perhaps stem from simple
     oversight of the operator or miner.  
                   Health exposures, on the other hand, are much less
     obvious and in many cases not obvious at all until the after
     effects of exposure become apparent.  In that regard, and
     with the health of the miner and economic consideration of
     the operator as key factors, the compliance-based exposure
     approach to miner exposure assessment has become archaic and
     must yield to a more comprehensive exposure assessment
     approach.  This current, comprehensive exposure assessment
     rationale is certainly fitting for the complete evaluation
     of miner exposures to DPM.  I'll briefly discuss these two
     approaches to exposure assessment as they relate to the
     proposed rule.
                   A compliance-based monitoring:  The compliance-
     based monitoring approach to miner exposure assessment has
     long been the case. This is also called "worst case"
     sampling which focuses on the maximum risk employee or
     employees to determine whether exposures are above or below
     established limits during a given day or given shift.  This
     is the simple approach, which is followed by regulatory
     enforcers, and can lead to a de facto compliance decision
     based on only one or a few measurements.  Such measurements
     are virtually impossible to extrapolate to other unsampled
     days or shifts.  What might be worst-case exposure one day
     might be average exposure the next.
                   In fact, in many cases it will be impossible to
     determine a worst-case exposure for the sampling day proper
     since a group of miners will seemingly be doing the same
     task but actually experiencing individual exposures that may
     be worst case or not.
                   Such a subjective approach to selecting the
     appropriate miner to be sampled implies that random sampling
     is not utilized.  Thus, little or no confidence can be
     associated with the results of that sampling effort to be
     representative of the exposure group in question.  Also, if
     these measurements indicate exposure below the standard
     based on 95 percent confidence, then the situation is
     acceptable.  This approach provides little insight to the
     day-to-day variation in exposure levels and it's not
     amenable to the development of exposure histories for
     individual miners or exposure groups that accurately reflect
     exposure and associated health risk over time.
                   Regulators, due to simplicity of implementation,
     have long used the maximum risk approach.  It is relatively
     easy for an inspector, with some degree of mining
     experience, to place sampling device on a miner, piece of
     equipment, or in an area of the mine suspected of higher
     allowable exposure.  This method of sampling provides
     definitive results for the period of the sample collection
     but is most likely to be very nonrepresentative of the
     actual exposure conditions over time.
                   Since occupational exposure limits, such as PELs
     and TLVs, are developed from scientific data based on
     lifetime exposures, the simple, single sample compliance
     approach is seriously flawed and can result in over
     regulation of the operator, as well as questionable
     protection of the miner.
                   You might argue that the mine safety and health
     inspector has a great deal of work to accomplish during a
     health and safety inspection and cannot conduct extensive
     surveys to determine compliance or noncompliance.  Granted
     this might be the case, but it is an invalid reason when
     "generally accepted industrial hygiene practice" is
     considered.  A single, simple -- a single sample collected
     during a single shift does not establish the basis for
     compliance or noncompliance according to "generally accepted
     industrial hygiene practice."  Nor does it provide adequate
     information needed to protect the miner and allow the mine
     operator to economically survive.
                   The studies reported here, as well as those
     reported throughout the literature, document the variability
     of sampling results based on sample location and sampler
     positioning.  The NVMA/NMA data show significant differences
     in airborne concentrations of contracting of carbon from one
     side of a drift to the other.  No obvious visual cues for
     worst-case sample positioning were apparent.  This
     variability in itself could provide erroneous information,
     which could lead to over regulation of the operator or,
     perhaps, under protection of the miner.  Cross-rib sample
     pairs, representing spacing of only 15 feet, provided
     significantly different results between the sample
     measurements in terms of airborne carbon.
                   Such differences between sampling results
     collected in similar areas or personal samples collected
     side-by-side, for that matter, are replete in the
     literature.  There are significant environmental and work
     practice factors that greatly influence the efficiency and
     effectiveness of sample collection from one point to
     another.  This is of particular importance when the
     collection of particulate materials is involved.
                   Consequently, the single sample compliance
     approach outlined in this proposed rule will do little or
     nothing to protect the health of the miner.  This archaic
     approach of compliance-based sampling is not reliable since
     it does not address the short-term or long-term health
     considerations of the miner nor does it qualify as
     "generally accepted industrial hygiene practice."  Certainly
     the importance of miner health protection and operator
     competitiveness cannot be decided by a single sample
     collected on a single day.
                   Comprehensive exposure assessment:  The current
     comprehensive exposure assessment approach to workplace
     characterization is considered state-of-the-art, and I
     believe miners deserve state-of-the-art attention. 
     Comprehensive exposure assessment emphasizes the
     characterization of all exposures, including variability,
     for all workers on all days.  This approach to exposure
     monitoring provides insight to conditions on unmeasured days
     and unmeasured miners in similar exposure groups on exposure
     measured days.
                   In addition to assuring compliance with the
     standards, this strategy provides understanding of the day-
     to-day expectations of exposure groups and is extremely
     useful in determining actual exposure risk.  Certainly this
     comprehensive approach to miner health protection cannot be
     decided by collection of a single sample on a single day.
                   It should be emphasized again that occupational
     exposure limits are expressed as time-weighted average
     exposure levels -- PELs and TLVs -- that take lifetime
     exposure into consideration as a most important factor.  In
     that regard, day-to-day variations of exposure levels are
     expected.  Essentially, a comprehensive approach to
     assessment of occupational exposure better positions the
     operator and regulator to understand the risks associated
     with the exposure, and better positions the operator to
     manage the risks.
                   Summary and suggestions:  It is that a critique is
     not of any use without suggestions or recommendations.  This
     has been my philosophy for 25 years of university teaching. 
     I believe that the "Diesel Toolbox," developed by MSHA, is
     an excellent approach to the comprehensive management and
     control of DPM in underground mines.  Contained in that
     document are numerous examples provided by mine operators,
     miners, labor unions, equipment manufacturers, and
     consultants, of different ways to control emissions from
     diesel equipment in mines.  Many of these approaches and
     methods can definitely be considered "generally accepted
     industrial hygiene practice."
                   In summary, I am of the opinion that this rule, as
     proposed, is premature in light of the definitive health
     effects data -- NIOSH/NCI ongoing study -- and reliable
     sampling and analytical procedures.  I am also of the
     opinion that you do not install an emission control device
     on a piece of mining equipment just because it can be done. 
     The necessity must first be determined and based upon miner
     health effects of exposure as well as solid scientific and
     engineering principles including risk assessment and
     cost/benefit analysis.  
                   I feel that the continuing use of the "Diesel
     Toolbox" for purposes of minimizing DPM in underground metal
     and nonmetal mines is an excellent starting point and the
     proper choice to assure the health of underground metal and
     nonmetal miners using "generally accepted industrial hygiene
     practice."  This approach will allow further study of
     possible problems associated with exposure to DPM and will
     allow the "Toolbox" concept to be effectively tested and
     perhaps grow into a recognized, useful approach to the
     control of occupational exposures.
                   Thank you.  
                   MR. TOMB:  Thank you, Dr. Drown.  
                   MR. DROWN:  I'd like to next introduce Mr. John
     Head, principal mining engineer with Harding Lawson
     Associates.
                   MR. HEAD:  My presentation will be by slides.
                   (Slide.)
                   Good morning.  My name is John Head.  I work with
     Harding Lawson Associates.  
                   If we can have the next slide, please.
                   (Slide.)
                   My comments today are going to be on the
     preliminary regulatory economic analysis of MSHA's proposed
     rule on diesel particulate matter exposure in underground
     metal and nonmetal mines.
                   Next slide, please.
                   (Slide.)
                   This review of MSHA's preliminary regulatory
     economic analysis, the PREA, was undertaken by Harding
     Lawson Associates under the direction of the National Mining
     Association with contributions from the National Stone
     Association, the Salt Institute, and the MARG Diesel
     Coalition.  
                   (Slide.)
                   Describe the review process:  The first step was
     to survey all underground metal and nonmetal mines in the
     U.S. to determine their diesel equipment usage, diesel
     engine characteristics, horsepower, and so on, and age,
     ventilation characteristics, specifically ventilation flows
     through the mine, diesel fuel use and costs, and the
     unemployment -- the unemployment, forgive me -- the
     employment at each of the mines.
                   (Slide.)
                   The second process in the review involved
     discussions with mine operators and their associations,
     mining equipment manufacturers and suppliers, diesel engine
     manufacturers, exhaust after-treatment manufacturers, and
     other interested parties like the Canadian Diesel Exhaust
     Emissions Project, or DEEP.  
                   We also conducted a review of published materials,
     most of which are available on the internet.
                   Next one.
                   (Slide.)
                   The discussions focused on costs of replacement
     engines, filters and catalytic converters, ventilation
     upgrades, and other issues covered in the economic analysis.
                   I will now go on to discuss the analysis.  This is
     not consistent with the handout.  You need to go to another
     presentation.  
                   (Pause.)
                   Forgive me, gentlemen.
                   (Pause.)
                   That's the trouble with computers.  You tend to
     rely on them and regard them as infallible and obviously
     they are not.  This presentation will resume with one that
     you have in front of you.
                   (Slide)
                   The first step of the analysis was to computerize
     the survey data, input the cost parameters into a compliance
     cost model, and then develop annualized compliance costs
     using a model based on the format in the economic analysis
     that MSHA prepared.  Run through that model to calculate
     initial compliance costs based on total costs per year,
     which includes both the annualized and the annual costs per
     year.  
                   The second analysis step, it's important to
     remember that this analysis focused merely on the three
     standards, 57.5060, subsections (a) and (b), which deal with
     the diesel particulate matter exposure limits, and the
     engine replacements, which are 5067.  The compliance of
     those three standards represents 96 percent of the economic
     analysis table of total compliance costs.  About 18.5
     million dollars for DPM and engine standards out of a total
     annual compliance cost of 19.2.
                   (Slide.)
                   Factors that we have not included in this
     preliminary cost estimate include things such as lost
     productivity, equipment down time during vehicle upgrades
     and other compliance efforts, manpower needs, both for
     protection and maintenance, training and recordkeeping
     costs, equipment resale costs, unusual one-time expenditures
     such as a new service shop for increased ventilation,
     maintenance costs associated with increased ventilation
     flows and pressures.
                   (Slide.)
                   Going on to the conclusion:  MSHA underestimated
     the number of diesel units in use in underground metal and
     nonmetal mines.  There are more diesel engines in use than
     shown in the economic analysis, and they are larger diesel
     engines in use than MSHA estimated.  
                   (Slide.)
                   The second conclusion:  MSHA's assumption of
     engine costs did not account for the difficulties of
     converting old equipment with old engines to new, clean-
     burning engines.  The engineering and installation costs
     will be considerable:  To allow for different engine
     configurations, cooling and electrical control systems,
     transmissions, drive trains and so on.  
                   (Slide.)
                   The third conclusion:  MSHA did not take into
     account the difficulties most underground mines will face in
     upgrading their ventilation systems.  
                   Significant increases in ventilation quantities at
     many underground mines will involve more than just a new fan
     or a larger fan motor.  
                   (Slide.)
                   Going on to the preliminary assumptions and some
     of the numbers:  The number of diesel units in service in
     underground metal and nonmetal mines estimated in the
     economic analysis cited a title of 4,087.  Those larger than
     150 horsepower, 1,243.  
                   Our survey almost reached MSHA's limit of total
     numbers at 3,952.  About two-thirds of mines responding.  If
     this is factored up with that ratio, you get to just one
     unit shy of 6,100.
                   Those larger than 150 horsepower, the actual
     responses from about two-thirds of the mines polled did
     significant exceed MSHA's number at 1,457.  If that's
     factored up, it's almost twice the number that MSHA assumed. 
                   (Slide.)
                   The next stage of the preliminary assumptions is
     the cost of engines.  What you see in front of you is the
     estimates in the economic analysis;  $21,000 for large
     engines, that's the plus 150 horsepower; 12,500 for smaller
     ones, that's less than 150; and $2,500 for the incremental
     cost for those engines bearing MSHA's approval.  There is no
     additional cost in the economic analysis prepared by MSHA
     associated with engine conversion. 
                   (Slide.)
                   These are the figures that we developed for the
     replacement cost of engines:  $27,500 for the large engines;
     15,000 for the smaller engines.  The incremental costs
     simply for the approval we accepted at $2,500.  However, and
     this is the big change, there will be substantial additional
     costs associated with new engine installation.  In the
     analysis, on average we have applied $65,000 for the plus
     150 horsepower engines, and based on the age and size of the
     fleet, we have estimated that 75 percent of those large
     units will need the reengineered engines.  
                   Thirty thousand -- I'm sorry, stay with that one. 
     Thirty thousand dollars is the cost of a replacement
     reengineered new engine in a smaller unit, that's the minus
     150 horsepower, and two-thirds of the minus 150 horsepower
     engines that are to be replaced will need this more
     expensive reengineered replacement new engine.
                   Number three, please.
                   (Slide.)
                   Cost of filters:  In the economic analysis,
     $10,000 and $5,000 were the assumed cost of filters for
     large and small engines with one-year life and 10 percent
     annual maintenance without regard to application.
                   We have increased the cost of the large filter to
     12,500, stayed with the $5,000 figure for the smaller
     filter.  There is significant questions in our mind as to
     whether the one-year life and the 10 percent annual
     maintenance fee is appropriate.  It's untested in the
     underground mining environment.  Particularly for those
     units that use three shifts a day, they can experience in
     excess of 5,000 hours per year.  
              But in this analysis we have stayed with the one-year
     life and the 10 percent maintenance figure.
                   (Slide.)
                   Going on to catalytic converters:  We have stayed
     with MSHA's assumptions of $1,000 for the installed cost of
     filter, one-year life -- I mean, catalytic converter, one-
     year life and zero maintenance.  However, there is some
     concern in our mind that the one-year life and zero
     maintenance is also unproven in this wide-scale application.
                   (Slide.)
                   Going on to vehicle cabs:  The economic analysis
     assumed $7,500 for cabs installed on equipment with both
     large and small engines, with a 10-year life of that cab and
     a 10 percent annual maintenance.  We feel that that cab cost
     is significantly understated and that a $20,000 installed
     cost for cabs on equipment that was not originally designed
     to have that cab installed is more appropriate.  
                   (Slide.)
                   Going on to the ventilation upgrades:  In MSHA's
     economic analysis a new fan was assumed to cost, an
     installed price of $230,000, $21,000 was the cost for a
     larger fan motor.  Forty-one mines need a new fan, 117 mines
     need a larger fan motor; almost a quarter of the mines have
     sufficient ventilation of the 203 mines cited in the
     economic analysis.
                   (Slide.)
                   Going on to the revised costs of ventilation
     upgrades:  We have stayed with the first two numbers of
     230,000 for the cost of a new fan, 21,000 for a larger fan
     motor.  However, we've inserted another cost of compliance
     with an upgraded ventilation system of $300,000.  This takes
     into account vent raises, control devices, add doors,
     stoppings and so on, auxiliary ventilation in the face line,
     things of that nature.  
                   We have estimated that 77 mines need a new fan, 98
     need a larger fan motor, and 63 mines need major
     improvements.  We don't believe that any mines presently
     have sufficient ventilation to dilute the DPM to the levels
     required by the standard.  
                   (Slide.)
                   MSHA's compliance strategy took a four-pronged
     approach.  Compliance with the interim and final DPM
     exposure limits can be achieved by installing new clean
     burning engines with low emissions; installing exhaust
     after-treatment systems, such as filters and catalytic
     converters; installing operator cabs and increasing
     ventilation flows.
                   (Slide.)
                   The compliance strategy that we have assumed in
     this preliminary analysis of the costs of compliance with
     the new rule, proposed rule, we have not changed the costs -
     - I'll start again.
                   We do not challenge the assumptions of compliance
     strategies, certain percentages of certain size motors, for
     example, that MSHA have used in their economic analysis. 
     There is an ongoing review of the technical feasibility of
     compliance with both the interim and final DPM exposure
     limits.  This review will determine if compliance can in
     fact be achieved by the methods claimed by MSHA.
                   (Slide.)
                   The final slide deals with the compliance costs. 
     MSHA's economic analysis, the total costs per year of
     compliance, including both annualized and annual costs, is
     19.2 million.  Our revised estimate of costs, total costs
     per year, just over three times that, 58.1 million.  These
     two streams of annual costs can be reduced to a present
     value.  MSHA's stream, taken over 10 years, result in a
     present value compliance cost of 134.8 million, and the
     revised compliance cost is $408 million.  
                   Thank you, gentlemen, and ladies.
                   MR. TOMB:  Thank you. 
                   I would like to thank NMA and the Nevada Mining
     Association for a very comprehensive presentation.  It looks
     like you have really done a lot of homework and put a lot of
     effort into it.  
                   I know the panel has questions relative to this,
     but why don't we take a 15-minute break, okay, and come back
     afterwards and address the questions at that time.  Okay?
                   Thank you very much.
                   (Whereupon, a recess was taken.)
                   MR. TOMB:  Please take your seats.  
                   I'm not sure the best way to handle this from the
     standpoint of whether to take one person at a time and ask
     questions or do you just want to ask questions of -- just
     ask questions.  Okay.
                   Do we have any questions?
                   (Laughter.)
                   George, would you like to start?
                   MR. SASEEN:  No, that's okay.  I'll pass.
                   MR. TOMB:  Okay.  Jon?
                   MR. KOGUT:  Yes.  I have a question for Mr. Rose. 
                   AUDIENCE:  We can't hear you.
                   MR. KOGUT:  Is that better?  
                   In the analysis that you described -- first of
     all, are you going to be making this study along with its
     protocol and the data available to us?
                   MR. ROSE:  We plan to put together a report and
     submit it with our final comments.  
                   MR. KOGUT:  So that will be prior to the close of
     the post-hearing --
                   MR. ROSE:  Prior to the close of the post-hearing
     comments.
                   MR. KOGUT:  -- comment period?
                   And will that report also include the data itself?
                   MR. ROSE:  To some extent, yes, it will.  As far
     as just a blanket, the actual -- you know, every -- as it
     was reported to us, we haven't really determined exactly how
     we're going to present that.  There will be meaning, either
     the data itself or some representation of it.  
                   MR. KOGUT:  Would you have any problem providing
     us with the body of data if we thought it would be helpful
     to us?  
                   MR. ROSE:  Well, I cold present that to the
     members who submitted that data.  Again, this was compiled
     from a number of companies, and I don't feel at this time
     that I can speak for them as far as whether or not they are
     willing to turn over actual numbers and identities and
     things.  I'll present that as a question to the
     participating members though.
                   MS. WESDOCK:  What about we also need copies of
     the survey, the economic analysis survey that was done
     regarding the equipment and the cost.  Do you see any
     problem with providing us with that for the rulemaking
     record?
                   I mean, we will really much like that.  
                   MR. HEAD:  The individual responses of each mine
     was collected on the basis of confidentiality, their age and
     specific types of equipment and some of the information on
     their ventilation and things of that nature.  It was given
     to us by the mines subject to confidentiality.  
                   We can make a summary of that data available to
     you, which summarizes into five different mine types: 
     limestone, lime, marble, gold and silver, base metals,
     evaporates including trona and salt, gypsum, and a
     miscellaneous category of various other mines that didn't
     fit into the other four categories.  We can make that
     summary data available.  It's broke out by both large and
     small mines, using the 20 employee cutoff.  That data, I
     think, is something we could submit for the record.
                   The responses of the individual mines, it would be
     almost impossible for me to go back, as Mr. Rose will do, to
     those mines and ask them to release their seal of
     confidentiality on that data that they submitted to us.
                   MR. FORD:  Excuse me.  
                   Does that summary data, would that add up to the
     numbers of pieces of equipment you have here?
                   MR. HEAD:  Yes, sir.  
                   MR. FORD:  Okay.  
                   MR. HEAD:  Yes.  
                   MR. FORD:  And is that summary data also broken
     down by horsepower?
                   MR. HEAD:  Yes, sir, with the two sizes of engines
     split out, the plus 150, minus 150 category.  In the summary
     data, we did not further subdivide the diesel equipment. 
     That's available in the individual tables that the mines
     submitted, but that is not in the summary.
                   MR. FORD:  Okay, so the summary data, the actual,
     the actual data we're talking now, we would have everything
     in that collection of data to substantiate the costs that
     you have here?
                   MR. HEAD:  I believe so.  Yes, sir.  
                   MR. FORD:  Okay.
                   MR. KOGUT:  Can I ask a question along that line?
     Are you going to ask the same question?  
                   MR. HEAD:  Oh, I was told -- I just speak on --
     there was an issue of data submittal, I think, that --
                   MR. KOGUT:  Yes.  Just to follow up my initial
     request for the data.  Since there were just 11 mines that
     these data were obtained from, if there is a problem of
     confidentiality, I think we don't need -- we wouldn't need
     to know the identity of the particular mines involved.  I
     think what we would like to see is just the raw data in
     order to do our own analysis, but we wouldn't need to have
     the names or identity of mines revealed, so perhaps that
     would help in getting us the data.
                   MR. ROSE:  Right.  Well, again, I'll present this
     to the participating companies.  And to the extent that I
     can, we will provide whatever data we can in the most useful
     form we can.  
                   MR. KOGUT:  And that -- 
                   MR. FORD:  Excuse me, Jon.
                   That will also go for the data to derive the cost. 
     If we could get the raw data, you could hide the mine name
     that would identify the mine.
                   MR. HEAD:  I understand, sir, but, again, let me
     get back to you on that.  I can't answer that at this stage. 
     
                   MR. FORD:  I guess all I'm saying is that's --
     that's what we would love to see, but we'll take what you
     can give us.
                   MR. HEAD:  I understand, and yes.  
                   MR. KOGUT:  The other -- well, one reason that I
     would like to be able to see the data, and perhaps you could
     provide this in the record in any case, is do you have
     information on the -- any information on the size
     distributions involved in -- or the size distributions of
     the carbonaceous, non-diesel carbonaceous material that you
     were measuring?  
                   MR. ROSE:  You mean the particle size distribution
     of whatever interferences we may have in mine?
                   MR. KOGUT:  Yes.  In other words, you said that
     many of these samples were collected at locations where ther
     was no possibility of there being any diesel particulate at
     all, so you were seeing fairly large, I guess, filter
     loadings or large amounts of carbonaceous material.  And
     what I'd like to know is whether you also compiled any
     information on the size distribution of that material.
                   MR. ROSE:  That's a very complicated question, and
     we will address that, to the extent we can, in our post-
     hearing comments.  Yeah, I can see how that would be
     valuable information, and we will address that.  
                   Yeah, we did do open-faced and cyclone sampling to
     some extent.  
                   MR. KOGUT:  We would be particularly interested, I
     think, in the amount of submicrometer material.
                   MR. ROSE:  Submicron.  Yeah, testing is ongoing
     also, so we will submit a final report and we'll address
     that issue, to the extent that we can.
                   MR. KOGUT:  And another related question is that
     in the interlaboratory comparison that you did in which you
     examined the results obtained on punches that were sent to
     the three different laboratories, you presented those
     results as ratios in results that you got for the different
     laboratories.  I think we would be particularly interested
     in knowing what the filter loadings were that were
     associated with the distribution of ratios that you got.
                   And, in general, I think in all the data analysis,
     in some of the preliminary work that we've done we've seen
     some strong correlations between measurement variability and
     filter loading.  So if you could -- you know, if you provide
     us with the raw data, of course, then we can look at that
     ourselves because we would have the -- I assume we would
     have the filter loadings expressed as micrograms per square
     centimeter of filter or some such measure.
                   But if you're not able to present us with the raw
     data in that kind of form, then I think we'd very much
     appreciate as part of the report that you -- that you give
     us an analysis that shows the relationship of the
     measurement uncertainty as it's related to the filter load.
                   MR. ROSE:  Okay, so for the interlab information,
     you'd like to see the filter loadings from Lab A as compared
     to Lab B, is that what you --
                   MR. KOGUT:  Well, the filter loadings presumably
     would be the same in the filter that you sent to both
     laboratories, but you presented some ratios in some of the,
     well, you had a minimum ratio and a maximum ratio or
     samples.  You know, it wasn't hugely large sample sizes, but
     nine or 10.  What I think would be important for us to know
     is how those different ratios that you observed relate to
     the filter loading in individual cases.  
                   And as I said, if you can provide us with the raw
     data itself, you know, then -- without identifying the
     mines, we could do that kind of analysis ourselves.
                   MR. ROSE:  Right.  
                   MR. TOMB:  I'd like to ask Mr. Rose.  Maybe I
     missed it, you presented a lot of information, but did you
     take any of your diesel particulate samples and tried to
     amass balance on those samples for the different
     constituents?
                   So that out of a given -- you gave a lot of bore
     analyses and they ranged all over the place, but how -- what
     fraction of those are going to affect the diesel measurement
     process?  I didn't see any data that was presented along
     those lines.
                   MR. ROSE:  Well, we don't believe at this time
     that you can -- if you take an in-mine sample, the
     analytical method, as MSHA proposes to use it, does not
     allow you to say this portion of your total carbon came from
     ore, this portion of your total carbon came from oil mist.
                   MR. TOMB:  How much did it affect the samples is
     what I'm asking.  Do you have any of that kind of
     information?  
                   MR. ROSE:  I guess I don't understand the
     question.
                   MR. TOMB:  Okay, the interference from other
     materials, from the ore body, what proportion of that
     affected a DP measurement?  
                   Maybe Dr. Brown can answer that.
                   MR. DROWN:  Drown.  
                   MR. TOMB:  I'm sorry.  What's your name?
                   MR. DROWN:  Drown.  
                   MR. TOMB:  Drown, D-R-O --
                   MR. DROWN:  If you're swimming and you sink.
                   MR. TOMB:  Okay.  Okay, thank you.
                   MR. DROWN:  Thank you.  
                   I'm not sure I'm clear with your question either.
                   MR. TOMB:  Okay.  From what I thought I understood
     from the presentation if I take a diesel particulate
     measurement some place in the mine, whether it's on a person
     or in the environment, that's going to be composed from what
     your presentation showed, or I guess those specific mines,
     that you're going to have a carbon content from the ore
     body, a carbon content from cigarette smoke, a carbon
     content from oil mist, and carbon content from diesel
     particulate, right?  
                   MR. ROSE:  That's right.
                   MR. TOMB:  Okay.  So I'm asking that when you made
     that measurement, the other cigarette smoking, the oil mist
     from the pneumatic drills, what impact did they have on that
     DP measurement?  
                   MR. ROSE:  There is not a way to determine that
     because none of the analytical methods will separate them
     out one from the other.
                   MR. TOMB:  Like sampling upstream from where you
     would sample with no diesel particulate compared to --
                   MR. ROSE:  Well, with the mixing, you'd have to
     have an amazingly large number of samples to really get any
     competence in doing something like that.
                   MR. TOMB:  You don't have that kind of
     information?
                   MR. ROSE:  Currently, I -- looking at the data
     right now, I don't believe we could make that kind of a
     measurement.  gain, that would be an incredibly complicated
     measurement to make where you could say upstream you've got
     this level and downstream with this piece of equipment
     you've got this level.  There are some papers out --
                   MR. TOMB:  Well, for instance, one sample, you
     have carbon-bearing rock, and you gave an example that it
     could be affected by 1600 micrograms per cubic meter, the
     measurement, all right.  So that would mean that you had an
     average exposure for an area or a mine.  Then you could
     conceivably have something like 3200 milligrams per cubic
     meter on that standpoint.  
                   MR. ROSE:  Which page in the presentation?
                   MR. TOMB:  I'm on page 15.  I just took the
     carbon-bearing rock example you presented.  
                   MR. ROSE:  That was -- that was an extrapolation. 
     The sample methods, there is no way you can differentiate
     between DPM and other airborne carbon.  And what this test
     did was we measured how much the rock will respond as DPM
     per gram.  And so we measured that and made extrapolations
     up.  Say if you had five milligrams per cubic meter of this
     --
                   MR. TOMB:  Yes, I realized what you did, but I'm
     just saying how -- my question is how does that impact the
     sample that's going to be collected?
                   MR. ROSE:  Well, if we had a background of --
                   MR. TOMB:  I mean, is it reasonable to say that
     the sample that you're going to collect, okay, for diesel
     would be 3200 then?
                   MR. ROSE:  We don't have any way of knowing how
     much diesel we're measuring because the method measures
     everything else, including diesel.  So we don't have
     anywhere to even start.
                   MR. TOMB:  Do you have any diesel measurements
     then?
                   MR. ROSE:  Well, I assume some of these
     measurements in the mine does include diesel, but the method
     does not allow us to say this part is diesel and this part
     isn't.  The method doesn't allow us to do that.  
                   You get a carbon measurement.
                   MR. TOMB:  Okay.  
                   MR. ROSE:  Some of that carbon is diesel.
                   MR. TOMB:  Which one of these represent diesel
     measurements say at the location of --
                   MR. ROSE:  We don't have anything that represents
     exclusively diesel because these interferences are found
     everywhere.  Everywhere we sample in the mine, there will be
     some unknown portion of dust, an unknown --
                   MR. TOMB:  Okay.
                   MR. ROSE:  -- portion of cigarettes, an unknown
     portion of oil mist, and an unknown portion of diesel, and
     the method does not allow us as currently proposed, the
     method does not allow us to say how much of any one of those
     components is contributing.  We get an overall measurement
     of carbon in the air from any number of different sources,
     including diesel and the other contaminants.
                   MR. KOGUT:  Except that you said that some of your
     measurements you'd know -- have no diesel?
                   MR. ROSE:  In some of the measurements, yeah,
     those were not typical in mine measurements.  There was one
     that was in-mine.  Rarely -- we might come across a heading
     where we've got a new vent raised, fresh air coming down to
     that heading and nothing upstream.  And in that case we were
     able to take some measurements, oil mist versus airborne
     carbon, and in that rare case we were able to say, okay, we
     feel confident there is no oil mist here, or I'm sorry,
     there is no diesel here.  That's rare.
                   The other ones were in a lab where that way we
     know there is no diesel.  It's an indoor lab on the surface
     someplace.  We did it in line-out rooms, and there is no
     diesel there.  So those were not in-mine conditions.  
                   The only samples we've got from in-mine conditions
     with the cyclone samples up front, and there we're saying
     the only way we know what isn't diesel is because diesel is
     not -- is going to be larger than respirable size, and so
     the difference between an open-faced measurement and a
     cyclone preselected measurement is not diesel.  That
     difference is not diesel.  Anything else, we don't know. 
     And even in that cyclone measurement, the respirable size
     interferences are still interfering with the cyclone
     measurement.  
                   Again, there is no way -- with this method as
     currently proposed, there is no way to say if I have a
     filter with carbon on it, X percent came from diesel, X
     percent came from dust, X percent came from oil mist, X
     percent came from cigarettes, et cetera.  
                   MR. KOGUT:  I'm sorry.  All right, I think in your
     written remarks you said that using the cyclone would not
     totally eliminate the interferences.  In the report that
     you're going to submit are you going to present an analysis
     of to what extend they do eliminate them?  
                   MR. ROSE:  To what extent they do eliminate them,
     again, if you don't know where the carbon on your filter
     came from, you can't know to what extent it's been changed. 
     We measure carbon here with an open face.  We measure carbon
     with a closed face. 
                   As far as what percent is on that cyclone pre-
     selected sample, there is no way to say where it came from. 
     Maybe I don't understand your question.  
                   MR. KOGUT:  Well, I was just responding to what
     you wrote here, which is that the use of the cyclone pre-
     selective particle sampling methods will not totally
     eliminate the interference if airborne carbons.
                   MR. ROSE:  We know we have respirable sized dust. 
     We know to some extent oil mist will have a respirable size
     component.  We know cigarette smoke is very much respirable
     sized.  Beyond that, it's hard to go any further.  
                   MR. TOMB:  For the samples that you used that were
     sent to the lab that had no diesel particulate on it, were
     labs asked to do an acid wash of the sample?
                   MR. ROSE:  At least in a number of them acid
     washes were done.  Beyond that, I'd have to review the data.
                   MR. TOMB:  Are those numbers separated out here as
     far as --
                   MR. ROSE:  I -- I'll have to look at that and --
                   MR. TOMB:  I think that's important.
                   MR. ROSE:  I can say that acid washing does not
     remove our interferences.  
                   MR. TOMB:  None of it?
                   MR. ROSE:  Well, as far as none, I don't know.  We
     haven't done that evaluation, but we know that in acid wash
     samples that we have taken there is still significant
     interference left after the acid wash.  
                   MR. TOMB:  We'd like -- can we see that?  That
     would be very important data for us?
                   MR. ROSE:  Yes.  I want to emphasize, and I tried
     to present this in the slides.
                   MR. TOMB:  Yes.
                   MR. ROSE:  The acid wash really goes for the
     carbonate fracture.  We have graphitic ore, bituminous ore,
     we have -- we did identify elemental carbon in oil mist, nd
     the acid wash is not going to go -- it's not going to remove
     the elemental fraction.
                   MR. TOMB:  Right.
                   MR. ROSE:  And it won't interfere, or it won't
     remove the organic fractions. 
                   So, yeah, I'll present that information.
                   MR. TOMB:  Okay.  Also, I think it's important on
     some -- I don't know how many, but it would be good if we
     could have some of the thermograms from the laboratories
     because where they do their ramp temperature change for
     elemental carbon could be different, so those are also some
     things we  would like to look at, if possible.
                   MR. ROSE:  The thermograms for the interlab
     testing?
                   MR. TOMB:  Right.  
                   Any other questions?
                   MR. CUSTER:  I'd like to direct my question to Dr.
     Drown.  In your statement you said essentially a
     comprehensive approach to assessment of occupational
     exposure better positions the operator and regulator to
     understand the risks associated with the exposure and better
     positions the operator -- you know, the operator to manage
     the risks.  So two questions that I have: 
                   Are you, in effect, recommending that MSHA or the
     operator or both conduct comprehensive exposure assessment?
                   MR. DROWN:  I think that would be -- yeah, I tend
     to imply that the agency as well as the operator, and maybe
     that the agency look with credibility on the operator's data
     that they do generate on a comprehensive basis.
                   MR. CUSTER:  Okay.  Second question:  Would you be
     willing to submit to us a recommended sampling strategy,
     including task-based or whatever strategy you would
     recommend that either or both parties would use?  
                   MR. DROWN:  That I'd have to refer to the Nevada
     Mining Association --
                   MR. CUSTER:  Sure.
                   MR. DROWN:  -- to see if that would be okay to do.
                   MR. CUSTER:  Sure.  Thank you.
                   MR. DROWN:  I might mention that my sampling
     strategy approach is simply textbook information, and
     recommended industrial hygiene practice, so it would be an
     easy task to do on your own or whoever was involved.
                   MR. CUSTER:  I understand that, but I was trying
     to get at what your point is, and I can't make the judgment
     that you have made that it looks like you would want MSHA to
     do quite a bit of sampling in order to sustain a violation
     of the standard.
                   MR. DROWN:  Well, certainly --
                   MR. CUSTER:  And obviously we don't have resources
     to do that.  
                   MR. DROWN:  I realize that, but I also realize
     that a single sample is meaningless.  
                   MR. HANEY:  Mr. Rose, your 11 mines, were they --
     what type of mining operations were they?  
                   MR. ROSE:  None of them were coal mines.
                   MR. HANEY:  Okay.  
                   MR. ROSE:  And beyond that I'd really -- you know,
     MSHA classifies mining as coal and metal/nonmetal.  All of
     these mines fit into the metal/nonmetal category.
                   MR. HANEY:  Okay.  You can't expand to say whether
     they were gold mines or limestone mines?
                   MR. ROSE:  We had a variety of products they
     produced.  You know, a lot of members were members of the
     Nevada Mining Association.
                   MR. HANEY:  Okay.
                   MR. ROSE:  But not all.  
                   MR. HANEY:  Did you have host rocks that were both
     salacious limestone and quartzite?
                   MR. ROSE:  I don't know -- with all the
     participating mines, I don't know what other minerals they
     may have had.
                   MR. HANEY:  Okay.  And when you sampled, how long
     were your samples collected for?
                   MR. ROSE:  That varied.
                   MR. HANEY:  Two hours?  Four hours?  Eight hours?
                   MR. ROSE:  Again, it varied depending on what type
     of measurement we were trying to make, whether we were
     testing just to determine does dust interfere.  You know,
     we're not trying to make claims of shift-weighted average
     measurements.  We're testing hypotheses which none of these
     had a whole lot to do with shift-weighted average.
                   MR. HANEY:  Okay.  You're familiar with the
     thermograms that are produced during the 5040 analysis?
                   MR. ROSE:  Somewhat.
                   MR. HANEY:  Somewhat.  And you've seen the
     carbonate peak that comes out distinctly different from the
     organic carbon and the elemental carbon peak?  
                   MR. ROSE:  Yes.  
                   MR. HANEY:  And have you -- have the labs that you
     sent the samples to integrated that peak out?  
                   MR. ROSE:  Well, we talked about this a bit with
     the acid washing, and I know specifically of at least a few
     samples where -- and the fact that I know specifically of a
     few doesn't mean there are a lot.  I just remember reviewing
     at least a few of them where they attempted to wash it out
     and it didn't come out.  
                   And so as far as -- I'd need to review the data to
     find out exactly what they were doing.
                   MR. HANEY:  What I was referring to is in the
     software that comes with that method you can integrate that
     carbonate peak out without going through the acid wash
     process, and have your labs attempted to do that?
                   MR. ROSE:  I'll have to address that in the post-
     hearing comments.
                   MR. HANEY:  Okay.  Also, I saw that in your
     agreement with the total carbon measurements were much
     better than the elemental or organic carbon measurements.
                   MR. ROSE:  They are not as flawed.
                   MR. HANEY:  And did your labs -- when there is a
     high loading of elemental carbon, it shifts past the preset
     split point on the method. 
                   Did your labs go in and do the manual setting of
     the split point --
                   MR. ROSE:  I'll have to --
                   MR. HANEY:  -- on the basis of the thermogram?
                   MR. ROSE:  -- look at that a little bit more.  
                   MR. HANEY:  You chose for your intersample
     comparison a rib-to-rib comparison as opposed to a side-by-
     side comparison.  
                   What was the reason for doing that?  
                   MR. ROSE:  We wanted to get what the variability
     might be in the same basic air stream.  When MSHA comes out
     to collect samples, they are quite arbitrary on where they
     collect them.  We chose -- we figured one side of the rib,
     the other side of the rib, and that's basically the same air
     sweeping through there, and we just wanted to see how much
     it varied from one side to the other.
                   MR HANEY:  So your samples would include spatial
     variability also?
                   MR. ROSE:  There was some spatial variability. 
     Having samples directly side by side say on a person, it
     would probably result, if it were personal sampling, in much
     higher variability between samples.
                   MR. HANEY:  But you didn't collect those samples?
                   MR. ROSE:  We personally have not collected those
     samples in this study.  There have been other studies done. 
     The same results would probably apply.  Dr. Drown referred
     to some of those studies.  
                   We were testing MSHA's proposed area sampling
     also, not side by side but area sampling.
                   MR. HANEY:  Dr. Drown, you mentioned in your
     statement that you would recommend going with the toolbox
     approach in controlling exposures?
                   MR. DROWN:  I think it's a great approach.
                   MR. HANEY:  Okay.  What would you use as a means
     to level the playing field that all operators would have to
     come into some uniformity rather than what they picked and
     choose and decided was a nice low level for their mines?
                   MR. DROWN:  I didn't think that's been proposed or
     developed at this point, and it certainly could be.  
                   MR. HANEY:  Okay, Mr. Head, you mentioned fuel
     consumption.  Do you have any information on what the fuel
     consumption is at a typical mine?
                   MR. HEAD:  Yes, sir, and that's in the summary
     data that we'll be making part of our post-hearing comments
     both in terms of total fuel consumption for industry group,
     average per mine, annual consumption of fuel of various
     types and the costs of those different types of fuel.
                   MR. HANEY:  Okay.  And would you address or will
     you be addressing the fuel savings due to the use of higher
     efficiency engines, the higher technology engines?
                   MR. HEAD:  I don't believe we will. 
                   MR. HANEY:  Okay.
                   MR. HEAD:  MSHA acknowledged in their economic
     analysis that the newer engines were essentially a wash;
     that possibly higher cost of maintenance may be offset by
     lower operating costs, and I don't really think we disagree
     with that statement.
                   MR. HANEY:  Okay, thank you.  
                   MR. TOMB:  I have one more question for Dr. Head
     also.  
                   Dr. Head -- 
                   MR. HEAD:  You give me a little to which I'm not
     deserving, sir.  Just Mr. Head.  
                   MR. TOMB:  Well, after I heard your presentation,
     it sounded pretty good to me.
                   (Laughter.)
                   Okay, Mr. Head.  In your analysis -- I guess my
     question is over the time period you came up with higher
     costs, did you subtract out during that five-year period
     things that were going to be taking place in those mines
     anyway for upgrading equipment and upgrading ventilation and
     things like that? 
                   MR. HEAD:  In terms of upgrading ventilation, that
     was phased in in a similar fashion to the model in the
     economic analysis.  In terms of phasing in engine
     replacements based on their life, I assumed 10 years, yes,
     we did take into account the phased in adoption.
                   MR. TOMB:  Yes, but I mean, did you take that --
     my question is just was that taken out over the costs you
     proposed for the rule?
                   MR. HEAD:  No, the costs of normal mine operations
     continuing in the same fashion now, whether that be, you
     know, advancing --
                   MR. TOMB:  This is above --
                   MR. HEAD:  This is above those normal operating
     costs.
                   MR. TOMB:  All right.  In your estimation of the
     equipment that these mines had, was this mines that they had
     at the equipment -- I mean, was this equipment actually at
     the mine or was it -- and maybe not being used?  Do you have
     a usage factor for the equipment that they gave you I guess
     is what I'm asking?
                   MR. HEAD:  There is, and it's very difficult to
     show -- anybody that's worked with this massive data can
     appreciate, it's difficult making uniform assumptions across
     such a large mass of data.  But yes, we did take into
     account some utilization factor of both the large engine and
     the smaller engine.  And again, that will be submitted as
     part of our summary data.  
                   And you had asked a previous question, I believe,
     the equipment in use in the mine?  We worked off submissions
     from the mines, both in terms of responses to our survey,
     equipment lists similar to the ones that are presented in
     the mines' ventilation plans, and also discussions with some
     operators.  And it's difficult to abstract from a mine's
     equipment list those pieces of equipment that are not used
     on a regular basis.
                   MR. TOMB:  Yes, I --
                   MR. HEAD:  If they are listed on the list, they go
     down.  
                   MR. TOMB:  That's a very important question 
     though --
                   MR. HEAD:  Of course.
                   MR. TOMB:  -- from the difference between the
     factor that you used to escalate up for the two-thirds of
     the mines that you have information from.
                   MR. HEAD:  I understand.
                   MR. TOMB:  Yes.  
                   MR. KOGUT:  A related question to that, Mr. Head.
                   Did you compile or make any attempt to analyze the
     characteristics of the group of mines that responded as
     compared to the nonrespondents, especially with regard to
     diesel usage or mine size or any other factors that might be
     relevant?
                   MR. HEAD:  We looked at mine size in particular in
     terms of employment versus the numbers of mines that
     responded, and we got a higher percentage if you look at
     employment figures than we did in terms of mines.
                   So the simple answer is we got more responses from
     bigger mines, so it's skewed towards the bigger operators,
     but not exclusively so.  There was still a lot of responses
     from the relatively smaller operators, and some of the mines
     that we know did not respond are very significant users of
     diesel equipment underground.  
                   MR. KOGUT:  Is there any way of assessing, even
     qualitatively, whether the nonrespondents in general though
     as a whole would tend to use diesel less or more than the
     respondents?
                   MR. HEAD:  I don't believe there is.  It was
     fairly widely scattered.  You know, you can't say we can
     take this out and multiply it by that and get a more
     appropriate number.  The data just isn't there.  
                   MR. KOGUT:  What about comparison as far as the
     type of commodity, type of mineral?
                   MR. HEAD:  As I mentioned, I split it out in the
     four categories and a miscellaneous category, so there is
     some differentiation in my data between limestone, lime,
     marble as one group, gold and silver as another group, base
     metals and then the evaporate mines, salt and trona and so
     on.  So there is some distinctions that can be drawn, and
     there are some interesting parallels in that data, and, you
     know, we will be making some comparisons both within groups
     and between sizes of groups in our comments.
                   MR. KOGUT:  Okay.  What about as compared to the
     nonrespondents though?
                   MR. HEAD:  They were also fairly widely scattered.
     There wasn't -- you know, like I say, there wasn't an
     identifiable group that didn't respond.  We could say, okay,
     we'll make an estimate for those guys and plug them back in. 
     It's just too widely scattered.  
                   MR. SASEEN:  Mr. Head, on your engine cost you
     stated that large engines was 27,500 and small engines was
     15,000.  For the large, was that an average cost from like
     150 to -- an average cost of an engine from 150 horsepower
     to say 700 horsepower?
                   MR. KOGUT:  Yes. 
                   MR. SASEEN:  Or was there some other factor you
     used?
                   MR. HEAD:  No, and it can't be an average by
     definition almost, but this was an aggregation of those
     various engine sizes.  
                   MR. SASEEN:  And did you get that from costs of
     what the actual mine operators were paying for these
     engines?
                   MR. HEAD:  Yes, sir.  
                   MR. SASEEN:  Okay, because I know that does vary
     widely in engine manufacturers from what they sell, you
     know, depending on volumes.
                   MR. HEAD:  Of course.
                   MR. SASEEN:  Let's see.  You said -- okay, so the
     engine cost was 27.5 and 15,000.  Then you said substantial
     additional cost, 65,000 for 75 percent of large engines,
     30,000 for 67 percent of the small engine.  
                   Was the -- was the 75/25 split just for large
     engines let's say, was that just the 25 percent would be a
     direct drop in?
                   MR. HEAD:  Yes, sir, like for like.
                   MR. SASEEN:  Okay, so that wasn't trying to say
     that 75 percent of the engines would have to -- or machines
     would have to be upgraded to meet the 160 microgram level?
                   MR. KOGUT:  No.  The compliance strategy, the
     percentage of engines would be replaced to meet the
     compliance strategy.
                   MR. SASEEN:  The 160?
                   MR. HEAD:  One hundred and sixty, whatever, and
     then the subsequent replacement of engines to meet the
     approved engine standard, 5067.  It's that same strategy
     that is dropped in to the model, but with this cost data
     input.  
                   MR. SASEEN:  Okay.  Can you provide us with like
     an average itemized or however your thought process was when
     you came up with that 65,000 and 30,000?
                   MR. HEAD:  Yes, sir.
                   MR. SASEEN:  Okay.  Let's see.  I think that's it
     for right now.  Thank you, sir.
                   MR. TOMB:  Ron.  
                   MR. FORD:  Mr. Head.
                   MR. HEAD:  Sir.  
                   MR. FORD:  I'm sorry to go over this again, but
     you're going to supply us with the data that will get us to
     the numbers of your 6,000 and plus pieces, plus the actual
     cost to estimates?
                   MR. HEAD:  Yes.
                   MR. FORD:  Do you have any idea of when you can do
     that?  I mean, can that be done like in the next couple of
     weeks?
                   MR. HEAD:  Most unlikely, sir.  It probably won't
     be until close to the close of the record some time in July.
                   MR. FORD:  Okay, that's what I'm trying to get at. 
     We can't get that any sooner before the close of the record? 
     I mean, the analysis for the cost seems to be already done. 
     I don't understand why we couldn't get that very soon, this
     preliminary analysis that you did.
                   MR. HEAD:  Right.  One of the reasons is that this
     is preliminary.  To return to Dr. Kogut's question, is that
     we are still getting responses from some mines, aggravating
     though it may be for my analysis.  So we will be updating
     that data over the next month or so.
                   MR. FORD:  Oh, I understand that.  I understand
     that, Mr. Head.  What I'm trying to say if we can get this
     preliminary analysis now.
                   MR. HEAD:  Right.
                   MR. FORD:  We understand that the actual numbers
     and figures may change.
                   MR. HEAD:  Right. 
                   MR. FORD:  But how you got those figures and
     numbers, the mechanics of how you set it up and what you go
     through.
                   MR. HEAD:  The model itself.
                   MR. FORD:  The model itself --
                   MR. HEAD:  Right.  
                   MR. FORD:  -- will be pretty much the same.
                   MR. HEAD:  Yes.  
                   MR. FORD:  And it would be nice to be able to look
     at that now, and we wouldn't have to do so much analysis at
     the end of the period.
                   MR. HEAD:  I understand.  Let me get back to you
     on that, Mr. Ford.  
                   Again, I have to go back to my clients and check
     that with them.  Certainly I can understand validating the
     model that I used is an important part of your review
     process.
                   MR. FORD:  Thank you.
                   Also, on one of your slides, I'm not sure how to
     detail it except by saying that it says "Analysis 3," and it
     had "factor/costs not included in the preliminary cost
     estimate."
                   MR. HEAD:  Right.  
                   MR. FORD:  And it has six bullets below --
                   MR. HEAD:  Yes.  
                   MR. FORD:  -- that are typed costs.  
                   Is it my understanding that these six bullets are
     costs that MSHA did not include in their cost analysis?
                   MR. HEAD:  No, some of them --
                   MR. FORD:  Or are they costs which you at this
     time did not determine to make a -- did a review on?
                   MR. HEAD:  The answer to your question is more
     complicated than a yes/no.  As I stated that we concentrated
     on 5060(a) and (b), and 5067, as they represented 96 percent
     of the total costs.  We assumed in our preliminary cost
     analysis that the remaining costs for the remaining
     standards would be unchanged.  We did not challenge those. 
     We did not revise those costs.  We fixed them at MSHA's
     economic analysis level.  
                   In demonstrating the relative de minimis cost of
     those, they dropped to about one percent when you included
     our increased costs for those other three standards.
                   MR. FORD:  Sure.  
                   MR. HEAD:  So it seemed to us to be less important
     to look at that relatively small fraction of the cost
     analysis.  However, some of them, in discussions with the
     mines, are probably not de minimis for individual mines. 
     For example, substantial increases in air flows will result
     in dust generation.  That's going to be another health
     hazard, another issue that has to be addressed.  Other
     mines, when they increase air flows substantially will have
     to significantly increase air pressure.  All the various
     control devices for the ventilation system will similarly
     then have to be upgraded and maintained.
                   So while we did not factor those into our analysis
     because we do feel they are relatively small fraction, they
     are not necessarily that small a fraction for any individual
     mine.  So we felt it appropriate to highlight that there are
     some elements that were not considered in our review,
     although some of them, like for example training and
     recordkeeping costs, clearly are in the MSHA economic
     analysis.  They are also in our analysis.  We didn't revise
     them. 
                   MR. FORD:  Right, that's what I'm getting at. 
     Like for the training and recordkeeping, you're not saying
     there is any additional that are not included in there. 
     You're just saying that they were so small in relationship
     to the total costs you didn't attempt to address them?
                   MR. HEAD:  Exactly.
                   MR. FORD:  Okay.  And I guess, for some of the
     others like -- did you make any attempt at all to do your
     own estimate of let's say lost productivity?
                   MR. HEAD:  No. 
                   MR. FORD:  Okay.  Did you do any estimate of your
     own of the -- do you have any idea at all at this time of
     the number of mines that would need to drive a new shaft,
     that's bullet No. 5?
                   MR. HEAD:  There are some mines that have
     expressed to me that their shaft capacity is already maxed
     out, that significant increases in ventilation flow simply
     will not be practical through the existing airways, and they
     will have to drive new shafts.  There are several of them. 
     I'm not sure that I can give you an individual number.
                   MR. FORD:  Okay.  When you give us your data, can
     it include what you know of these types of cost?
                   MR. HEAD:  Yes.
                   MR. FORD:  Like for example, how many mines would
     need to drive a shaft from what you've been told?
                   MR. HEAD:  I believe we can make that data
     available, yes.
                   MR. FORD:  Okay, and also, if they have expressed
     to you what the costs would be.
                   MR. HEAD:  Yes.  Things like driving new shafts
     are relatively well known costs.  We can drop in cost of a
     new shaft for 2,000 feet, for example.  What becomes more
     difficult to calculate are some of the lost productivity
     costs --
                   MR. FORD:  Exactly.
                   MR. HEAD:  -- while a piece of equipment is pulled
     out of service for engine modifications.  If it's a simple
     like for like swap out of an engine, it's only out for a few
     days possibly.  If it's a major reengineering job, that
     piece of equipment may be lost for a month or more.  That is
     a significant lost cost of production.
                   MR. FORD:  Sure.
                   MR. HEAD:  We have not made an attempt to factor
     it in and it's going to be, I think, very difficult to get
     that number.  
                   MR. FORD:  That's sort of what I'm getting at too
     --
                   MR. HEAD:  I understand.
                   MR. FORD:  -- is I think it's kind of difficult,
     but I wanted to know if you had that number in any way and
     how you derived it. 
                   MR. HEAD:  I do not, sir.  government
                   MR. FORD:  Okay.
                   MR. SASEEN:  Tom.  No, go ahead.
                   MR. TOMB:  Do you have another one?  
                   MR. FORD:  Oh, yes.  
                   When you did the original survey, it included two-
     thirds of the mines.  Two-thirds of all underground
     metal/nonmetal mines, is that what the two-thirds is?
                   MR. HEAD:  No.  The two-thirds are the responses
     to the survey.
                   MR. FORD:  But the response was sent out to all
     underground metal and nonmetal mines?
                   MR. HEAD:  The survey we sent out to about 215
     addresses.
                   MR. FORD:  Okay.
                   MR. HEAD:  Taken from a list that we got through a
     Freedom of Information Act from MSHA.  We got, obviously, a
     number of nonreturns, nondeliverables and things of that
     nature.  
                   We subsequently updated our list and we have now
     estimated that there are somewhere around 175 active
     underground operations in the U.S.  We got responses from
     104 of those mines.
                   Now, if you factor those numbers of pieces of
     diesel equipment by the 175 over 104, you will come up with
     a slightly different number, not significantly, but slightly
     different, because what we did was we factored up the
     numbers of pieces of equipment, depending on whether they
     were a large mine or a small mine.  And as I said before, we
     got more responses from the large mines.  So that enabled
     that number to go up a little bit.
                   MR. FORD:  Okay.  So of the two-thirds of the
     mines that replied --
                   MR. HEAD:  Yes, sir.  
                   MR. FORD:  -- the one-third that didn't were,
     would you say, mostly employment, did not have a large
     employment, were not large mines?
                   MR. HEAD:  No, it was very well scattered.  In
     fact, there were a couple of very big mines that did not
     respond.  And as I mentioned before, that data is widely
     scattered.  We can't say that there was one particular type
     of mine or one particular size of mine that didn't respond.
                   What you can do is take the aggregate number of
     mines and we've got the 104 by the 75 in terms of the
     percentage response.  We've got a slightly higher percentage
     of response if you take the employment figures.  So from
     that step we deduced that we got more responses from
     slightly larger mines.
                   Did we identify which segment?  No.  It's
     scattered.
                   MR. FORD:  Okay.  So you got more responses from
     slightly larger mines.
                   MR. HEAD:  Correct.
                   MR. FORD:  Which, I guess, would mean that in the
     responses -- and the ones you did not get, they would be
     slightly smaller mines?
                   MR. HEAD:  Correct.   
                   MR. FORD:  Okay.  Can you explain, just help me
     understand why in two-thirds of the mines there is 3,952
     pieces of equipment that you counted.  That's the actual
     count that responded from those two-thirds, right?
                   MR. HEAD:  Yup.  
                   MR. FORD:  Okay.
                   MR. HEAD:  Yup.
                   MR. FORD:  But yet for the one-third of the mines
     that didn't respond, of which more were small than large,
     why does the factor which increases the equipment go up by
     54 percent?  
                   MR. HEAD:  That's because more larger pieces were
     used by more of the people that responded.  There is a
     higher percentage of plus 150 horsepower engines in use than
     the ratio that MSHA assumed in the economic analysis.  
                   Does that answer your question?
                   MR. FORD:  No, I don't think so.  Well, maybe it
     does but I don't understand it.  
                   MR. HEAD:  All right, the -- 
                   MR. FORD:  What I'm trying to say is that if you
     subtract the 6,099 from the 3,952, you've estimated 2,147
     pieces --
                   MR. HEAD:  Right.
                   MR. FORD:  -- in the one-third of the mines didn't
     responded.
                   MR. HEAD:  Right.  
                   MR. FORD:  You've increased the numbers of diesel-
     powered equipment by 54 percent of what the actual survey
     showed of those mines that responded.  
                   Again, I don't understand why it would increase by
     more than half if only one-third of the mines did not
     respond and in those one-third that responded, there were
     more small than largest.  
                   MR. HEAD:  I guess we're going to go around a
     mathematical argument here.  I'm not sure that I'm following
     you.  
                   MR. FORD:  Okay.  
                   MR. TOMB:  You have any other questions?
                   MR. FORD:  Yes.
                   MR. HEAD:  If I could explain again. That factor
     of 175 over 104 is the aggregate.  If you factor those two
     numbers up, the 3952 by the 175 over 104, you will not come
     to 6099, because that 6099 was derived from factoring up the
     large mine engines and the small mine engines, and then
     adding those two numbers together.
                   MR. FORD:  Okay.
                   MR. HEAD:  Similarly with the 150 horsepower
     engines, that was taken as a factoring up of the large mines
     and the big mines and the small mines, and then adding those
     two numbers together.  
                   MR. FORD:  On your -- except for the 2,000 --
                   MR. HEAD:  Would you just hold on a second?
                   (Pause.)  
                   MR. HEAD:  Go ahead.
                   MR. FORD:  On our $2,500 incremental cost for
     approve engines, you said you accepted MSHA's figure.  But
     have you done your own analysis on what that cost would be?
                   MR. HEAD:  No.  There's an awful lot of detail
     here.  Maybe we can talk about it after the meeting or in
     the post-hearing comments.  
                   MR. FORD:  Well, I've just got one more question.
                   MR. HEAD:  Okay.
                   MR. FORD:  It's detailed, but just one more.  
                   MR. HEAD:  I understand.
                   MR. FORD:  The 300,000 for major system
     improvements for cost of ventilation upgrades.
                   MR. HEAD:  Yes, sir.
                   MR. FORD:  Okay.  Sixty-three mines would need
     major improvements, so 63 mines would need -- that's an
     average cost, I guess, 300,000.  Sixty-three mines would
     need 300,000?
                   MR. HEAD:  Yes.  
                   MR. FORD:  Okay.  Thank you.
                   MR. HEAD:  Okay.  
                   MR. TOMB:  Jon?
                   MR. KOGUT:  One last question from me to Mr. Rose. 
     In the protocol for the study you described, was there any
     minimum requirements in protocol on the amount of --
                   MR. ROSE:  The requirement was that the samples
     were collected according to NIOSH 5040, with the exception
     of MSHA's interpretation of the analysis.  
                   MR. KOGUT:  Okay.  I believe that in 5040 there is
     no real minimum loading in the protocol, but there is a
     recommended minimum.
                   MR. ROSE:  Minimum sample volume of 142 liters is,
     I think, what we stuck to.
                   MR. KOGUT:  No, apart from the sample volume, your
     volume, there is also a recommendation, I believe, on the
     minimum loading of a filter.  So was there anything in the
     protocol about the loading?
                   MR. ROSE:  As far as did we require samples we
     included when we collected them, we make sure there is a
     certain amount of particulate in the air before we collected
     samples?
                   MR. KOGUT:  No, I don't mean in the air.  I mean
     on the filter itself before you did the analysis, before you
     did the carbon analysis.  
                   MR. ROSE:  On the analytical side of the thing, we
     sent these to labs, accredited laboratories, and they --
     after the collection of the samples.  AIHA accredited
     laboratories did the analysis.  And how they did that, they
     did it according to the method.  
                   MR. TOMB:  I think what Jon is asking did you have
     a minimum target for deposit on the filter before you sent
     it to the lab.  
                   MR. ROSE:  Well, I don't think we could really
     predict what the particulate level would be in the air
     before we took the measurement. 
                   MR. TOMB:  I guess you're concerned were there low
     measurements.
                   MR. KOGUT:  Yeah.  I guess my concern is all these
     ratios you presented.  Was there any --
                   MR. ROSE:  Oh, if there were any extreme outliers,
     they were excluded.
                   MR. KOGUT:  I'm not talking about extreme
     outliers.  I'm talking about where you got these very large,
     relatively large interferences from carbonaceous, non-diesel
     particulate material, what I'm concerned about is whether
     there was an appreciable amount of the filter -- of material
     on the filter that you were doing the analysis on.
                   MR. ROSE:  Are you referring to the tests with the
     open-face versus the cyclone measurement?  
                   That was the only --
                   MR. KOGUT:  No.  Not just those, but your in-line
     tests and your laboratory tests.
                   MR. ROSE:  The in-line and laboratory tests, the
     oil mist result, the airborne carbon result, the bulk test
     result and the cigarette smoke result were not expressed as
     ratios.  They were expressed as what we measured.  The only
     ratios were the cyclone tests.  And if we were below the
     limited --
                   MR. KOGUT:  Well, and the interlaboratory tests.
                   MR. ROSE:  And the interlaboratory tests.  
                   If we were below the lower limit of detection, it
     was excluded.  
                   MR. KOGUT:  Will you be providing us a copy of the
     protocol itself with your study?
                   MR. ROSE:  A description of the method we
     followed, is that --
                   MR. KOGUT:  You said that that the -- in the text
     it said that you submitted the protocol to various people to
     get their concurrence.  
                   MR. ROSE:  Well, I --
                   MR. KOGUT:  -- the document you have for the
     protocol for the study.  
                   MR. ROSE:  Yes, we will.   Yes, we will submit
     that, and the study was developed with the assistance of
     several professionals.  As far as -- just to clarify what I
     stated earlier, I stated that the study was developed with
     the assistance of a number of people. 
                   MR. TOMB:  Okay, I think it's extremely important
     to emphasize that it's really -- it really would be most
     helpful to the committee if we can get raw data results --
                   MR. ROSE:  I understand that.  
                   MR. TOMB:  -- back, you know, because there is a
     lot involved in looking at the data to see the -- the
     questions that you've raised, you know, we need to look at
     the data carefully.
                   MR. ROSE:  I understand that.  
                   MR. KOGUT:  I also have a question for Mr. Ing.
                   MR. TOMB:  Okay.  Well, let me ask Mr. Rose one
     question.  It might solidify questions for you.
                   Is it possible to get several of the filters that
     we could analyze that you ran where you got disagreement or
     differences from the different laboratories?  Is there any
     sample left that we could get a punch?
                   MR. ROSE:  The interlab samples -- well,
     basically, I don't know, and I would need to check into
     that.
                   MR. TOMB:  Okay.  I mean, it would be helpful to
     look at these interferences you're talking about, what they
     look like on a thermogram.  
                   MR. ROSE:  Oh, are you asking to get the
     thermograms or the actual samples?
                   MR. TOMB:  No, I'm asking for the actual samples. 
     Yeah, we'd like the actual samples.  
                   MR. ROSE:  And that is on the ones where we're
     showing an interference?
                   MR. TOMB:  The ones -- you know, I'm specifically
     interested in looking at some samples where you say, "Hey,
     you can't use this method at all to get an analysis for DP
     sample."  And I'd just like to see what these samples look
     like.  
                   MR. ROSE:  Yeah, we'll --
                   MR. TOMB:  I'm not looking for 100 samples or
     anything.
                   MR. ROSE:  Right.  
                   MR. TOMB:  Whatever you might be able to supply us
     with.  
                   MR. ROSE:  We'll look into that.
                   MR. TOMB:  Okay.  Bob?
                   MR. HANEY:  Mr. Rose, when you collected your
     samples, did you use blanks to correct those examples?
                   MR. ROSE:  We would submit a blank with each batch
     of field samples, and as far as how the analytical
     laboratory blank-corrected our samples, I'll need to take a
     look at that and find out exactly how they blank-corrected
     those samples.  
                   MR. HANEY:  Okay.  
                   MR. TOMB:  Wait a minute.  I have Jon here.  
                   MR. HANEY:  Okay, go ahead, Jon.  
                   MR. KOGUT:  Who is your question to?  
                   MR. FORD:  Mr. Head.
                   MR. KOGUT:  Why don't you go first.
                   MR. FORD:  Go ahead.  Go ahead.  
                   MR. KOGUT:  Mr. Ing, you spoke of striking a
     balance between protecting the health of miners and
     maintaining economic viability of the mining industry.  And
     you also questioned the evidence available in the risk
     assessment or certain parts of it, especially those parts
     relating to lung cancer, I believe.  
                   One thing you mentioned was -- I guess my very
     general question is can you give the committee some guidance
     beyond just saying that we need to strike a balance as to
     where the fulcrum of balance might be?  
                   Assuming that we were able to resolve some of
     these, I think, very thorny measurement issues, and, you
     know, because in the epidemiological work that's been done
     certainly they -- you know, the measurements that were taken
     were subject to the same sorts of problems that we would
     have in enforcement, and yet there is, in the committee's
     opinion anyway, there has been fairly consistent results
     showing a -- showing adverse health effects in populations
     that have been exposed to diesel particulate after adjusting
     for things like healthy worker effects, and particularly if
     comparisons were made to -- internal comparisons were made
     within the same population of workers.  
                   You mentioned that Eric Garshick, the principal
     author of the two studies on railroad workers, has said, you
     know, that his 1998 -- 1988 study, in his opinion, could not
     be used for quantitative risk assessment, which means that
     he didn't think that it -- doesn't think now that it can be
     used to establish a dose response relationship.
                   From private conversations that I've had with him,
     however, I think that he's still firmly of the opinion that
     it does show an increased risk of lung cancer associated
     with working in the environment of diesel particulate,
     diesel emissions.  So it's not that he's saying there is --
     you know, that there is no evidence of any association
     between diesel particulate exposure and an increased risk of
     lung cancer.  What he's saying is that the data can't be
     used to establish a dose response curve, but there still
     does provide evidence that working in the environment of
     diesel emissions at the levels that we're seeing among the
     railroad workers still is associated with increased risk.
                   Now, given that those levels, and I admit that,
     you know, the measurements were certainly crude, but from
     all the evidence that we have the levels of concentrations
     of diesel particulate that those railroad workers were
     exposed to, and also the other workers that were involved in
     other epidemiological studies showing an association, are
     lower than the worst cases that we've seen in mines.  In
     other words, at some mines, you know, we recognize that the
     concentrations are much lower than they are at other mines. 
     But in some mines at least they are quite a bit higher than
     anything that was measured for these epidemiological
     studies.
                   So when you say "strike a balance," what do you
     have in mind there?  I mean, do you have in mind something
     far higher than what the levels were in these
     epidemiological studies where there is an evidence of an
     increased risk of cancer?  
                   Part of what we had in mind, I mean, part of what
     motivated the committee in setting the limits that we did
     was, and probably the primary factor was that we thought
     that was what was economically and technically achievable,
     but part of what we had in mind also was that we were trying
     to get something down that was as least roughly comparable
     to what workers in other occupations are exposed to and even
     comparable to what workers in these epidemiological studies
     were exposed to where there was evidence of association.
                   So when you take a balance, what do you think is a
     reasonable balance?  And don't -- you know, you don't have
     to be very specific, you know, to the nearest 10 micrograms
     or something, but, you know, within an order of magnitude,
     what do you think a reasonable balance would be?
                   MR. ING:  First, I don't think I can offer a
     number that can be -- to even begin to address to strike a
     balance on a PEL or a TLV.  
                   Second of all, in our post-hearing comments Dr.
     Borak has addressed the epidemiological issues that we will
     submit for the committee to review.  So I'd like to leave
     that question for him to answer on that.
                   I think also from everything -- people that I have
     talked to, I think the jury is still out on where that
     balance needs to lie.  I think an important piece of the
     puzzle to understand where we need to go with it all is
     completing the NIOSH/NCI study on those miners using today's
     equipment, using today's methodologies, and doing the study
     that looks back at what the exposures were.  
                   I think once that's done some kind of striking a
     balance, John completes the technological feasibility.  I
     think that will be the striking the balance at that time
     when that information is available.  I don't think we as an
     industry are ready to propose a true this is what the level
     ought to be.  I think there is still too many unknowns out
     there to strike that balance.
                   I'm sorry.  I can't answer your question any
     better than that.
                   MR. KOGUT:  Okay.  I also wonder -- I mean, you
     focused your comments really on the lung cancer part of the
     risk analysis, and I wondered whether you had anything more
     specific to say about the other two -- the other part of the
     risk assessment which involved health risks associated with
     diesel particulate insofar as it is a fine particulate, or
     most of it is a fine particulate, and there are fairly well
     established exposure response relationships that have been
     worked out for fine particulate in general, not specifically
     having to do with lung cancer, but without other adverse
     outlooks.  
                   MR. ING:  With lung overload, et cetera.  I think
     we'll let the -- the best way to address those is with Dr.
     Borak along those risk assessment studies.  
                   I thought I was going to get out of this without
     having to answer a question.  
                   VOICE:  You didn't. 
                   (Laughter.)  
                   MR. ING:  My lawyers trained me well.  
                   MR. TOMB:  Bob has a question.
                   MR. HANEY:  Mr. Head, on your slide dealing with
     your revised cost of ventilation you said that none of the
     mines would be able to meet the proposal through dilutional
     and I think --
                   MR. HEAD:  If I may interject, that is -- that is
     not what I said.  
                   Ventilation is one of four strategies proposed in
     the economic analysis, and ventilation was not considered
     necessary at 45 of the 203 mines as part of the strategy. 
     I'm saying that ventilation is part of the strategy at every
     mine.  There will be some ventilation costs at every mine.
                   MR. HANEY:  Okay.  That's not how I heard you say
     that.  Okay.  Because I heard you say that just looking at
     the dilution alone when you made your original presentation. 
     Thank you for clarifying that.
                   MR. HEAD:  Okay.  
                   MR. TOMB:  George, did you have any questions?
                   MR. SASEEN:  No, I think I'm fine.
                   MS. WESDOCK:  I have one.
                   MR. TOMB:  Okay, Sandra.
                   MS. WESDOCK:  Mr. Drown, I think that the
     testimony of the association is that you will prefer MSHA
     sticking with the toolbox approach for now until the NIOSH
     studies is completed; is that correct?
                   MR. DROWN:  I don't think that's an unreasonable
     consideration.  
                   MS. WESDOCK:  I'm just trying to understand.
                   MR. DROWN:  Yes. 
                   MS. WESDOCK:  Okay.  In the preamble to the
     proposal, MSHA went in detail regarding the estimator and
     the impact of different control technologies with the levels
     of DPM.
                   To your knowledge, has any of your members used
     the estimator?  Do you know?
                   MR. DROWN:  I don't know.  I don't know.  
                   MS. WESDOCK:  Okay, thank you.
                   MR. TOMB:  I'm not going to ask for any more
     questions.  I want to bring this particular session to a
     close now.  We thank you for your input, and, again, I'd
     like to really stress that the more information that you can
     provide the committee with, we can make our deliberations a
     lot better to use your input.  
                   Okay, thank you very much.  
                   MS. WESDOCK:  Thank you.  
                   MR. TOMB:  Mr. Blase, are you going to be using an
     hour, a full hour, that you have here?
                   MR. BLASE:  I believe we will need less than that.
                   MR. TOMB:  Okay.  Why don't we take an hour break
     for lunch now, and be back here at 12:30 to continue.
                   (Whereupon, at 11:45 a.m., the meeting was
     recessed, to resume at 12:30 p.m., this same day, Tuesday,
     May 11, 1999.)
     //
     //
     //
     //
     //
     //
                   A F T E R N O O N   S E S S I O N
                                                  (12:40 p.m.)
                   MR. TOMB:  Our next presenter is going to be from
     Kennecott Greens Creek Mining Company.  And I'm sorry, sir,
     are you going to make the first presentation?  Your name?
                   MR. WATSON:  My name is David L. Watson.  
                   MR. TOMB:  Okay.  Spell your name, please?
                   MR. WATSON:  Watson, W-A-T-S-0-N.  
                   MR. TOMB:  Oh, Watson.  Okay.  
                   MR. WATSON:  Just like Sherlock Holmes.
                   MS. KING:  But spell it for the record, please.
                   MR. WATSON:  W-A-T-S-O-N.
                   MS. KING:  Thank you.  
                   MR. WATSON:  I am Director of Technical and
     Health, Safety, Environmental Quality for Kennecott Minerals
     Company here in Salt Lake City.  Our company operates the
     Greens Creek Mine, an underground metal mine near Juneau,
     Alaska, which uses diesel equipment.  I am a mining engineer
     r with 38 years of experience.  
                   This morning Kennecott will discuss diesel
     particulate matter as it applies to Greens Creek.  Besides
     my statement, there will be presentations by the Greens
     Creek General Manager, Mr. Marshall, who is on the
     telephone; and our Greens Creek Industrial Hygienist, Ms.
     Broschat; and our legal counsel, Mr. Blase; and Kennecott's
     Manager of HSEQ, Mr. Box. 
                   We at Kennecott agree with MSHA that our goal is
     "to reduce underground miner exposure to attain the highest
     degree of safety and health protection that is feasible."
     That's from the Federal Register on page 58,104.
                   Mr. Marshall has just appeared.  
                   My remarks today are concerned with the technical
     feasibility of the proposed rule at the Greens Creek Mine. 
     We believe that Greens Creek is typical of many U.S.
     underground metal mines which have been designed for
     trackless operation using diesel equipment.  Greens Creek is
     not similar to mines extracting coal, salt, trona or potash
     where there is a greater use of electrical equipment.  
                   Kennecott believes that MSHA should recognize
     these differences in the proposed rulemaking and not lump
     all underground metal/nonmetal mines together.
                   Now, I've got a couple of drawings here to
     illustrate what Green Creek looks like.  
                   The first drawing is a colored drawing which
     illustrates the geology of Greens Creek and the red portion
     is the ozone.  As you can see, this is a highly irregular
     ore body.  It's not uniform like a coal mine or a salt mine
     or salt bed.  And I think you can understand that it
     requires a flexible mine.  When I say "flexible," I mean
     something that is not tied to track or trolley line or some
     sort of electrical power.  So the mine has been designed
     specifically for electrical power or diesel power.  
                   This next isometric is mostly underground workings
     built by an attic.  The mountain goes up like that and it
     illustrates the vertical extent of the mine from 1350 feet
     above sea level to just below sea level down here at the
     bottom.
                   MR. TOMB:  Mr. Watson, excuse me one moment.
                   MR. WATSON:  Yes, sir.
                   MR. TOMB:  Could you use the separate mike so that
     the reporter can hear you.
                   MR. WATSON:  Sure.
                   MR. TOMB:  If you don't mind.  Thank you.
                   MR. WATSON:  Okay?  
                   Let's see, where was I?  The mine was developed by
     an attic, which is our intake airway for ventilation, and as
     you can see, it's developed by ramp going uphill and
     declines going down.  
                   Let's see the next print.
                   This is a planned view of the underground workings
     of the mine.  This distance is about six or seven thousand
     feet, and the point to illustrate here is the real extent of
     the mine and the location of the different shoots which we
     work, which shows the random nature, and again the need for
     a flexible system of exploitation.  
                   Now, MSHA proposes a concentration limit for
     diesel particulate matter expressed in terms of total
     carbon, not DPM.  This is problematical because the Greens
     Creek ore contains one to three percent elemental carbon in
     the form of graphite.  Preliminary sampling using the NIOSH
     5040 method indicates there are a number of interferences
     inherent with the method in obtaining an unbiased total
     carbon sample.  If we cannot get a representative sample of
     DPM, we cannot measure our performance.  This alone makes
     the proposed rule unfeasible.  Kennecott Greens Creek Mining
     Company is testing instrumentation to measure DPM but we do
     not yet have a feasible method, and Mrs. Broschat will
     elaborate on this comment in her remarks.
                   On page 58,203 of the subject Federal Register,
     MSHA states, "....the agency....knows of no mine that cannot
     accomplish the required reductions in the permitted
     time...."  However, MSHA does not identify any mine which is
     currently in compliance with the proposed DPM standards,
     much less a mine similar to Greens Creek in terms of geology
     and layout.  
                   Instead, MSHA refers to their toolbox, which is a
     discussion of ways to reduce miners' exposure to DPM. 
     However, there is no indication of the amount of reduction
     to be expected from the toolbox.  Furthermore, two sections
     of the toolbox, use of enclosed cabs and respiratory
     protective equipment, are deprecated for compliance
     purposes.
                   Greens Creek has about 7,000 kilowatts of mobile
     diesel equipment available for underground, although not all
     is operated in the mine at the same time.  Total ventilation
     is about 137 cubic meters per second.  There are about 120
     active working places on any workday.  The equipment uses
     diesel fuel with a sulfur content currently averaging 0.02
     percent by weight.  Most of the equipment is fitted with
     catalytic converters and work is underway to evaluate soot
     filters on some of the larger pieces of equipment.  We pay
     attention maintenance.  Some of the equipment is just too
     years old.
                   Nevertheless, preliminary work indicates that it
     will be virtually impossible to meet an area DPM limit of
     400 or 160 micrograms per cubic meter at all working places
     in the Greens Creek Mine, at all times, with existing diesel
     equipment, ventilation and fuels.  Installing high
     efficiency ceramic filtration on all heavy-duty diesel-
     powered equipment is not practical, according to the Federal
     Register on page 58,117, due to variations in engine duty
     cycles and filter regeneration requirements.  Retroftting
     the mine for all electric operation is not technically nor
     economically feasible.
                   In conclusion, Greens Creek will continue to
     reduce miners' exposure to DPM.  However, at this time, we
     see no way to be in compliance with MSHA's proposed absolute
     area standard.  
                   Now, let's take a look at this last visual.  I
     would particularly call your attention to this visual
     because this illustrates our mining method.  This is the
     entrance into the ore body in a typical stope.  This is ore
     to be exploited.  This is the equipment, and this is the
     ventilation which ventilates the piece of equipment.
                   Now, after the ore is extracted, the opening is
     backfilled with a combination of dewatered and cemented mill
     tailings and development waste rock.  In order to get
     maximum ground support and safety the fill is jammed into
     the opening.  The diesel-powered jammer works in a dead end
     and at the extreme of the diesel duty cycle.  We do not
     believe that a measurement of 400, much less 160 micrograms
     per cubic meter of DPM is possible at this location. 
     Therefore, we suggest that personal protective equipment be
     allowed for compliance purposes in those working places
     where a combination of ventilation, filtration, and engine
     maintenance is not sufficient to obtain the sustained DPM
     concentration of 160 micrograms per cubic meter.
                   We believe that the proposed rule fails the
     feasibility test for the Greens Creek Mine in terms of
     measurement of DPM and available technology.
                   Thank you, and now Mr. Marshall will continue with
     our remarks.
                   MR. TOMB:  Are you willing to take a couple of
     questions while you have your --
                   MR. WATSON:  Your pleasure.  
                   MR. TOMB:  Jon.
                   MR. KOGUT:  Yes.  You said that installing high
     efficiency ceramic filtration is not practical due to
     variations in engine duty cycles and filter regeneration
     requirements.
                   Could you explain that a little bit?
                   MR. WATSON:  I believe that's right out of your
     book, page 58,117.
                   MR. KOGUT:  Okay.  
                   MR. MARSHALL:  I will go into that in a bit more
     detail.
                   MR. KOGUT:  Okay.  And then one other question. 
     Your suggestion is that personal protective equipment be
     allowed for compliance purposes in those working places
     where a combination of ventilation, filtration, engine
     maintenance and so forth are --
                   MR. WATSON:  Um-hmm.
                   MR. KOGUT:  So you're talking about cases --
     you're saying that in some cases that the high efficiency
     ceramic filters --
                   MR. WATSON:  Um-hmm.
                   MR. KOGUT:  -- could not be used?
                   MR. WATSON:  Are not practical.  
                   MR. KOGUT:  Yes.  
                   MR. WATSON:  Sure.  So where we can't meet the --
     where we can't meet the proposed regulation, then we should
     be allowed to use -- we should be allowed to use masks or
     something like that.
                   MR. KOGUT:  Right.  But you're saying --
                   MR. WATSON:  Or enclosed cabs, whatever you want
     to do, but your methodology or your -- on page 58,117, you
     state specifically that you're going to measure any place
     you choose.  So if you're going to do that, you know, if we
     can't meet it, putting people into enclosed cabs does not
     good at all.  That's why I say you've deprecated your
     toolbox, two of your measures in your toolbox.
                   MR. KOGUT:  But part of your proposal then is to
     use the ceramic filters in those instances where they can be
     used?
                   MR. WATSON:  Well, I'm going to let Mr. Marshall
     talk about the practicalities of using ceramic filters. 
     Okay?
                   MR. KOGUT:  How many pieces of equipment are in
     that stope?  
                   MR. WATSON:  Well, in that particular case, I
     showed you one.
                   MR. KOGUT:  Right.
                   MR. WATSON:  But sometimes we'll have two or
     three.
                   MR. KOGUT:  Okay.
                   MR. WATSON:  Um-hmm.  
                   MR. HANEY:  How high is that stope?
                   MR. WATSON:  Well, as I showed you on the geology
     section there, this ore body is sinuous and contorted at
     best.  We might get in one location 45 - 50 feet of vertical
     extent in one place without moving to get another piece. 
     It's not a -- it's not real thick in that particular place
     that I showed you.
                   We have another spot where it might be 200 - 300
     feet.
                   MR. HANEY:  Okay.  And what is the air volume you
     have moving into one of your stopes?
                   MR. WATSON:  Let's see, is it 30,000 CFM?  Yeah,
     about 30,000 CFM.
                   MR. HANEY:  Thirty thousand.
                   Does that equipment have cabs on it?
                   MR. WATSON:  No.  
                   MR. HANEY:  It doesn't have them.
                   And is there anybody working in that stope that's
     not on a piece of equipment?
                   MR. WATSON:  That's not on a piece of equipment?
                   MR. HANEY:  Right, not an equipment operator.
                   MR. WATSON:  Might be a sampler, geologist,
     someone like that.
                   MR. HANEY:  Okay.  And what's the horsepower of
     that backfilling machine?
                   MR. WATSON:  One hundred fifty.  About 150 - 175
     horsepower.  
                   MR. HANEY:  Thank you.  
                   MR. WATSON:  Yeah.  
                   MR. MARSHALL:  My name is Keith Marshall,
      K-E-I-T-H M-A-R-S-H-A-L-L.  I am the General Manager of the
     Kennecott Greens Creek Mine in Juneau, Alaska.  I am a
     mining engineer with 20 years experience.
                   The Greens Creek mine is located on Admiralty
     Island, inside a National Monument.  Admiralty Island is
     famous for having the largest density of grizzly bears in
     North America.
                   Operating within a National Monument brings
     special responsibilities, especially regarding the
     environmental impact of the mine.  Greens Creek considers
     itself to be environmentally responsible with a proven track
     record of environmental excellence and compliance.  The
     operation has constant dealings with numerous environmental
     regulating bodies as well as the Forest Service and MSHA
     through the Coeur d'Alene and now the newly established
     Anchorage office.
                   In 1998, the mine was awarded the prestigious
     Department of Labor Sentinels of Safety Award for being the
     safest underground metal mine in the United States of
     America.
                   We have five full-time employees working on
     environmental issues, three employees working in the safety
     department, and three paramedics.  
                   Ms. Broschat, who is here with us today, is an
     industrial hygienist working as part of the safety
     department.
                   I mention these aspects of the operation because I
     wish to convey to you that Greens Creek considers itself to
     be a responsible operator.  We consider the health safety
     and environmental quality of both our workers and our
     neighborhood to be of paramount importance to us.
                   We also agree wholeheartedly agree with the
     concept of improving the quality of the working environment
     underground.  We have been and will continue to work towards
     that goal.
                   Our industrial hygiene work has included:  noise
     control, dust and silica control, personal protective
     equipment, respiratory protection, and improvements in
     ventilation  And during the last six months we have been
     concentrating on diesel particulate matter.
                   I would like to express Green Creek's willingness
     to cooperate with MSHA and NIOSH, in any way possible, to
     improve our understanding of both the health effects and the
     sampling procedures related to this issue.
                   I must also express concern over the current level
     of understanding of the science of this issue.  There does
     appear to be some confusion over both the health effects and
     the sampling procedures related to diesel particulate matter
     underground.
                   Regardless of the debate on the validity of the
     science upon which this proposed legislation is based, I
     would like to outline to the panel the results of our
     sampling to date; the current steps being undertaken by
     Greens Creek to improve the workplace environment; and the
     potential steps available to further improve the workplace
     environment.
                   Results to date:  The results from our DPM
     sampling program, which was carried out using NIOSH
     recommended sampling techniques, will be covered in more
     detail by Ms. Broschat.  The fact that sample results are
     considerably higher than the proposed MSHA limits,
     regardless of the validity of the sampling techniques,
     concerns me greatly.
                   The results were wide ranging; the fresh air
     intake -- the start of the ventilation cycle -- contained an
     average of 240 micrograms per meter cubed, and the backfill
     jamming process, as Mr. Watson has highlighted -- the end of
     the ventilation cycle -- contained an average of 1600
     micrograms per meter cubed.  Apart from being higher than
     the proposed standards, there are two other very worrying
     aspects of the results:
                   240 micrograms per meter cubed were detected in
     the intake air; and 260 micrograms per meter cubed were
     detected in non-diesel areas.
                   Both of these results are higher than the proposed
     standard and yet should not have seen any form of diesel
     particulate matter.  This indicates some form of
     contamination, presumably from some non-diesel source of
     carbon.  The footwall host rock at Greens Creek is a slatey
     Algellite containing elemental carbon.
                   The second point, improved ventilation.  As you
     can see from the isometric drawing here, Greens Creek was
     designed and excavated over the last 10 years to comply with
     MSHA recommended standards of ventilation.  Greens Creek is
     typical of a mid-life mine.  There is some ongoing
     development.  However, the principal mine infrastructure is
     already in place, including the ventilation airways.
                   Unfortunately, increasing ventilation capacity is
     not just a case of turning up the fans.  The fresh air
     intake airways are also the main haulage routes and as such
     are subject to air velocity limitations.  Increasing the
     velocity beyond 60 meters per second for example will
     increase dust and visibility levels, and in our case in the
     frozen north could result in severe freezing problems.
                   Greens Creek is currently upgrading the
     ventilation circuits with a target of a 40 percent increase
     in the air by the 1999, by the end of this year.  The cost
     of this exercise will be over $1 million.
                   The third point is exhaust filtration.  Greens
     Creek is currently in the process of setting up a research
     program with DCL International, out of Toronto, Ontario, to
     investigate the feasibility of using ceramic soot filters on
     our underground fleet.  
                   Each filter cost $16,000.  It is estimated that we 
     will need to put filters on all engines that are greater
     than 120 kilowatts.  We have 30 such units; an initial
     expenditure of $480,000.
                   As it is currently understood, the duty cycle of
     our equipment is such that the temperature of the exhaust
     gasses will Passenger In-Flight Disturbance e insufficient
     to self-clean the filters.  The filters will need to be
     removed from the units for cleaning.  The principal units
     will therefore require two filters and a furnace or other
     cleaning facility will be required.  It is estimated the
     total cost during the first year of implementation could be
     as much as $1 million.
                   Theoretically the filters should help to reduce
     the levels of DPM.  However, to date the practicality of the
     option is unknown.  I personally liken the use of ceramics
     in an underground situation to taking your best china on a
     picnic.
                   Point four is other measures.  Greens Creek uses
     engines with computerized ignition control, and fuel and
     exhaust monitoring, resulting in some of the cleanest
     burning engines I have ever seen.  The fuel is a NIOSH 5040
     low sulfur fuel with a sulfur content of .02 percent by
     weight.
                   Greens Creek is also currently employing an
     opacity meter to determine the effectiveness of the routine
     engine maintenance and to rank the combustion efficiency of
     the various engines.
                   Conclusions:  These measures mentioned will reduce
     diesel particulate matter but if the sampling results to
     date are correct, and we do have some questions about their
     accuracy, then it is doubtful if even a combination of all
     the measures mentioned above will reduce the levels of DPM
     sufficiently to meet the currently proposed standards.
                   The economic practicality of implementing all of
     the steps is unknown.  With metal prices at their lowest
     levels for many years, we at Greens Creek have learned to
     carefully evaluate the validity of any proposal prior to
     undertaking large expenditures.  We must have more time to
     evaluate the effectiveness of the remedial measures before
     we commit to the expenditure.
                   We do aim to do everything economically feasible
     to reduce the level of DPM exposure to our workers. 
     However, I am concerned that even our best endeavors will
     not allow us to fully comply with these stringent proposed
     standards.
                   In summary, the aim of the Greens Creek Mine is to
     continue to improve the quality of the workplace
     environment, including diesel particulate matter, with our
     goal being the long-term health of our workforce.
                   Greens Creek is already carrying out research and
     implementation work with a third party regarding soot
     filters.
                   We will be contacting NIOSH to become involved in
     their sampling program.  
                   Unfortunately, all of these studies take time. 
     This is not procrastination on the part of Greens Creek, but
     it is a request for more time to fully evaluate this issue.
                   As far as I'm concerned, a part remedy that still
     leaves the mine out of compliance is no remedy at all, and
     that part remedy may have cost well over a million dollars.
                   I would like to suggest that MSHA consider the
     following short-term recommendations:
                   That mining companies are requested to demonstrate
     that reasonable measures have been taken to reduce the
     levels of diesel particulate matter.  These measures can
     include:  sampling and monitoring; ventilation improvements;
     mechanical and maintenance improvements; filtration; and
     operational changes.
                   Where mines identify areas underground with
     substantially higher levels of diesel particulate matter,
     personal protective equipment and administrative controls
     should be implemented to reduce individual exposure levels.
                   In the meantime further investigations are carried
     out to establish the real health risks associated with
     diesel particulate matter, and what are the correct sampling
     procedures.
                   I would like to thank the panel for the
     opportunity to express my points of view on this, and call
     on Ms. Broschat to talk about some of the sampling issues
     that we raised.  
                   MS. BROSCHAT:  Good afternoon.  My name is Leslie
     Broschat.  That's L-E-S-L-I-E B-R-O-S-C-H-A-T.  I am the
     industrial hygienist for the Kennecott Greens Creek Mining
     Company in Juneau, Alaska.  I have held that position since
     November of 1997, and I have 14 years experience in the
     health and safety field.
                   For the past year, in addition to addressing the
     other safety issues at Greens Creek, I have been studying
     the presence of diesel particulate material underground.  To
     accomplish this, I have collected close to 100 samples which
     I have summarized into a series of tables which is in that
     handout that I gave you.  I'll be making some reference to
     them.
                   At an early point in this endeavor, it became
     evident that samples collected in similar locations
     frequently didn't produce similar results.  Review of the
     averages and standard deviations calculated for each sample
     set provide support for this observation.
                   Fred, can I have my first chart?
                   (Chart.)
                   In most cases, the standard deviations are one-
     half or more of the average, indicating a wide range of
     individual data points. 
                   What I have done here is broken down the like
     groups of samples.  For instance, we've got the mine
     headings, the muckers and the jammers, which was --
                   MR. TOMB:  Is that table in here?  
                   MS. BROSCHAT:  No.  This is a compilation of what
     I have in there.  Those tables are broken into more detail. 
                   This would be hour highest average concentration. 
     As you can see, the standard deviation is more than 50
     percent of that.
                   Again, with vehicles that drive in and out of the
     mine as opposed to staying put in a heading, we've got 875
     with a very high standard deviation as well.  
                   I did the same thing with intake airway samples,
     exhaust airway samples, non-diesel equipment operations,
     such as electricians, mechanics, folks like that, and then
     non-diesel mine mill areas outside of the mine altogether. 
     And in each case the standard deviation is quite high,
     showing that it was very difficult to reproduce numbers that
     were similar.
                   What I'd like to do now for the rest of my
     statement is just give you some examples of some of the
     things I experienced, more significant findings that I
     became aware of in the process of doing these samples.
                   At an early state of the project, I noticed a
     sample collected in the underground maintenance shop stood
     out from the others due to the extremely high organic carbon
     fraction.  This sample is included in the non-mining and
     milling sample set contained in Table VIII.  
                   Upon reviewing the circumstances associated with
     the activities going on while this sample was being
     collected, we determined that the sampler was located in an
     area where spray solvents are used generously.  Consultation
     with the analytical lab confirmed that even small amounts of
     this organic hydrocarbon collected on the sampling filter
     will produce a high organic carbon number upon analysis.
                   It is a known fact that the Greens Creek Mine has
     areas where the ore has a very high graphite content.  To
     attempt to quantify this, samples were collected on silver
     membrane filters and analyzed by x-ray defraction.  Although
     this type of sampling was limited, samples were collected of
     the various mining activities and from intake and exhaust
     airways, as was the practice with the samples collected for
     MSHA analysis.
                   In all cases, the laboratory reported heavy carbon
     loading on the filters.  The laboratory has requested
     samples of our ore in order to prepare suitable standards
     and give us more accurate and precise results.  We have
     provided this to them and would appreciate the time to
     further pursue this line of analysis.
                   The lab report stated that the weight of graphite
     was clearly higher than diesel particulate.  We believe,
     especially in the case of the samples collected in the
     headings, which are illustrated in Table I, the graphitic
     nature of some of the ore caused higher elemental carbon
     results, consequently biasing the total carbon number.
                   The proposed rule states, and NIOSH concurs, that
     diesel particulate matter is typically found in the one
     micron size range.  With this thought in mind, we embarked
     on a sampling exercise co-locating pairs of samples in a
     variety of locations, equipping one sample with a cyclone
     designed to separate particulates greater than an average of
     4.5 microns from those smaller than 4.5 microns and
     collecting only the smaller particulates on the sampling
     filter.
                   Eleven sets of co-located samples were collected
     and analyzed.
                   You can put the second chart up, Fred.
                   (Chart.)
                   The results of these samples are summarized in
     Table VI and VII in the handout and as well on Chart 2.  In
     every case, the concentration of total carbon found in the
     sample fitted with a cyclone was lower than the
     concentration of total carbon found in the sample without a
     cyclone.  On the average, the cyclone samples had a total
     carbon concentration 46 percent lower than those collected
     without a cyclone.  And as you can see on the chart, you've
     got the percentages over to the right.  Those average
     together is 46 percent.
                   NIOSH stated in the February 1999 issue of "Mining
     Safety and Health Focus" that most diesel particulate matter
     is smaller than one micron in size and other material found
     in conjunction with diesel particulate matter in air samples
     is mineral in nature.  
                   They also stated that they are developing a
     personal sample that will select for particulate in the one
     micron and smaller size range, and will be making that
     available for commercial use.
                   We would appreciate the opportunity to collect
     samples using such a sampler because we believe, based on
     the results from using cyclones while sampling and NIOSH's
     statements concerning particle sizes, those samples may
     provide a more accurate picture of what the true
     concentrations of diesel particulate matter are in the
     Greens Creek Mine.
                   To further research the influence of particle size
     on analytical results, two six-stage Marple cascade
     impactors were purchased and sampling was performed. 
     Unfortunately, sampling in this manner was found to be very
     problematic, especially due to the delicacy of the filters. 
     The two smallest stages of the cascade impactor have cut-
     points of .6 and 1.5 microns.  We believe that successful
     results from samples collected using these samplers could
     provide us with more good information about the influence of
     particle size on diesel particulate material, and we, again,
     would appreciate the time to continue that sampling
     approach.
                   Table VIII contains results from non-mining and
     milling areas.  Even in areas of the Greens Creek site, such
     as the sample prep laboratory and the safety office where
     diesel-powered equipment is not operating, sample results
     indicated appreciable levels of total carbon.  This supports
     the theory that the NIOSH 5040 analytical method is
     nonspecific and factors such as cigarette smoke, graphite,
     organic hydrocarbons and large mineral particles are
     detected during analysis and reported as elemental and
     organic carbon, biasing the final results.
                   It is apparent to us that further analysis is
     necessary and we would certainly appreciate the opportunity
     to perform further sampling with more accurate methods prior
     to the finalization of the proposed diesel particulate
     standard.
                   To restate Greens Creek's position, Greens Creek
     welcomes the opportunity to work with MSHA, NIOSH and any
     other interested parties to develop DPM standards that are
     both feasible for operators and prevent a significant health
     risk to our underground miners.  
                   And now I'd like to introduce Kurt Blaze, our
     attorney from Washington, D.C., who will summarize our
     statements for us.  Thank you.  
                   MR. BLASE:  Good afternoon.  My name Kurt Blase, 
     K-U-R-T B-L-A-S-E.   Again, that's K-U-R-T B-L-A-S-E.  Kurt
     Blase is my name.  I'm a partner in the D.C. office of the
     law firm Kilpatrick Stockton.  I am here today representing
     Kennecott Greens Creek Mining Company.
                   I'd like to just very briefly summarize some of
     the things we've heard today and try to put them in a legal
     and analytical framework that we use in our written
     comments, which we submitted about two weeks ago. 
                   I think the first point is that -- at least with
     respect to the analysis that we've performed to date -- this
     proposal is not feasible for metal mines.  They are not like
     other mines where electric equipment can be cost effective.
     They are designed for diesel equipment.   And to the extent
     that they are not able to use that, the very process that
     they are designed for is being taken away.  
                   MSHA's feasibility analysis to date did not look
     closely at metal mines as a separate industry segment.  We
     believe you must do so, that it's required by the applicable
     judicial decisions which we've cited in the written comments
     that we've provided.  
                   My clients at Greens Creek have developed a
     feasible DPM reduction plan which they are pursuing now and
     will continue to develop.  However, there is no evidence to
     date that it will achieve compliance with the proposed
     standards.  Reasonably accurate sampling methods are not
     even feasible at the moment.  We must develop these first
     before feasibility in metal mining segments can be assessed
     accurately.
                   These problems with the current feasibility
     analysis are compounded, we believe, by the proposal not in
     compliance with personal protective equipment where
     engineering controls are not feasible.  This is the legal
     quid pro quo for not requiring MSHA to demonstrate now that
     feasibility -- that the proposal was feasible for each
     affected mine.  
                   Under the applicable court decision, MSHA's
     decision creates presumption of feasibility which the
     operator of a specific mine can rebut in an enforcement
     case.  If he is successful, he can then use protective
     equipment or other means to comply with the standards.  The
     proposal not to allow operators to do that is not consistent
     with the applicable judicial or MSHA precedent, and it takes
     away a primary legal protection, especially whereas here,
     the available data show that the proposal is not feasible
     with engineering controls in many cases.
                   These problems with the feasibility analysis are
     compounded even further by the absence of evidence that the
     proposed standards are reasonably necessary to protect
     miners' health.  We agree that feasible measures should be
     taken to reduce DPM exposures, and we are proceeding with a
     plan to do that without additional regulations.  However,
     MSHA has agreed that the current risk assessments are
     subject to many uncertainties, and we do not believe it is
     possible at present to conclude with any reasonable degree
     of certainty that compliance with the standards MSHA has
     proposed, using only engineering controls, is truly
     necessary to protect miners' health.
                   As we've said several times, Greens Creek is not
     waiting for the results of additional research, and has been
     proceeding to develop and implement a feasible plan. 
     However, we urge MSHA to wait for more accurate feasibility
     and health data before adopting mandatory standards.
                   We look forward to working with MSHA and others to
     develop an approach that is truly feasible and necessary to
     protect the health of our miners.  Thank you for listening
     to us and we'd be glad to address any questions you have.  
                   MR. TOMB:  Thank you very much for your
     presentation.  
                   Any questions?  George?
                   MR. SASEEN:  Mr. Marshall, you stated that you're
     looking at putting filtration systems on 30 of your units? 
     Is that what you said in here?
                   MR. MARSHALL:  That's correct.  
                   MR. SASEEN:  Is that all -- I'm George Saseen.  Is
     that all your -- is that the total number of diesels you
     have in the fleet?
                   MR. MARSHALL:  No.  Under the -- when we gave you
     the written -- under our written notices, we have a list of
     all the units that we use on the ground, and I believe there
     are somewhere around about 55 units that we use.
                   MR. BLASE:  It is in the written comments that we
     submitted for the record.
                   MR. SASEEN:  Oh, okay.  
                   MR. TOMB:  Are those units all normally running in
     your operation?
                   MR. MARSHALL:  I beg your pardon?
                   MR. TOMB:  Are those units all normally running in
     your operation on a daily basis?
                   MR. MARSHALL:  No, they're not running all the
     time.  I would say that on an average day shift we would
     have at least 50 percent of those units running.
                   But I think the point to be made is that if one of
     the units that we are running breaks down and we need to
     replace it with another unit, then that unit has to have the
     same filtration --
                   MR. TOMB:  Yeah.  Yeah.
                   MR. MARSHALL:  -- just to be maintained at the
     same standards. 
                   MR. SASEEN:  Then there are 30 units or more
     production type equipment?
                   MR. MARSHALL:  Yes.  We have loaders, we have
     about five different types of loader underground.  We have
     five production trucks.  We have seven production -- seven
     backfill trucks.  We have diesel drill jumbos.  We have
     diesel roof bolting jumbos, and we have utility vehicles.  
                   MR. SASEEN:  I know I looked at that, but are
     there model numbers of the engines in that list?
                   MR. MARSHALL:  Yes.  
                   MR. SASEEN:  Okay.  Then I'll be able to go back.
                   MR. MARSHALL:  We've got a variation of Deutz,
     Perkins, Cat, Detroit Diesel, TCM and Kabolta.  
                   MR. SASEEN:  Okay.  
                   MR. MARSHALL:  Not all of them are of the large
     size.  Some of the utility tractors are small engines, and
     we probably wouldn't be looking to put any filtration onto
     those, but we have identified around about 30 units that we
     think we would need to put filters on.
                   MR. SASEEN:  Okay.
                   MR. MARSHALL:  The thing I would just like to add
     is these filters are enormous units.  They are about 30
     inches by 15-inch diameter.  So it's a very big unit and
     they are very, very fragile.  Taking them off and putting
     them back onto a unit is not going to be easy.  We will need
     a dedicated area.  But if we have some good results, I would
     be very interested to see what the results are out of it. 
     If we have good results, then it is probably the direction
     we would choose to go anyway.  
                   MR. SASEEN:  Have either you or Ms. Broschat, have
     you looked at our estimator to run any numbers knowing -- it
     looks like you've got a very clear picture of your
     ventilation and the units and knowing kind of what the
     efficiencies of these filters are.  Is that how you came up
     with the 30 units or have you done any numbers you could
     share with us on --
                   MR. MARSHALL:  No, we --
                   MR. SASEEN:  -- how the estimator worked?
                   MR. MARSHALL:  Just to start on the numbers, we
     chose the units that we considered will be the most --
     generating the most diesel particulates.  So we tackled the
     units that are producing probably 80 percent of diesel
     particulate matter.  
                   As far as the estimator is concerned, no, we
     haven't looked at that yet.  We received a copy of it over
     the last two weeks, and we haven't had a chance to look at
     it, but we will be quite happy to comment on it before the
     26th of July.
                   MR. SASEEN:  That would be interesting.
                   Do you have an electronic version of it?
                   MR. MARSHALL:  Yes, we do.
                   MR. SASEEN:  Okay.  Yeah, it would be interesting
     if you could, you know, put some of those numbers for your
     ventilation and your engine.  Usually if you go to the
     engine manufacturer, they can provide you some baseline
     engine data, and submit that.  That may be interesting to
     see how the feasibility of that would work out.  
                   Thank you.  
                   MR. FORD:  Mr. Marshall, again, the $16,000 filter
     per machine, is that purchase and installation cost?
                   MR. MARSHALL:  No, that's just purchase cost.  
                   MR. FORD:  So do you have any idea what -- and
     that's an average cost?
                   MR. MARSHALL:  No, that's the cost for the largest
     filter they do, which we would require on most of our units.
                   MR. FORD:  That's not the cost for all the filters
     on all the 30 units?
                   MR. MARSHALL:  No, it's the cost of one individual
     filter, and we haven't put any -- I haven't included in that
     cost the installation cost because we haven't got to that
     stage yet.  
                   MR. FORD:  If you ever get those numbers, can you
     provide them to us?
                   MR. MARSHALL:  Yes, we will certainly provide
     those numbers.
                   MR. FORD:  Okay, thank you.
                   MR. TOMB:  In your ventilation, is that exhaust
     intake ventilation that you're using?
                   MR. MARSHALL:  No, it's a --
                   MR. TOMB:  It's blowing.
                   MR. MARSHALL:  It's blowing from a fan down the
     tube and it blows across the face and then returns out
     through the main access.
                   MR. TOMB:  In that heading that I saw there,
     what's your average velocity in that entry?  That's not six
     meters a second?
                   MR. MARSHALL:  No, no.  The six meters per second
     would just be in the intake of the -- the main return
     airway.  We don't really talk in velocities across the face. 
     We're talking quantities, and there will be a minimum of
     30,000 cubic foot a minute going through that stope.  
                   MR. TOMB:  And you have about two to three units
     in there?
                   MR. MARSHALL:  Typically, we have one unit in
     there doing the jamming, and we would have anything of two
     to three trucks that will be feeding that unit.  We would
     have a jammer in there and a bulldozer and the trucks coming
     in and out.  The jammer and the bulldozer will be operated
     by the same operator who would turn off one unit before he
     turned on the other unit.
                   MR. TOMB:  Thank you.  
                   MR. HANEY:  When you've sent your samples in for
     the 5040 analysis, have you had them acidify the samples or
     remove the carbonate from the samples?
                   MS. BROSCHAT:  I don't have an answer for that
     question.  I'd have to contact the lab, the particulars of
     how they proceed.  I know they're -- it's Clayton
     Laboratories that we've used.  They are accredited to do the
     analysis.  But as far as the specific details of every step
     they take with the analysis, I haven't discussed that with
     them.  I can certainly find out though.  
                   MR. HANEY:  Okay, thank you.  Please do.  
                   MR. TOMB:  Jon?
                   MR. KOGUT:  Am I right in assuming that all of the
     samples in your tables that are not identified in the other
     tables, the ones that are not the comparison of using the
     cyclone versus not using it, that all the other samples did
     not use a cyclone?
                   MS. BROSCHAT:  That's correct.  
                   MR. KOGUT:  And so on the intake airway samples
     you said that most of the samples were four to six or six to
     eight hours.  Is that true of the intake samples as well?
                   MS. BROSCHAT:  Yeah.  Most samples were collected
     between six and eight hours.  I did take some specialized
     samples that were only collected for a few hours, but the
     goal in most cases was to collect from six to eight hours.
                   MR. KOGUT:  Okay.  And you also have the elemental
     carbon results for those samples?
                   MS. BROSCHAT:  Yes, I do.  I have everything.
                   MR. KOGUT:  Can you provide us with the -- I don't
     think you listed any of the elemental carbon results here.
                   MS. BROSCHAT:   No, I didn't.
                   MR. KOGUT:  We would appreciate receiving those in
     addition to the total carbon.  
                   MS. BROSCHAT:  I have all that data.  
                   MR. KOGUT:  Yeah, if you have the load on the
     filter, we'd like to get that also, although I -- yeah.
                   MS. BROSCHAT:  The load on the filter?  The weight
     of the material on the filter?  
                   MR. KOGUT:  Right. 
                   MS. BROSCHAT:  I don't have that information.  The
     Laboratory would probably be able to provide that, but I
     don't know that for sure.  I don't --
                   MR. KOGUT:  As an alternative to that, because we
     could back calculate it if you have the sampling time
     associated with the --
                   MS. BROSCHAT:  I have all that as well.
                   MR. KOGUT:  So I guess all you would need to
     provide us really is the sampling time associated with each
     sample and the elemental carbon result.  
                   MS. BROSCHAT:  Okay.  All these results have been
     adjusted for eight-hour time weighted averages in these
     tables.  But my raw data, of course, has my actual sampling
     times and elemental and organic carbon fractions.  
                   MR. TOMB:  What do you mean by adjusted?  Do you
     mean you divided everything by eight hours?
                   MS. BROSCHAT:  If it was a six-hour sample, I --
     in my summary, I explain --
                   MR. TOMB:  Oh, okay.
                   MS. BROSCHAT:  -- that the shift grading is in
     eight hours.  So the activities of the miner who is being
     sampled is essentially the same for the 10 hour - 11 hour
     period.  So if the sample is collected for six hours or
     seven hours, I just adjusted based on micrograms per cubic
     meter per minute, adjusted it up to eight hours so that I
     had a -- you know, so we were comparing apples and apples in
     the summaries.
                   MR. KOGUT:  Okay.  Is there only -- there is only
     one sample that you collected in an intake airway with the
     cyclone; is that correct?
                   MS. BROSCHAT:  No.  I collected -- I did a series
     of side by side or co-located samples in the intake airways
     and in the exhaust airways.  I also did a series of intake
     samples before I started doing the sampling with the
     cyclones.  There are two separate sets.
                   MR. KOGUT:  Okay, I only see one in the -- let's
     see, I guess it's Table VII.  There is one intake airway
     sample here that I see that was done with a cyclone.  
                   VOICE:  Which take is that?
                   MR. KOGUT:  Table VII.  That's the only one I --
     that's the only intake air sample that I see with a cyclone. 
     Where are the other ones?  
                   MS. BROSCHAT:  Oh, I see what you're saying.  I'm
     sorry.  
                   Yeah, in the group of samples that I did, the area
     samples both in exhaust and intake airways, I only did one
     set of intake airway samples with the cyclone.  That's
     correct.  I focused on the exhaust airways because the
     numbers were much higher than the intake airways.
                   MR. KOGUT:  What do you mean by one set?
                   MS. BROSCHAT:  Co-located.  One with the cyclone,
     one without.
                   MR. KOGUT:  Oh, okay, I see what you mean.  
                   MS. BROSCHAT:  And then the rest of the intake
     airway samples are in, I think, Table III.
                   MR. KOGUT:  Right, and those are all taken without
     a cyclone?
                   MS. BROSCHAT:  That's correct.  
                   MR. TOMB:  Do you have any other questions?
                   MR. KOGUT:  No.  Thank you very much.  I think
     this is very helpful, and I'm speaking on behalf of the
     committee that we really would appreciate getting the data
     that we asked for.
                   MS. BROSCHAT:  That's fine.  It's not a problem.
                   MR. TOMB:  Just one comment.  I understand that
     SKC is probably going to have those diesel particulate
     samples available at the IHA conference.  They are going to
     be displaying them, so you might want to get some of those.
                   Oh, yeah, this would be ones with the impactor, or
     you can get them without the impactor also.  Well, if you
     want the EI exchange, you will be able to see them.  They
     will be available.
                   AUDIENCE:  Excuse me, sir.  What did you refer to
     by way of samples that will be available?  Are they standard
     samples that we could use for comparison purposes?
                   MR. TOMB:  -- there was mention during this
     presentation that NIOSH is having a commercial unit built
     for diesel particulate sampling, and SKC is the manufacturer
     doing that manufacturing under that contract.
                   AUDIENCE:  I see.
                   MR. TOMB:  Yes?
                   MS. KING:  Excuse me.  Could you come to the
     podium, please?
                   MR. PERKINS:  I'm an official contractor with
     NIOSH for industrial hygiene chemistry.  
                   They are not certifying that sampler.  It has not
     been approved by NIOSH.
                   MR. TOMB:  No, I realize -- I realize that.  I
     don't think there is any requirement for approval.  I just
     know that under the NIOSH contract a commercial unit was
     built.
                   MR. PERKINS:  Well, they hammered me about that
     when I was back there, saying they're not approving it or
     anything because of part of the design they are trying to
     get them to change it to correct the design, and they said
     they might have it corrected by the conference.
                   MR. TOMB:  Okay.  
                   MR. CUSTER:  For the record, sir, what is your
     name?
                   MR. PERKINS:  My name is Jim Perkins.  I'm from
     DataChem Laboratories in Salt Lake City, Utah.  
                   MR. TOMB:  Okay.  I'll check with SKC when it's
     going to be available.
                   MR. MARSHALL:  Could I just take this opportunity
     to invite any member of the panel or MSHA that wanted to
     come and visit the operation to do so at any time.  And any
     of the information that we've provided to the Nevada Mining
     Association, as far as we're concerned, it's free
     information for anybody that wants to use it or look at it.
                   MR. TOMB:  Is it true that they use Kodiak bears
     in their mining operation?  That was a rumor that I heard
     from one of my co-patriots at the conference.
                   MR. MARSHALL:  What sort of bears?  Kodiak bears?  
                   No, we only have grizzly bears on the island.  
                   MS. KING:  Could we repeat the invitation for the
     record?
                   (Laughter.)
                   MR. MARSHALL:  I repeat the invitation and say
     that the salmon fishing is best in June and September.
                   (Laughter.)  
                   MR. TOMB:  Thank you very much for your
     presentation.  
                   Is Wes Ing still in the -- Wes?
                   MR. ING:  Yes.  
                   MR. TOMB:  Could you tell us if the risk
     assessment that you were talking about. a Doctor something?
                   MR. ING:  Dr. Borak.  
                   MR. TOMB:  Is that what it was, Dr. Borak?
                   MR. ING:  Yes.  
                   MR. TOMB:  Is this going to be presented at one of
     the hearings?
                   MR. ING:  No. 
                   MR. TOMB:  No.  
                   MR. ING:  It will be part of post-hearing
     comments.
                   MR. TOMB:  Okay.  Thank you.
                   (Comment from audience.)
                   MR. TOMB:  I made a record of that.
                   Our next presenter for Tg soda ash, Incorporated
     will be Mr. Pritchard.
                   MR. PRITCHARD:  Is this loud enough?  Can you hear
     alright?  
                   Good afternoon, panel.  My name is Christopher
     Pritchard.  You have my card so I'll let it go at that. 
     Thank you for giving me the opportunity to testify today.
                   Tg is the largest user of diesel face-haul
     equipment in the Wyoming trona operations with 124 units
     underground.  We mine approximately 2.5 million tons per
     year and employ 350 people.
                   Tg agrees that the issue of diesel emissions in
     underground mines needs to be addressed, but the proposed
     MSHA regulations are premature and go well beyond what is
     necessary.  
                   MSHA's conclusions are contradicted by over 20
     years of experience at Tg and in excess of 50 years in other
     trona mining operations.  There is no evidence of increased
     risk of serious health hazards due to diesel emissions,
     exposure in trona mining.
                   First, I'd like to talk about the scientific data
     and the subgroup here of the interpretation by MSHA.  
                   MSHA quotes that "... the Secretary must
     promulgate standards based on the best available evidence,"
     and cites multiple reports that admittedly find the weakest
     positive correlation with lung cancer.  Tg contends that
     analysis of a better source of best available evidence is
     the actual workforce in the mining industry.  This best
     available evidence indicates that there is not a problem
     with day-to-day exposure to present levels of diesel
     emissions.  
                   MSHA states that the risk assessment was peer
     reviewed.  Two individuals, Sammit and Burke, presented a
     joint report to MSHA, which was not published in any public
     forum as a formal peer review.  Effective peer review in the
     scientific community involves multiple reviews by competent
     professionals with no conflicts of interest in a public
     forum, not a private in-house review. 
                   So for MSHA to state that the proposal was peer
     reviewed is an exaggeration and gives a serious lack of
     credibility to MSHA's case.
                   Figure 3-2 of comparative exposures on page 58,149
     of the proposal shows ranges of average exposures to diesel
     particulate matter, DPM, in various metal/nonmetal mines. 
     Tg objects to this misleading figure for the following four
     reasons:
                   First, a graph of average exposure would more
     adequately represent overall exposure instead of extreme
     values.
                   Second, the data is not in the same units as data
     has been acquired since 1987 by different organizations
     utilizing different equipment and methods that cannot be
     compared.
                   Thirdly, Figure 2-1 on page 58,126 shows the size
     distribution of these particulates relative to other mining
     particulates, which are predominantly in the submicron
     range.  MSHA's Pittsburgh Tech Support sample diesel
     emissions in Tg mining sections during June of 1998, they
     measured three levels of particulates:  the submicron,
     respirable and total dust.  MSHA analyzed the samples with
     the 5040 method and, for example, obtained total results of: 
     for submicron, 224 micrograms; 430 micrograms for
     respirable; and 1,009 micrograms for total.  Obviously the
     adopted 5040 method is in error as the diesel emissions
     total carbon values should be essentially the same for all
     size ranges because DPM is almost entirely submicron.
                   This contraction is very troubling as the total
     dust sampling method is proposed by MSHA to initiate the DPC
     plan and write violations.  
                   The MSHA proposed method of using total dust
     measures over four times the total carbon levels as the
     submicron range for the same sample, which is correct.  This
     discrepancy must be answered for our operation to actively
     determine the actual DPM levels in our operation.  This
     cannot be done at the present time with the proposed method,
     invalidating the total framework of the proposal.
                   Fourth, the majority of information in the chart
     is represented in RCD units, which according to George
     Schmackenburg, overestimates total carbon exposures by 10 to
     35 percent.  Therefore, this table is not representative of
     the exposures of the different occupations shown or of the
     proposed total carbon levels.
                   The risk is overestimated due to using RCD units
     in comparison to total carbon units.  RDC units confuse the
     issue of actual or proposed mine DPM members.  The MSHA
     results shown on all the tables are very misleading.
                   Second, MSHA, the single sample proposal:  It is
     not a reasonable practice to place a mine on a minimum
     three-year diesel particulate control plan or write a
     violation based on a single sample.  Obviously, a single
     sample is not statistically significant or representative
     and cannot determine if the mine is out of compliance.
                   The proposal states, "The agency also has to be
     realistic about conserving the resources of its health
     professionals.  Resampling mines as control lines have
     expired, takes resources away from other priorities."
                   Is it acceptable to have industry spend many hours
     of time, effort and expense, but not MSHA?  
                   Later it states, "Documentation verifying the
     effectiveness of the plan in controlling diesel particulate
     to the required level would have to be maintained with the
     plan and submitted to MSHA upon request."
                   Tg questions why this is necessary as the
     information is available to the inspector every quarter. 
     Also, mines are required to show compliance with air quality
     standards under the Subpart D, 5002, which states, "Dust,
     gas emission and fume surveys shall be conducted as
     frequently as necessary to determine the adequacy of the
     control measures."  
                   Therefore, the DPC plan is not needed and provides
     an unnecessary burden on industry.  
                   MSHA states, "Verification by operators is being
     proposed to ensure that primarily responsible, those
     primarily responsible for ensuring the DPM control plan is
     effective is not shifted to MSHA."
                   This responsibility is currently required by the
     above-quoted statute and does not require duplication.
                   MSHA contradicts its point that a single sample
     should result in a citation and enrollment in a DPC plan by
     saying, "It takes multiple samples to demonstrate that
     miners are protected under the variety of conditions that
     can be reasonably anticipated in the mine."
                   MSHA should abide by the same logic.
                   MSHA states on page 58,116 that the 5040 method
     meets NIOSH's accuracy criteria that measures -- come within
     25 percent of the concentration at least  95 percent of the
     time.  This standard is for a known particle size
     distribution in a laboratory setting; not in a mine
     environment. 
                   Then on page 58,184 it states that, "The
     variability associated with the Method 5040 to be
     approximately six percent, one relative standard deviation." 
                   These do not compare.  
                   Then it states, "MSHA will issue a citation if the
     measured value was 10 percent over the established level."
                   There is a contradiction somewhere in the MSHA
     proposal.  How can MSHA take a 25 percent NIOSH laboratory
     criteria and shrink it to six percent in a mining
     environment?
                   Recently MSHA lost the coal mine single sample
     ruling in court.  A lesson should be learned and an
     equitable sampling method established.  Scientific accuracy
     and statistical techniques should not be sacrificed for ease
     of enforcement.
                   Third, the 5040 method:  MSHA quotes the NIOSH
     5040 method as being validated, but only part of it has been
     and only in laboratory conditions.  Considerable problems
     with the method, discriminating between other carbon-based
     mineralization, has been experienced by NIOSH in the '98-99
     in-mine surveys, which required many samples to be rerun.  
                   As previously discussed, MSHA conducted tests at
     Tg in June '98 that showed increasing total carbon with
     sample size, which is incorrect as DPM is primarily
     submicron.
                   Is the problem the method or the sampling
     technique?
                   MSHA relied on an unverified method in its
     proposal from NIOSH that was criticized by industry as
     "unverified" before it was put into use.  Not only did NIOSH
     not test its own method, but MSHA did not check NIOSH.  Tg
     will note this discrepancy here and let others familiar with
     the actual chemical analysis comment in detail on the
     specifics.
                   Tg suggests that with the significance of this
     proposed rule and MSHA's insistence on single sampling, that
     MSHA find a technique that is scientifically defensible
     first, as industry and the miners deserve.  
                   Part 48 training:  Required training may be
     addressed in existing Part 48 which presently covers health
     effects and is presently being done at our operation.  To
     apply a separate requirement for diesel is redundant and
     sets a bad precedence.  Other improvements, serious safety
     and health problems are presently adequately covered in Part
     48.
                   Equipment examination and recordkeeping:  Proposed
     equipment tag-out and recordkeeping can be met by existing
     mobile equipment examination standards and maintenance work
     order systems.  Additional standards are not needed.
                   Tg suggests that by rigorous enforcement of
     existing TLB and air quality rules and by utilizations of
     recommendations in the diesel toolbox, adequate safety
     levels can be maintained per the requirements of the Federal
     Mine Safety and Health Act of 1977.  Most complaints made at
     public hearings regarding diesel emissions are caused by
     mining situations that MSHA is well aware of, or should be,
     such as long-wall move, and should be addressed by spot
     inspections or miners' complaint investigations, not by new
     regulations.
                   MSHA should wait for the results of the NIOSH
     study that is still in progress which will offer definitive
     data on the actual mining population, offer best available
     evidence, not a biased view of various academic studies.
                   MSHA should parallel its efforts with OSHA, EPA
     and engine manufacturer testing that is in progress,
     upgrading available diesel engines, fuel and emissions
     control, not establish controls that will isolate the mining
     industry from future improved technologies.
                   Tg will submit additional comments on the proposal
     before the July 26, '99 deadline, and we also support the
     input from the members of MARG Group, and the National
     Mining Association, and would also like to raise a few
     points for the record.
                   MSHA has published five figures in the proposed
     metal/nonmetal rule, and the same materials in the coal rule
     that purport to describe mining industry DPM exposure and
     compare them to other industries.  There is 1-1, 3-1, 3-2,
     3-3, 3-4 on pages 58,147 to 58,151.  The data appears wrong
     and should be withdrawn since MSHA cannot explain the
     following points:
                   How to reliably relate reported 1977 DPM exposures
     when the proposed NIOSH 5040 Method did not exist in 1977
     and there is no correlation to any other method;
                   Why it took months to produce the underlying study
     and data in response to a Freedom of Information Act request
     and the ultimate response still did not identify precisely
     which studies and data were used and how they were used;
                   How can MSHA extrapolate data from 11 surface
     mines, 12 underground coal mines, 25 underground
     metal/nonmetal mines to the 15,000 mines that use diesels,
     or even to the 216 metal/nonmetal underground mines that
     include 35 to 40 commodity types with inherent laboratory
     analysis problems;
                   How can MSHA report any exposures without
     accounting for the known interferences from at least 175
     carbonaceous ores, oil mist, cigarette smoke, the sampling
     cassettes and filters, all of which have been shown to
     preclude accurate and useful DPM exposure assessment;
                   How can MSHA use studies and data based on the
     results of respirable combustible dust sampling and
     submicrometer respirable particulate sampling that
     acknowledge that these methods are flawed and do not produce
     accurate, reliable results;
                   And last, how can MSHA use data from area sample
     studies that have no relationship to employee exposure to
     describe the exposure of individual miners.
                   And unless MSHA can answer these questions in
     detail and make the answers available for public comment,
     the flawed tables must be withdrawn from the public record.
                   Thank you for your time.  I'll take your
     questions.
                   MR. TOMB:  Thank you, Mr. Pritchard for your
     presentation.
                   Any questions?
                   MR. KOGUT:  I was a little mystified by your
     reference to the 1977 data.  What are you referring to?
                   MR. PRITCHARD:  That probably 1987 since that's
     when the Bureau of Mines' numbers came.  That's what I'm
     guessing.  I don't know when the 1977 numbers would have
     been either.  I remember reading that but I think it is --
     1987 is the stated date in the proposal that the sampling
     data was drawn from, that point onwards.  
                   MR. TOMB:  1977?
                   MR. PRITCHARD:  1987.
                   MR. TOMB:  Oh, '87.
                   MR. PRITCHARD:  So that's probably the number
     referred to in the sheet.  
                   MR. TOMB:  Any other questions?  
                   MS. WESDOCK:  Can we have a copy of your
     testimony?  
                   MR. TOMB:  I have one.
                   MR. PRITCHARD:  You have one.
                   MS. WESDOCK:  Oh, you do?  Okay.
                   MR. TOMB:  I have a copy.  
                   MR. FORD:  Does it state in there the tag-in/tag-
     out relations that you say are sufficient, that are
     currently in use?
                   MR. PRITCHARD:  I didn't make any reference to any
     tag-in/tag out.
                   MR. FORD:  Okay.
                   MR. PRITCHARD:  We have standards and procedures
     that are already required that will very well meet this
     requirement, the pre-shift examination of equipment plus
     existing maintenance work order systems that we presently
     use and work very well.  As far as -- you're asking us to
     make records of all this separately, and we have a system
     that works well for us.  Why duplicate it?  
                   MR. FORD:  I guess I'm getting at -- you're
     saying, you're saying that our tag-in/tag-out provision is
     not needed because I thought, maybe I misunderstood you,
     there are current existing standards that will cover that?
                   MR. PRITCHARD:  Right. 
                   MR. FORD:  What are those existing standards? 
     75.360?
                   MR. PRITCHARD:  I don't know the number but the
     operator is required to make a check of his equipment before
     it's operated and make a record of that.
                   MR. FORD:  Okay.  You're talking about under the
     diesel safety rule?  
                   MR. PRITCHARD:  Metal/nonmetal equipment
     operation.  Yeah, equipment inspection.
                   MR. FORD:  Okay, thank you.
                   MR. TOMB:  Mr. Pritchard, we can make a copy of
     the reports that we have to make them available to you on
     this if you want to review that, the tables more thoroughly. 
     We've gone through this from a lot of requests, and I
     haven't heard the same --
                   MR. PRITCHARD:  Well, I'm specifically troubled by
     just the individual Tg numbers.  I finally found out which
     mine we were in there, and they look entirely higher than
     the results we've seen.  They're looking at around 800 to
     1,000 micrograms, and the numbers I have seen in the last 
     couple tests are in the submicron range around 200.  So I
     don't know what numbers were used.  Is it total?  Is it --
     so it seems like the numbers are either artificially high or
     some other -- I don't understand how they were derived.
                   MR. TOMB:  Okay.  We could go back and check that.
                   MR. PRITCHARD:  Okay.  I've understood last --
                   MR. TOMB:  I know I've looked at the report from
     your mine several times to clarify questions that came into
     the office, and I thought we had them pretty much clarified.
                   MR. PRITCHARD:  I'll go dig them out when I get
     home too.
                   MR. TOMB:  Okay, we can get back to you on that
     one.
                   MR. KOGUT:  It seemed as though the comments that
     you made just now diverge towards the end a little bit.  You
     added some material from what you --
                   MR. PRITCHARD:  I've got some additional things at
     the end.  Yes, I don't have any spare copies of that.
                   MR. KOGUT:  Okay.  Could you submit a copy?  Could
     you mail us a copy?
                   MR. PRITCHARD:  Yeah.  
                   MR. TOMB:  Any other questions?
                   (No response.)
                   MR. TOMB:  Okay, thank you very much.
                   MR. PRITCHARD:  Thank you very much.
                   MR. TOMB:  Our next presenter will be from FMC
     Corporation, Mr. Rowdy Heiser.
                   Did I pronounce that correctly?
                   MR. HEISER:  I also have with me Terry Adcock of
     OCI and Kent Adamson from Solvay Mineral, and Henry Chajet.
                   MR. ADAMSON:  Good afternoon.  My name is Kent
     Adamson.  I'm a Certified Industrial Hygienist and a
     Certified Safety Professional.  That's K-E-N-T 
     A-D-A-M-S-O-N.  I am the Safety and Health Supervisor for
     Solvay Minerals Corporation.  We operate a trona mine in
     Green River, Wyoming, which employs approximately 159
     employees that are underground miners, and uses about 89
     pieces of diesel equipment underground.
                   As Rowdy indicated today, we've got himself and
     FMC and Terry Adcock with OCI.  Both of their companies also
     operate trona mines, and together we represent the MARG
     Diesel Coalition, and we are accompanied here today by the
     coalition's counsel, Henry Chajet.
                   The coalition will file written comments in
     response to the standards proposed by MSHA concerning
     workplace exposures to diesel particulate matter.  
                   Our testimony today is intended to summarize our
     concerns.
                   The coalition's members include mine operators
     whose mines and employees are the subject of the
     collaborative study of diesel particulate exposure being
     conducted by NIOSH, which is the National Institute of
     Occupational Safety and Health, and NCI, the National Cancer
     Institute, and also an independent parallel study funded by
     the coalition.  
                   The multimillion dollar NIOSH/NCI study addressed
     by the last two congressional appropriation reports is
     designed to measure current diesel exposure, estimate past
     exposures and evaluate past and current health effects.  The
     study was undertaken because existing science is at best
     inconclusive.  For this and other reasons that we will
     address, the coalition requests that this rulemaking be
     postponed until after the completion of the NIOSH study.
                   The coalition's members include producers of
     limestone, salt, trona and potash that utilize diesel
     equipment in their underground mines and compete on the
     world markets to sell their products.
                   MARG members are committed to the protection of
     their employees and to the environment.  We are
     participating voluntarily in the NIOSH/NCI study because of
     the public concerns raised over the potential health effects
     of diesel exhaust.  We recognize the concerns of employees
     that have been raised by the inflation of the NIOSH research
     and MSHA's proposed rules.  
                   In response to these concerns, MARG commits to the
     following guidelines that will be utilized until the
     completion of the NIOSH study and during the requested
     postponement of this rulemaking.
                   During the period while the health effects of
     diesel exhaust are subject of research and regulatory
     review, we will take the following voluntary actions to
     protect our employees:
                   One, we will identify the source of diesel
     exhaust.
                   Two, we will identify the current methods that
     control exposure of miners to diesel exhaust.
                   Three, we will establish an employee and employer
     communication and training effort within the context of
     MSHA's Part 48 training sessions aimed at diesel exhaust
     exposure control.
                   Four, we will examine and adopt technically and
     economically feasible methods of further controlling diesel
     exhaust.
                   And, five, monitor gaseous diesel exposures as
     frequently as necessary to evaluate the adequacy of control
     methods and to assist in developing effective monitoring
     methods.
                   The coalition is uniquely qualified through its
     members experienced in diesel research and use to provide
     comments on these proposed rules.  Based upon its expertise,
     the coalition believes that the proposed rules are not
     supported by substantial or credible evidence.
                   Diesel exhaust is a complex mixture of gasses and
     fine particulate matter emitted by diesel fuel engines.  The
     composition of diesel exhaust can vary, depending upon many
     factors, including engine type, operating conditions, fuel
     consumption, the variety of lubricating oil that is used,
     and whether the engine is fitted with an emission control
     system.  
                   There are many individual exhaust components that
     can be used as surrogates to estimate exhaust exposure
     levels.  The gaseous fraction of diesel exhaust is composed
     of combustion gasses, including nitrogen, oxygen, nitrogen
     oxide, carbon monoxide, sulfur oxide, carbon dioxide and
     water vapor.  These gasses are subject to current MSHA
     exposure limits and controls.  
                   Unfortunately, MSHA has not conducted any
     scientific analysis to determine whether protection beyond
     current exposure limits is needed.
                   Diesel exhaust also contains elemental carbon
     which can range from .01 to .08 microns in diameter. 
     Another carbon particulate, depending upon the type,
     condition and use of the engine, the contribution of organic
     particulate to the total diesel particulate matter ranges
     from 10 to 90 percent.
                   It is the total carbon content of the diesel
     exhaust which MSHA has proposed to regulate in its
     metal/nonmetal rulemaking as a surrogate for overall diesel
     exhaust exposure.
                   While MSHA concedes that it cannot measure diesel
     exhaust carbon in coal mines due to the interference of the
     carbon mineral, it ignores the same and other feasibility
     problems in metal and nonmetal mines that have carbonaceous
     minerals.  
                   The coalition has taken over 1,000 samples in its
     mines that demonstrate the lack of feasibility of MSHA's
     proposed rule.  We will be submitting for the record written
     comments which document this problem.  
                   Existing science does not support MSHA's finding
     that diesel particulate matter is a human carcinogen. 
     Neither the EPA nor OSHA agree with MSHA's findings, nor
     does current science support the proposition that diesel
     particulate matter exposures at or above the proposed
     concentration level in the metal/nonmetal rule are injurious
     to employees, or that exposures at or below the proposed
     concentration limit will be protective of workers' health.
                   Again, neither EPA nor OSHA agree with MSHA's
     unique interpretation of the science or with MSHA's
     determination of the need for such standards.
                   For the first time a federal regulatory agency has
     sought to place occupational exposure limits on the
     particulate matter produced by diesel engines.  By this
     action MSHA has ignored the regulatory plans of EPA and
     OSHA; has gotten ahead of the public debate on diesel
     engines, propose to set two new national standards, a 95
     reduction of particulate matter for coal industry diesels,
     and a 1.6 milligrams per cubic meter, eight-hour exposure
     limit for the rest of the mining industry.
                   By this precipitous action, MSHA bypasses the
     congressionally directed multimillion dollar study by NIOSH,
     which is the federal agency charged with determining whether
     diesel exhaust even poses an occupational hazard, and if so,
     at what level of exposure.
                   The lack of positive findings in the scientific
     literature is the very reason that NIOSH and NCI have
     invested millions of dollars this decade to conduct their
     definitive study of diesel exhaust.  The purposes of the
     mining industry study are to determine whether or not a
     significant risk of adverse health effects exists, what
     those health effects are, if any, what they might be, and
     what level of exposure might cause health effects. 
                   Simply stated, MSHA's proposal is premature,
     contrary to the scientific evidence, and inconsistent with
     the positions of the primary federal agencies charged with
     regulating diesel exhaust.
                   I would like to turn the time over to Terry
     Adcock.  
                   MR. TOMB:  Do you mind if we ask you questions of
     your part?
                   MR. ADAMSON:  Not at all.  
                   MR. TOMB:  Okay.  
                   MR. KOGUT:  I have -- thank you.  I have two
     questions.  
                   First, on page 4 of your -- of the write-up of
     your presentation, 4 and 5, you say that we propose to
     regulate total carbon as a surrogate for overall diesel
     exhaust exposure.  And I don't understand where you got that
     impression.  My impression of the regulation is that it's a
     regulation of diesel particulate, so you might say that
     we're using total carbon as a surrogate for diesel
     particulate, but why are you saying as a surrogate for
     diesel exhaust? 
                   MR. ADAMSON:  Well, I guess that's just a matter
     of semantics there.  
                   MR. KOGUT:  But it's not just a matter of
     semantics because you are very specifically including in
     your definition of diesel exhaust all the gaseous components
     of diesel exhaust, so it makes it appear when you say that
     as though we're using total carbon as a surrogate for all of
     these gaseous components in addition to the diesel
     particulate, and I don't think we said anything in the
     proposal that ought to convey that impression.
                   MR. ADAMSON:  Well, Henry, do you want to comment?
                   MR. CHAJET:  We think your rule is aimed at
     regulating diesel exhaust.  That's the way the rule reads to
     us, number one.
                   Number two, you're using diesel particulate matter
     as a surrogate to measure diesel exhaust. 
                   And, number three, you're using total carbon as a
     surrogate to measure diesel particulate matter.  You
     followed that three of analysis, the way we read it.  Your
     scientific analysis of the literature is not based on
     elemental or total carbon.  It's based on diesel exhaust. 
     Your analysis of the exposure levels is not based on total
     carbon or elemental carbon.  It's based on RCD or submicron
     or NO2 samples or whatever else you had that was out there
     in the record that was old material.
                   So we believe what you're doing is trying to
     regulate diesel exhaust by setting up a surrogate, diesel
     particulate matter, which you also can't measure, and then
     setting up a secondary surrogate of measuring total carbon,
     which you also can't measure.  
                   MR. KOGUT:  Well, I think the some clarification
     is in order on this, I think, because the risk assessment,
     two of the -- two components or two parts of the risk
     assessment, two of the material impairments that we identify
     relate to fine particulate, of which diesel particulate is
     one type. That's particulate; it's not anything to do with
     the gaseous part of diesel exhaust.
                   And the portion of the risk assessment that deals
     with lung cancer or effects more generally, acute and
     chronic effects of diesel particulate, I think there was
     some effort made to identify diesel particulate -- there was
     evidence in rat studies and so forth showing that it's the
     particulate fraction of the diesel exhaust that's
     responsible.
                   So I think that some effort was made in the risk
     assessment to specify diesel particulate as being what we
     were aimed at regulating, not diesel exhaust in general.
                   MR. CHAJET:  I think it's a matter of semantics
     and surely you're aware of the overwhelming science that
     says rat studies can't be extrapolated.  Surely MSHA is
     aware of that science.  I mean, there is no question about
     that.  It's been alluded to by every reputable scientist in
     the world.  
                   MR. KOGUT:  Well, I think that that's --
                   MR. CHAJET:  And you must be aware of it too.
                   MR. KOGUT:  I think that's addressed in the risk
     assessment, and if you read the risk assessment, I think
     you'd see that we are aware of that part of the rat studies
     that, you know, we think are relevant, and that part which
     we think are not so relevant.  
                   But anyway, just as a point of clarification, I
     don't think that there is really anything in the proposal as
     drafted that would indicate that our aim is to regulate
     total diesel exhaust.  
                   MR. CHAJET:  It certainly appears that way to us. 
     In addition to that, we think it's also your statutory duty
     to make a determination that current standard so not provide
     the degree of protection required, and the current standards
     are the standards for the gaseous portion.  The particulate
     matter is a very tiny fraction of the overall exhaust, and
     we think you have to make a determination that the current
     standards do not provide protection.  We think that's part
     of your regulatory duty.  
                   MR. KOGUT:  Okay, I have one other question, which
     is that you mentioned you're undertaking -- MARG is
     undertaking a parallel study in parallel with the NIOSH/NCI
     study, and I'm wondering whether in doing -- the purpose of
     that is, I gather, also to do ultimately an epidemiological
     study based on the data that you collect; is that right?
                   MR. ADAMSON:  Yes.  
                   MR. KOGUT:  And what sorts of measurements are you
     taking?  NIOSH, for example, is taking total carbon and
     elemental carbon measurements and some other sorts of
     measurements.  What measurements -- are you taking any
     measurements to -- that would specifically address the
     problem with interferences and so forth that I guess you're
     saying are potentially going to cause problems in the
     NIOSH/NCI study?
                   MR. ADAMSON:  Yes, we're taking a whole gamut of
     them, from the SO2, NOX, to elemental carbon, RCD.  We have
     impactors that Kennecott referred to that we plan to use,
     looking at all different surrogates that NIOSH is proposing. 
     We've went to the analytical laboratories, Clayton.  We
     watched them process the samples.  We've seen the
     thermographs.  We've seen the problems that are inherent
     there.
                   You mentioned earlier today that -- the last one
     of the presenters if they have seen whether the chemist will
     put it into the manual mode based upon some of their
     observations.  We have an issue with that.
                   Here you are requiring us to comply with the
     standard that you could issue citations on based on an
     analytical method that is, at the most part, at the
     analyst's discretion, whether he says, "Oh, I think it's
     burnt off 900 degrees, I'm going to mark it here."  There is
     a lot of room for error there.  So we've seen some of these
     things, and these are some of the concerns that we have with
     the method.
                   In addition to that, we've looked at the lack of a
     standard.  How do you calibrate these instruments?  There is
     no known standard.
                   MR. KOGUT:  Well, I"m a little puzzled about what
     you're saying because you're telling us that on the one hand
     that we should wait until we get the results of the
     NCI/NIOSH study.  On the other hand you're saying that the
     measurements that they're using -- the primary measurement
     that they are taking of diesel particulate is kind of
     hopelessly diluted by sources of interference.
                   MR. CHAJET:  You're combining two problems.  The
     first problem is that the NIOSH study will determine whether
     there is any excess risk of any end points of suspected
     disease, okay.  That's the first part.  That study will be
     available relatively soon: whether there is nay excess risk
     of any suspected end point of disease.
                   The second part of that study involves
     measurements and NIOSH is working very hard, as is the
     coalition, and examining the various methods of measurement
     that have been suggested be employed in measuring diesel
     exhaust or particulate matter from diesel exhaust.  And in
     examining those methods, I believe both NIOSH and ourselves
     have verified the information that you heard from Mr. Rose
     earlier today.
                   But you're confusing two parts of the study, and
     two parts of MSHA's duty.  The first part of MSHA's duty, is
     there a health risk.  NIOSH wouldn't be doing this
     multimillion dollar study if they knew the answer to that. 
     In all their published documents they recite that they
     didn't know the answer to that, and that's the very first
     part of the congressionally funded study.
                   MR. TOMB:  Well, one point of clarification.  I
     think NIOSH has come out on considering diesel exhaust a
     potential carcinogen.  I don't think that's in doubt.  They
     published that.  
                   The premise for the study that you're conducting
     is to see if you can get a dose/response relationship so
     they can find or predict what a safe level would be for
     exposure, and that's the premise for the study.
                   MR. CHAJET:  I'm very sorry, Mr. Tomb, I think you
     should read the protocol.
                   MR. TOMB:  I have read the protocol.
                   MR. CHAJET:  The premise for the study, number
     one, is to determine whether there is an excess risk of any
     known end point potentially suspected disease.  That's why
     they are collecting health information, death certificates,
     and conducing an epidemiological study.
                   MR. TOMB:  I totally agree, but that's just one
     small body of information that's going to be put in --
                   MR. CHAJET:  Probably $20 million dollars worth.
                   MR. TOMB:  -- with the others.  Well, it's true.
                   Are you done with your questions?
                   Mr. Adamson, also on page 4, could you provide a
     reference where you're stating that the ratio between
     organic particulate matter goes from 10 to 90 percent for
     diesel exhaust, if you could supply that.
                   MR. ADAMSON:  We can provide that to you in our
     post-submission.  You bet.
                   MR. TOMB:  Okay.  On page 5, is there something in
     writing that substantiates that neither EPA nor OSHA agree
     with MSHA's unique interpretation of the science or with
     MSHA's determination of the need for such a standard?
                   MR. CHAJET:  Yes.  Their absolute science in not
     proposing a similar rule.  
                   MR. TOMB:  No, I was asking of there was something
     in writing.  That didn't answer my question.
                   MR. CHAJET:  I think their absolute silence speaks
     very loud that MSHA is acting on its own.  OSHA is the
     primary agency for safety and health in the United States. 
     They've proposed no rule.  They have tunneling at issue with
     substantially higher exposure levels than anything you have
     seen, and they are not proposing any rule.  
                   MR. TOMB:  Okay, so there is nothing in writing
     that states that is what you're saying?
                   MR. CHAJET:  There is certainly is EPA material in
     writing postponing levels of diesel exhaust for non-road
     equipment, yes.  There is that written material.
                   MR. TOMB:  That wasn't my question.  My question,
     again, let me clarify, Mr. Adamson.  Is there something in
     writing from either EPA or OSHA with respect to your
     statement?
                   MR. ADAMSON:  Yes, we'll provide the EPA written
     comments to you.  
                   MS. WESDOCK:  As well as OSHA's?  
                   MR. ADAMSON:  As well as OSHA's?
                   MR. TOMB:  Whatever you have that states --
                   MR. ADAMSON:  Yeah, whatever we have to support
     it, we will send it.
                   MR. TOMB:  Yes, whatever you have --
                   MS. WESDOCK:  Okay.
                   MR. TOMB:  -- to support it; that's fine.
                   MR. ADAMSON:  You bet.  You bet.
                   MR. TOMB:  That's all.  
                   Any other questions?
                   (No response.)
                   MR. TOMB:  Okay.  You're next, sir.  Your name for
     the record too.  Could you state it or restate it, please?
                   MR. ADCOCK:  My name is Terry, T-E-R-R-Y, Adcock,
     A-D-C-O-C-K.  I am the Safety Superintendent for the OCI
     Mine located in Green River, Wyoming.  It's an underground
     trona mine.
                   We employ approximately 140 employees underground
     at our operation, and we operate approximately 80 pieces of
     diesel equipment underground.  
                   Similar to Mr. Adamson, I am also a Certified
     Safety Professional with over 20 years of underground mining
     experience split basically between underground coal and
     underground metal and nonmetal.
                   In promulgating a health standard, MSHA is bound
     by the statutory provisions of Section 101 of the Mine Act,
     which requires the agency to demonstrate that its standard,
     "(a) is needed to protect against a significant risk of 
     material impairment of health; (b) is based upon the best
     available evidence; (c) is consistent with the latest
     available scientific data in the field; (d) is technically
     and economically feasible; (e) is based upon experience
     gained under the Mine Act and other health and safety laws;
     and (f) provides significant benefit."
                   The recent National Mining Association decision by
     the Eleventh Circuit Court of Appeals clearly sets forth
     MSHA's regulatory duties, and the coalition urges MSHA to
     follow the decision.
                   MSHA lacks a sound scientific basis for its
     proposed rule.  As discussed in the comment of Dr. Jonathan
     Borak that will be submitted for the record by the National
     Mining Association, and adopted by the coalition, there is
     no evidence whatsoever in the record to support MSHA's
     proposed exposure limits.  
                   Both the existence and the magnitude of health
     risk associated with occupational diesel exhaust exposure
     are currently the subject of scientific debate.  The current
     scientific controversy involves whether animal studies or
     limited and contradictory epidemiological data can be used
     at all to establish risk.  There is no doubt that there is
     no scientific basis to set an exposed standard.
                   When using available diesel epidemiological data
     for risk analysis, MSHA must consider: "(1) the changing
     nature of diesel emissions.  Current exposures are not
     analogous to those in the 1950s; (2) the lack of actual
     exposure data in virtually all human studies; (3) the need
     to update and validate some of the key studies," again in
     parentheses, "(the current ongoing NIOSH/NCI study); and (4)
     the fact that a dose response assumptions in the current
     epidemiological studies are universally based upon
     questionable models."
                   Despite these problems, MSHA has relied
     selectively on some of the old and suspect research while
     ignoring the mining industry's specific studies and the
     latest scientific evidence that contradicts the suggestion 
     of health effects from DPM exposure.
                   NIOSH has a specific statutory role in the MSHA
     regulatory scheme.  The Mine Act mandates that the
     Department of Health and Human Services, acting through
     NIOSH, conduct research, including development of
     epidemiological information to identify and define factors
     involved in occupational disease of miners; and to improve
     mandatory health standards.  
                   Through its collaborative diesel study within NCI,
     NIOSH is engaged in fulfilling this mandate for diesel
     exhaust.  MSHA's proposal violates the Mine Act by ignoring
     the best available evidence and by preempting the NIOSH
     study.
                   MSHA must also comply with the requirements of the
     Small Business Regulatory Enforcement Fairness Act and the
     Regulatory Flexibility Act, which require initial and final
     regulatory flexibility analysis and consideration of
     alternatives to minimize the economic impact on small
     entities, including the establishment of differing
     compliance requirements.
                   These statutes are violated by MSHA's failure to
     analyze the protected nature of current standards that
     govern diesel exhaust gasses, MSHA's refusal to recognize
     alternative protective means, such as personal protective
     equipment, and the serious flaws in MSHA's economic and
     technical feasibility analysis.
                   We note that the agency has improperly minimized
     the true impact of the proposal on small business entities
     by failing to include many factors (such as fuel cost
     increase), the need to replace rather than retrofit most
     large diesel-powered engines, and the impact of the rule on
     equipment resale value.
                   The agency also masks the true economic impact on
     the mining industry by bifurcating the rule.  
                   Ninety-eight percent of coal companies have fewer
     than 500 employees, and 96 percent of the metal and nonmetal
     mines fall within this classification of small business,
     protected by the statute.
                   MSHA acknowledges that 196 of the 203 metal and
     nonmetal mines covered by the proposal have fewer than 500
     employees.  MSHA's data, demonstrating a massive decline in
     the number of underground mines in the United States since
     the passage of the Mine Act, must be considered by the
     agency in the context of the large cost that will impose on
     the remaining segment of the industry by these rules.
                   These laws also provide for congressional review
     of federal agencies' regulations whenever a rule will have a
     major impact on an industry or will affect competition,
     productivity or international trade, and they specify that
     rules cannot go into effect until congressional review is
     complete.  
                   The coalition believes that the diesel particulate
     rule, if adopted, will indeed have a major impact and must
     therefore be submitted by MSHA to Congress for review prior
     to implementation.
                   We also believe that this rule must be submitted
     to the Small Business Administration for that agency's
     review and comment.  
                   Although MSHA estimates the cost of metal and
     nonmetal rule to be approximately 19 million per year, and
     the cost of the coal rule to be approximately 10 million per
     year, the coalition believes that the cost of the metal and
     nonmetal rule alone will exceed $100 million, making this a
     major rule subject to congressional review.
                   For the record, we and the National Mining
     Association will submit an economic analysis conducted by
     Harding Lawson Associates to demonstrate these flaws in the
     proposal.
                   Requiring the 95 percent reduction in DPM
     emissions for the coal industry and mandating a .4 milligram
     interim total carbon PEL, and a .016 milligram permanent PEL
     for metal and nonmetal mines may be laudable goals, but
     after establishing risk and benefits to justify these
     specific levels, MSHA must demonstrate technological
     feasibility through published facts and peer review studies,
     i.e., field tests.  MSHA may not simply assume feasibility
     as it has in the proposal.
                   There are many technologies that have been
     proposed to address DPM reduction, but the efficiency of
     these technologies in the underground mining environment
     where technologies are not transferable between coal and
     metal and nonmetal mines and between small and large engines
     is unproven.  
                   Most of the technological developments are being
     driven by the regulatory agenda of the Environmental
     Protection Agency.  However, EPA will not implement its
     revised emission reduction requirements for on-road diesel
     engines until 2004, and will not finalize tier two
     regulations for non-road diesel equipment until 2006.
                   OSHA, which like MSHA regulates diesel exhaust
     gasses, is not proposing DPM regulations at this time.  It
     makes more sense for MSHA to coordinate its activities with
     those of the EPA and OSHA with respect to off-road diesel
     engines to ensure that the technology required of engine and
     fuel producers is consistent and rationally related to
     hazards.  
                   The coal rule emphasizes on a mandatory percentage
     reduction in emissions is illogical since it has no uniform
     absolute benchmark.  It actually creates a disincentive to
     reducing DPM or replacing a fleet with newer, cleaner
     engines since the mine operator's ability to reduce
     emissions by 95 percent becomes more difficult the lower the
     emissions are to start with.
                   The coal rule, as proposed, rewards those who have
     older, less clean engines, and penalizes the cleaner fleets. 
     The metal and nonmetal proposal for total carbon
     concentration limits, not based on risk assessment, is
     equally flawed since the sampling methods will not
     distinguish between diesel-produced carbon and carbon from
     other sources, and the availability of equipment or
     operating changes have not been demonstrated to reduce
     exposure to proposed levels.
                   MSHA's approach could have other unforeseen
     hazards.  One paradox is that the emission controls and
     technologies that lower CO and hydrocarbon levels tend to
     increase the NOX and particulate matter levels, particularly
     levels of submicron particles that are suspected of being
     greater hazards than larger particles.
                   Those diesel engines that offer the best fuel
     economy also tend to have higher NOX levels.  More research
     is underway to develop advanced engine fuels, after
     treatment systems that can reduce NOX and DPM emissions
     while maintaining fuel economy and low CO and hydrocarbon
     levels.
                   EPA and OSHA's approach will permit this research,
     while MSHA's is on the verge of mandating nonproven
     technology to meet an arbitrary exposure level that cannot
     be measured.  
                   There also is a concern that proposed efforts to
     reduce particulate emissions from diesel engines will have
     unanticipated consequences, such as increasing emission of
     other species.  
                   Their presentation of diesel issues in April 1999,
     the Health Effects Institute, HEI, stated:  "Despite a
     substantial reduction in the weight of total particulate
     matter, the number of particles emitted from new, heavy-duty
     diesel engines is actually higher than the number emitted
     from an older model engine due to an increase in the number
     of small nuclei mode particles.  These results are of a
     concern because the smaller particles in emissions are more
     likely to be trapped and retained in the human lungs."
                   Again, this is from Kathleen M. Naus, Diesel
     Engine Emissions, Health Effects Issues, and it was
     presented at the 1999 Diesel Issues Forum, Pentagon City,
     Virginia.
                   HEI recommends that dialogue between health
     sciences, engineers and regulators is needed to determine
     whether characteristics of particles, such as number,
     density, surface area, shape and chemical composition, may
     be more relevant in causing health effects than measures of
     mass.  In light of this latest scientific evidence, it is
     imprudent for MSHA to adopt a regulation on DPM emission
     reduction at this time.  
                   Regardless of the percentage reduction or
     concentration limit that ultimately may be specified, the
     results of such an action from a health perspective are
     unknown and cannot be justified, explained or scientifically
     analyzed.  MSHA has not adequately explained neither the
     benefits or the technological or economic feasibility of its
     mandated reductions.
                   And at this time I would like to turn it over to
     Mr. Rowdy Heiser from FMC. 
                   MR. FORD:  I've just got one question, I guess.
                   The study by Harding Lawson Associates that you
     referred to, is that the study that was given earlier today?
                   MR. ADCOCK:  Yes, sir, it is the study.
                   MR. FORD:  So when you say they are going to
     provide more when they finalize that study, that's what
     you're talking about?
                   MR. ADCOCK:  Yes, sir.  
                   MR. FORD:  And one other question.  Do you have
     any -- and that study will talk about fuel costs and fuel
     cost increases also?  
                   You mentioned that a cost of the rule that was
     ignored was fuel cost increases.  That study by Lawson will
     address the --
                   MR. CHAJET:  We're not sure if it looks at that or
     not.
                   MR. FORD:  Okay, thank you.  
                   MR. SASEEN:  On page 12, you talk about emission
     controls that -- it was CO, NOX particulate.  Could you
     submit any of your evidence that supports those statements? 
     Research that shows, you know, that these technologies are,
     you know, the trade-offs are the way they are from what you 
     state in your document here?
                   MR. ADCOCK:  Yes.  
                   MR. SASEEN:  Okay, thank you.  
                   MR. TOMB:  Okay, thank you very much.
                   MR. HEISER:  My name is Rowdy Heiser.  R-O-W-D-Y
     H-E-I-S-E-R.  I'm with FMC Corporation.  I will speaking on
     behalf of FMC and the MARG Coalition this afternoon.
                   FMC employees approximately 254 underground
     miners. We have approximately somewheres in the neighborhood
     of 250 pieces of diesel equipment.  
                   The coalition believes that it is premature for
     MSHA to promulgate final DPM regulations given the current
     state of scientific research.  As a threshold issue, MSHA
     has not identified any data or study that supports a finding
     of excess mortality or disease in coal and metal/nonmetal
     miners that is related to DPM exposure at the levels
     proposed for regulation.  
                   MSHA has not conducted a comprehensive risk
     assessment, an assessment of risk at current or proposed
     regulatory levels or an assessment of potential benefits
     from the proposed standards.  Instead, MSHA has used three
     types of evidence to identify possible relationship between
     occupational exposure to diesel particulate and illness.
                   The three types of evidence are:  (1) the presence
     of suspected carcinogenic compounds in diesel exhaust; (2)
     the induction of lung cancer in rats, although not in mice
     or hamsters, in certain experiments; and (3) certain non-
     mining epidemiological studies with inconsistent results
     which do not quantity the amount or type of particulate
     matter exposure.
                   In fact, however, the mining industry specific
     studies demonstrate a lack of diesel-related health effects. 
     And the latest, most reliable scientific literature
     contradicts MSHA's analysis and findings.
                   As California's EPA noted in 1998, "The
     uncertainty in the application of the rat findings to humans
     is substantial.  Present lack of knowledge about how the
     carbon core of diesel exhaust particle contributes to the
     carcinogenicity also adds to the uncertainty about the
     scaling from rates to humans."
                   After reviewing animal research, MARG concluded
     diesel exhaust is a pulmonary carcinogen when inhaled
     chronically at high concentrations by rats.  It is of
     questionable carcinogenicity in mice and is not carcinogenic
     in hamsters.
                   In a recent presentation, Dr. Kaplan M. Noss, of
     the Health Effects Institute, suggested that "...because
     prolong exposure to diesel emissions does not produce lung
     tumors in hamsters, and the results are equivocal, species-
     specific factors play a critical role in the induction of
     lung tumors by diesel emissions."  
                   At this time, however, there is clearly a
     disconnect between animal studies and human experience, and
     the animal studies do not constitute credible, substantial
     evidence to support the proposed rule.
                   When reviewing the studies of diesel exposure in
     humans, the International Agency for Research on Cancer
     issued the strongest statement to date on the link of
     exposure to risk.  "There is limited evidence by
     carcinogenicity of the whole diesel exhaust in humans.  The
     Health Effects Institute and the World Health Organization
     also have evaluated the carcinogenicity of diesel exhaust
     and the epidemiological data show weak associations between
     exposure to diesel exhaust and lung cancer."
                   NIOSH, the agency charged with the Mine Act, with
     health study responsibilities, and NCI, note that the
     current human studies upon with MSHA relies to support its
     proposed rules have major weaknesses:
                   First, only one was able to adjust for smoking. 
                   Second, most defined exposure based on job
     information and none had incorporated quantitative
     assessments of diesel exhaust exposure directly into the
     mortality analysis.
                   Third, exposure to the diesel exhaust appeared to
     be low generally.
                   Fourth, the latency in many studies may have been
     insufficient to detect excess lung cancer mortality.
                   Finally, the confounding from other exposures,
     such as asbestos, was an unresolved difficulty in a number
     of studies.  
                   These weaknesses make it difficult to draw
     reliable conclusions from these findings.
                   NIOSH/NCI diesel exhaust study protocol:  All of
     these prestigious health and research organizations fault
     existing research because of the absence of reliable
     exposure data, the inability to control for confounding
     factor and questions about the study's ability to estimate a
     dose/response relationship.  
                   As NIOSH/NCI put it, "Few mortality studies using
     quantitative measures of diesel exhaust directly to access
     exposure response exists.  Those that do have defects are
     incomplete."  
                   NIOSH/NCI diesel exhaust protocol:  "Limited and
     weak evidence has defects and is incomplete, does not meet
     the statutory requirements for the latest substantial and
     credible evidence demonstrating significant risk."
                   Significantly, the human studies conducted in the
     mining industry reveal a negative propensity for diesel
     particulate matter-related health effects.  
                   Among the materials added to MSHA's rulemaking
     document following the completion of the public hearings on
     the coal rule was a recent study of underground coal miners,
     which found that these workers have a less than average
     chance of dying from cancer and other illnesses, which
     MSHA's preamble links to DPM exposure.  See Christy,
     "Mortality in the North/South Wales Coal Industry 1973
     through 1992," The Journal of Australia.  
                   The study found that miners who entered the
     industry between 1973 and 1992 had a 24 percent lower
     mortality than the general population, including a 27
     percent lower mortality from respiratory diseases, and a 22
     percent lower mortality from cancer.  These workers also had
     a 33 percent lower mortality from heart disease.  The
     researcher noted that the lower mortality rate compared with
     that shown in some earlier studies of miners, who began
     working in the 1930s or earlier, was due to the extensive
     mechanization of mining techniques and to the dust control
     now prevalent in the modern mining industry.  This study,
     which reflects the latest scientific evidence, the current
     state of technology, and the actual health effects on
     miners, is more appropriate basis upon which to determine
     whether the regulatory action is needed.
                   The other mining industry-specific studies in the
     rulemaking record do not demonstrate any health effects
     related to DPM exposure, and MARG will supply a written
     summary of these studies with its comments.
                   As noted in MSHA's preamble, over 30 general
     epidemiological studies have investigated the potential
     health effects of diesel exhaust.  However, there were no
     published industrial hygiene measurements for the diesel
     exhaust exposures for any of these study populations.  Even
     if the studies demonstrated health effects, which they did
     not, they do not support MSHA's proposed DPM levels.
                   Moreover, the pivotal studies upon which MSHA most
     heavily relied at best shows small effects and are fatally
     flawed, and even MSHA's analysis of the existing
     epidemiological studies shows only a weak association
     between diesel exposure and diesel etiology.  
                   As noted by NIOSH/NCI's diesel researcher, Debra
     Silverman, "The repeated finding of small effects, coupled
     with the absence of quantitative data on historical
     exposure, precludes a casual interpretation."
                   MSHA has inappropriately and selectively presented
     research to support its conclusion that DPM is a workplace
     hazard while ignoring other studies that refute that
     conclusion.  MSHA appears to have the question backwards. 
     In rulemaking under the Mine Act, the issue is not whether
     there is overwhelming evidence proving that uncontrolled
     exposure to diesel exhaust poses no health risk.  Rather, to
     support a rule of this magnitude from a statutory,
     financial, technological and public health perspective, MSHA
     must demonstrate through the best available evidence that a
     risk of material impairment exists under current conditions,
     and that the control of DPM exposure at the proposed levels
     will provide protection to the health of miners.  
                   The science in the rulemaking record fails to
     satisfy this burden.
                   I will now turn it back over to Mr. Adamson.
                   MR. KOGUT:  I have a couple of questions.
                   There is a statement here that we've ignored
     studies that refute our tentative conclusion that DPM is a
     workplace hazard, and one that you listed here was the study
     by Christy that you discussed.
                   Were there other ones that you had in mind besides
     that?
                   MR. CHAJET:  Yes, and those will all be presented
     as part of the written comments.  
                   MR. KOGUT:  Okay, but I didn't miss one in your
     comments here.  That was the only one you discussed here. 
     Is that right?  
                   MR. HEISER:  Yes.  
                   MR. TOMB:  Okay, and you will be providing other
     ones.
                   MR. HEISER:  The studies in the written comments.
                   MR. KOGUT:  Okay.  I'm sorry, do you have any -- I
     guess I missed the earlier part of your presentation where
     you were giving your background.
                   Do you have a background as an epidemiologist?
                   MR. HEISER:  No, I do not.  
                   MR. KOGUT:  In your written comments, are you
     going to be providing an analysis by competent
     epidemiologists explaining the relevance of this Christy
     study and other -- the other studies that you talked --
                   MR. CHAJET:  Yes.
                   MR. KOGUT:  Are you aware that in this Christy
     study that there is no mention of any conclusions about the
     effects of diesel exhaust or diesel particulate?
                   MR. CHAJET:  It's because there were none.
                   MR. KOGUT:  How do you know that that's why there
     was no conclusion presented?
                   MR. CHAJET:  Because they studied diesel-exposed
     miners for --
                   MR. KOGUT:  How many of those miners were diesel
     exposed?  Do you know? 
                   MR. CHAJET:  We believe all of them were diesel
     exposed.
                   MR. KOGUT:  Where in the study does it say that?
                   MR. CHAJET:  I believe it's in the text of the
     study.
                   MR. KOGUT:  Could you point that out in your
     written response?
                   MR. CHAJET:  I'd be happy to.  Sure.  
                   MR. KOGUT:  Are you aware that in that study the
     departure of the SMR from one for lung cancer was based on
     29 cases and was not statistically significant?  
                   MR. CHAJET:  We'll let the study speak for itself,
     and there will be Ph.D.s and M.D.'s providing comments on
     the record. 
                   MR. KOGUT:  Okay.  
                   MR. TOMB:  Any other questions?  
                   MS. WESDOCK:  I do.  
                   MR. CHAJET:  Let me just add to the overall answer
     to that.  Again, we're not relying on any particular study,
     but we are relying on statements in the record in writing by
     NIOSH and NCI that were just read into this record regarding
     the validity of the evidence that MSHA has relied on and the
     inconclusiveness of that evidence, and those statements are
     very clear.  They are in writing, and they are in the
     record.  
                   MR. KOGUT:  I think it's important to keep in mind
     the distinction between evidence supporting a definitive
     exposure response relationship and evidence regarding the
     existence of an excess risk that's associated with exposure
     to diesel particulate or fine particulate in general.  
                   And I think that one thing in your comments, and
     maybe it would be a good idea for you to address this more
     fully in your post-hearing comments, is that you seem to
     focus exclusively on the evidence regarding diesel
     particulates specifically and lung cancer whereas in the
     risk assessment we go to some trouble to talk about risks
     associated with fine particulate in general.
                   MR. CHAJET:  Those quotes are in reference to the
     NIOSH study which is studying, I believe, 17 suspected end
     points of disease.
                   MR. KOGUT:  I'm not just talking about end points,
     but I'm talking about diesel particulate and its
     manifestation as a fine particulate.  
                   You said that the EPA, for example, has not come
     out with a regulation on diesel particulate, but they have
     come out with a regulation on fine particulate, of which
     diesel particulate is an example.  
                   MR. TOMB:  Okay.  Oh, you had a question.  I'm
     sorry.
                   MS. WESDOCK:  In your testimony you say that the
     mining industry -- that the mining industry-specific studies
     demonstrate a lack of diesel-related health effects and the
     latest and most reliable scientific literature contradicts
     MSHA's analysis and findings.
                   Those studies that you're referring to, are those
     the ones that you're going to be submitting for the record?
                   MR. CHAJET:  Those and the studies cited by the
     NIOSH/NCI study.
                   MS. WESDOCK:  Okay.  
                   MR. CHAJET:  Yes.  And we will provide the
     protocol and all the attachments with it as well.
                   MS. WESDOCK:  Okay.  Thank you.  
                   MR. TOMB:  Okay, if you would like to continue.
                   MR. ADAMSON:  Thank you.  
                   MR. TOMB:  Thank you.  
                   MR. ADAMSON:  We'd like to restate that MSHA
     should postpone its DPM rule until NIOSH/NCI's mining
     industry study is completed.  
                   At approximately the same time as MSHA began its
     rulemaking effort in the early 1990s, NIOSH and NCI
     developed a protocol for health effects study of diesel
     particulate exposure at salt, trona, potash and limestone
     mines throughout the United States.  They performed data
     collection and fill sampling at selected mines in 1998 and
     early 1999, and the results are now being analyzed.
                   While the MARG Diesel Coalition may disagree with
     certain points and aspects of the study protocol, and
     participated in its development and endorsed the study. 
     MARG believes that this is important research and has
     cooperated with NIOSH and NCI in making information and
     personnel available for the study.
                   The goals of the NIOSH/NCI project are to:  (1)
     evaluate mortality resulting from diesel exhaust exposure;
     (2) to determine whether mortality increases in relation to
     the level of exposure; and (3) to evaluate the association
     between measured levels of diesel exhaust components in the
     air, metabolites in the urine, and DNA adducts in bronchial
     and blood cells.  All suspected disease end points are being
     studied, including lung cancer.
                   The study's three components are:  (1) a
     retrospective mortality study; (2) a nested case control
     study; and (3) a bio-marker study.
                   The researchers will utilize information from
     extensive current industrial hygiene surveys at each mine,
     as well as data from past surveys and MSHA enforcement
     activities.  The mines have provided NIOSH and NCI with
     records concerning exposure levels, equipment purchases and
     usage, fuel records, and employment duration and
     stratification.  
                   This information will be used to construct
     estimates of personal exposure to DPM over time and to
     attempt to estimate health risks at various DPM levels. 
     Such evidence is starkly lacking in the MSHA rulemaking
     record.
                   As NIOSH and NCI notes in its 1997 protocol, and I
     quote, "The risk of lung cancer from diesel exhaust in
     humans is not well defined.  In particular, although 30 or
     more studies have examined lung cancer risk and diesel
     exhaust exposure, few have employed quantitative exposure
     measurements of diesel exhaust directly in their analysis."
                   NIOSH/NCI also stresses that the only previous
     study of underground nonmetal miners showed, "no clear
     evidence of excessive risk of lung cancer."  It is because
     of the drawbacks in existing studies that NCI and NIOSH
     propose to conduct a cohort and nested case control study of
     lung cancer and other health effects among metal/nonmetal
     miners.
                   These are the same existing studies that MSHA is
     using to support its proposed DPM rulemaking.  MSHA must act
     upon NIOSH's conclusion that existing science does not
     support a finding that DPM has been shown to have adverse
     health effects in miners.
                   Rather than describing the NIOSH/NCI effort as
     unimportant to its rulemaking, as it did in the rule's
     preamble, MSHA is required by the statute to postpone the
     rulemaking in light of the best and latest scientific
     evidence until its sister agency study is complete.
                   As previously indicated, there is no justification
     for establishing the concentration limit for total carbon
     contained in MSHA's proposed rule.  Moreover, the proposed
     NIOSH Method 5040 for measuring compliance is:  (1) not
     intended by NIOSH to measure total carbon; (2) not
     technically feasible for use to measure diesel exhaust in
     metal/nonmetal mines due to the interference of naturally
     occurring carbon materials; (3) not validated with an
     appropriate standard; (4) proven to create massive errors
     when unused blank control filters are analyzed; and (5)
     incapable of use as a surrogate to measure diesel exhaust
     for these and other reasons.
                   The comments of Dr. Howard Cohen, which will be
     submitted for the record, demonstrate these problems in
     detail based on over 1,000 samples collected at five
     underground mines.
                   It is undisputed that the composition of diesel
     particulate matter is highly variable and dependent upon a
     multitude of mine-specific factors, including engine type
     and number, load cycle, fuel and oil specification,
     maintenance, filtration devices, altitude, temperature, and
     ventilation.  And as noted by Dr. Kathleen Naus of HEI, it
     has been difficult to obtain accurate estimates of human
     exposure to diesel engine emissions because of their
     complexity, the contribution of other pollutants to the
     ambient air and the changes in diesel emissions due to
     improved engine technology and fuel composition.  Moreover,
     no single constitute of diesel exhaust serves as a unique
     marker of exposure.  
                   Over the years MSHA, NIOSH and independent
     researchers have used a variety of substances as a potential
     surrogate, including submicron particles, NO, NO2, CO, Co2
     and most recently, elemental carbon.  
                   MSHA now proposes a new surrogate, total carbon,
     that is not supported by the literature and has been proven
     not feasible by extensive testing.  
                   There is no constant relationship among diesel
     exhaust constituents since MSHA's proposed exposure level is
     based on total carbon, which may vary widely in its
     relationship to elemental carbon and exhaust gasses
     according to mine conditions and equipment.
                   MSHA's proposal may either underestimate or
     overestimate the miner's actual exposure to referable diesel
     exhaust.  
                   Despite this lack of certainty, MSHA proposes to
     determine compliance with a single area sample measurement
     of total carbon.  For support, MSHA quotes the NIOSH claim
     that the 5040 method for EC "...meets the NIOSH accuracy
     criterion, which is a plus or minus 25 percent of the true
     value 95 percent of the time."
                   This statement, however, refers to a measurement
     of elemental carbon, not total carbon, in the NIOSH lab, and
     does not reflect the interferences of other carbon
     contributions from the sampling cassette and the mine
     environment.  
                   The developer of NIOSH Method 5040 recommends that
     elemental carbon be used as an exposure marker for DPM, not
     total carbon.  
                   But MSHA has apparently concluded that the EC
     fraction of diesel particulate material is too variable to
     use to extrapolate diesel particulate mass.  However, NIOSH
     cautions that its own total carbon data using NIOSH Method
     5040, I quote, they say "....indicate a highly variable
     total carbon to DPM ratio as well, which should not be the
     case for DPM.  Filter stability was a problem because quartz
     fiber filters must be used and these tend to lose fibers. 
     Also, reference filters often do not reequilibrate to their
     initial weight, especially when taken in the field."
                   NIOSH concludes by urging MSHA to review and
     analyze currently available data from U.S. mines to
     determine their variability of elemental carbon to total
     carbon ratios.  
                   MSHA recognizes that confounders for carbon
     sampling exist in coal mine atmospheres, and that they
     preclude establishment of a concentration limit because of
     their interference with sampling.  Carbon coal founders also
     exist in metal and nonmetal mines, including naturally
     occurring minerals, oil mists from machinery, tobacco smoke
     and particulate matter associated with underground blasting. 
     It is illogical to mandate a sampling regimen that is ill-
     fated from the start due to its lack of technical
     feasibility.  It is arbitrary and capricious to hold mine
     operators legally responsible for complying with a
     concentration limit when neither MSHA nor the mine operators
     can accurately determine the exposure level or if it exists.
                   Even if an appropriate analytical methodology were
     available to accurately determine levels of DPM compliance
     with an occupational exposure limit, compliance cannot be
     determined based on a single sample or an area sample.  Such
     sampling results have no relationship to a miner's actual
     exposure and have been proven to be highly variable.  MARG
     will submit further written comments on the issue for the
     record.
                   In response to other issues raised by MSHA's
     proposal, MARG believes that Part 48, Training, covers
     health effects and no additional training regulations are
     needed. 
                   We believe that the pre-shift mobile equipment
     examination standard should be applicable to diesel exhaust
     controls and another examination standard is not needed.
                   We also believe that any additional plan
     requirements are unnecessary since they add to the
     recordkeeping burden without contributing to the health and
     safety.
                   In conclusion, it is clear that sound science does
     not support a finding of diesel particulate health risks
     that meet MSHA's regulatory threshold, nor is there any
     scientific basis for the arbitrary concentration limit or
     percentage reduction in emissions set forth in the proposed
     metal/nonmetal and coal/diesel exhaust regulations.
                   Moreover, implementation of the proposed rules
     will both -- will be both technologically and economically
     not feasible.
                   For these reasons, and in light of the NIOSH/NCI
     study, and the need to take joint action with OSHA and EPA
     on this national issue, MARG suggests that MSHA stay the
     rulemaking proceeding until the completion of the study and
     coordination with these other critical agencies.
                   Thank you.
                   MR. TOMB:  Thank you.  Any questions?
                   MS. WESDOCK:  I have one.  
                   MR. TOMB:  Okay.  
                   MR. ADAMSON:  I have just a couple more questions. 
                   Regarding the laboratory analysis, I need to ask,
     has MSHA or any of its contract labs, have you guys
     conducted or participated in any quality control or round
     robin testing of the NIOSH 5040 Method?  And if so, can you
     make that -- all such activities and documents part of the
     public record and permit comments on the materials?  
                   MR. TOMB:  Yes, we've done some comparative
     measurements of the laboratories, and we can make that
     available in the record.
                   MR. ADAMSON:  Appreciate it.  Thank you.  
                   Also, since there is no standard for elemental
     carbon to calibrate the instrument when using this method,
     how does MSHA know that report results are really elemental
     carbon from diesel exhaust?
                   MR. TOMB:  I'd have to go back and talk to our
     analytical chemist about that.  I don't -- as far as I know,
     there is no standard for elemental carbon, okay.  We only
     have a standard for organic carbon.
                   MR. ADAMSON:  Okay.
                   MR. TOMB:  All right.  And the temperature, where
     we ramp off the temperature for getting off the organic
     carbon and take it back up and burn off the rest of it is
     considered to be elemental carbon.
                   MR. ADAMSON:  Okay.  
                   MR. TOMB:  Yes, elemental carbon.
                   MR. ADAMSON:  All right.  One thing too you might
     want to look into is when we visited Clayton, particularly
     for limestone and trona, there is not a distinct peak for
     the carbonaceous materials.  In fact, there was almost a
     bimodal peak, and so the acid wash wasn't effective there. 
     So you might want to look into that, particularly for
     limestone and trona.
                   MR. TOMB:  Okay.  We've looked at some of that in
     a laboratory.  We have seen, and maybe not -- they couldn't
     have been the same samples that you look like.
                   MR. ADAMSON:  Sure.
                   MR. TOMB:  But we do see a carbonaceous peak there
     that with the acid wash we could get rid of it.
                   MR. ADAMSON:  Sometimes, yup.
                   MR. TOMB:  And we've had a lot of discussion with
     NIOSH, Eileen Birch out of Cincinnati, and the assistance
     we've had, we do not know if there was a problem with the
     method, to the extent that you're talking about and from
     what some other people are talking about.  So we will go
     back and talk to them and clarify with them.
                   We have somebody in the audience, I guess, from
     DataChem.  I don't know, do you see these problems?  Feel
     free to speak on that stuff too, if you have information on
     it.
                   MR. PERKINS:  We've run thousands of samples of
     these elemental carbon samples that have been coming through
     from various individual mining companies, as well as NIOSH,
     because we are the national contractor for NIOSH for
     industrial hygiene chemistry. 
                   When they first developed the acid mist procedure
     for removing carbonaceous materials, there was some problems
     with it, and it even shut down one of our instruments.  We
     were able to correct that problem and we have performed
     hundreds so far, and the carbonaceous ore is removed.
                   Where some of the problems are seen, where there
     is variability in the data, it is generally because of
     uneven surface -- it appears to be I should say -- uneven
     collection on the filter when you take separate punches.  If
     you're taking an excess amount of material as you're
     collecting, and you're not watching the volume and the
     loading as you take a punch from various portions, your data
     can vary, and we've seen that happen with the removal of the
     carbonaceous material, and sometimes we see negative results
     for total organic carbon because it's all carbonaceous and a
     very small amount of regular organic carbon.  And then in
     the next run we'll have the organic carbon, carbonation
     ratio, and so therefore then we get a positive value.
                   So if there is an even sampling and appropriate
     sampling that's taken place according to 5040, we don't have
     that problem on any of the samples we've looked at.  And we
     can remove both trona and limestone.  
                   MR. TOMB:  Okay.  Thank you.  
                   MR. CHAJET:  We appreciate the comments, but it
     doesn't change the fact that when we send in spiked samples
     or blank samples to both DataChem Lab and to Clayton and
     other labs, they come back with total organic and elemental
     carbon reports when there was no diesel exhaust, so there is
     clearly something wrong here with that, you know.
                   And the other thing is that there is a very clear
     operator art involved in running these analyses as to where
     to set the peak on these machines, and that operator art, if
     you will, is an unquantifiable methodology at this point. 
     It's a very disturbing art form, if you will, when viewed
     from the perspective of an enforcement scheme.  
                   MR. TOMB:  Okay.  Well, I think we'll take a --
     not I think -- we will take your comments into consideration
     and look into the analytical procedure and the analytical
     results that are coming out. 
                   I might just add for your information that I think
     there is another round robin study that's being done between
     Germany, CANMET in Canada, and I think there is another lab
     in the United States that's also doing round robin, so there
     are a lot of labs -- I won't say a lot -- there are other
     laboratories that are out here using this method, comparing
     results, and from the data that I've seen the results are
     comparable.  So that's the only information I have to date.
                   MR. ADAMSON:  I have one question for the panel.  
                   MR. TOMB:  You mean the gentleman -- yes, may I
     ask you a question?
                   Do you routinely do an acid wash or do you only do
     an acid wash when you know that there is a carbonate
     contaminate on the sample?
                   MR. PERKINS:  If it's requested by a particular
     individual who is submitting the sample.  Some individuals
     do not care whether they have carbonaceous -- elemental.
                   MR. TOMB:  Okay.
                   MR. PERKINS:  It's only upon request.
                   MR. TOMB:  Okay.
                   MR. PERKINS:  We do not do it routinely.  
                   MR. TOMB:  That's what we asked for data on this
     morning, we asked for that.  I don't know whether we asked
     Kennecott.  Oh, you didn't know?  Okay.  
                   VOICE:  You didn't specifically request an acid
     wash in the --                    
                   MR. TOMB:  This information is important to us
     because we're concerned, you know, about the comments with
     respect to the method, and we'll take a close look at it. 
     We appreciate your -- I'll tell you one thing we're really
     glad of, the people are out there getting data and trying to
     do an -- using this method to measure diesel particulate in
     their mines.  There is going to be improvement in both the
     measurement, the sampling method, and as people become more
     familiar with the analytical method, I'm sure that some of
     the things you talked about, Henry, is -- you know, this
     fine art of where to cut off the -- to set the temperature
     ramp so that you identify the elemental carbon, as the
     procedure becomes more used and you have more round robin
     sampling being done and the results compared, that's going
     to solidify itself, I feel sure.  
                   And I think the other thing is that is important
     here is the sample size that are sent to the laboratories
     too that has to be clarified from what you came up with.
                   I really appreciate -- do you have any other
     comments?  
                   MR. HANEY:  Is smoking permitted in the trona
     mines?
                   MR. ADAMSON:  No.  Gas mines.  
                   MR. TOMB:  Okay, I really appreciate --
                   MR. ADAMSON:  We have one question.
                   MR. TOMB:  Okay.
                   MR. CHAJET:  We have two more questions.
                   MR. ADAMSON:  Two more questions.  
                   MR. ADCOCK:  We understand that the former
     political deputy assistant secretary for MSHA, Andrea Rico,
     has been retained by MSHA on a consulting contract, and has
     worked extensively on the proposed diesel rules.  We also
     understand that her husband, John Fornet, is involved in the
     efforts in California to ban diesels, and had a role in the
     two liter analysis that MSHA relies in for support of its
     risks findings.
                   Would MSHA place all such relationships and any
     documents related to either her or her husband's activities
     in this rulemaking in the public record to permit a
     determination as to whether a conflict of interest or bias
     exists?
                   MR. TOMB:  Yeah.  I guess we can do that.  I know
     of no such things that you talk about.  
                   MR. ADCOCK:  Thank you.  
                   MR. TOMB:  You had two questions?
                   MR. ADAMSON:  Yes, I've got one.
                   My question is, why does MSHA's proposal fail to
     acknowledge or take into account the latest and most
     reliable scientific evidence such as the study of the New
     South Wales coal miners, the Christy study, and other new
     studies such as Morgan and the Cambridge environmental of
     1998?  
                   MR. TOMB:  I'll turn that over to Mr. Kogut if he
     can answer.
                   MR. KOGUT:  We regard the study by Christy as
     being marginally relevant to the issue of whether there is
     an association of coal dust exposure to lung cancer, and we 
     discussed it, to some extent, in that context in the rule.
                   As for relationship with diesel particulate, as I
     think you pointed out in discussing it, the SMR for lung
     cancer was lower than one, not just for lung cancer but for
     virtually every other health end point that was looked at. 
     That indicates the presence of a substantial healthy worker
     effect.  As a matter of fact, the miners that were included
     in that study seemed to be quite, quite a bit healthier than
     the general population.  And for that reason really the
     appropriate comparison would not be to the general
     population but to other workers in the coal, or that were
     not exposed to diesel particulate.  That wasn't -- there was
     no attempt to do that or to adjust for any kind of a healthy
     worker effect in that study.  
                   The only -- the only health end point that was
     elevated for the workers in that study was -- the only risk
     that was elevated was risk due to accidents, deaths due to
     accidental mishaps, and that brings up another possibility,
     which is -- another issue, which is that there is an issue
     of competing risks from -- because those miners were
     subjected to premature death due to accidents, they may not
     have had sufficient time to develop things like lung cancer,
     which require a long-term exposure, at least more so than
     the general population would be, and that might account for
     part of the difference with the general population.
                   The most important consideration, I think, and the
     reason why I think it's not really relevant as a study that
     looks at an association for lung cancer with diesel exposure
     is that we don't have any idea really how many of those
     miners were exposed to diesel, first of all.  And secondly,
     because the report includes lung cancers that were diagnosed
     only through 1992, but the cohort includes workers who
     entered the workforce as late as December 31 of 1992.  So
     some unknown fraction of that workforce was only included in
     the cohort with no opportunity to be exposed to diesel
     exhaust at all.  So there is a wide range of latencies or
     periods of exposure that -- among the people in the cohort,
     and there is no indication given, we don't really know what
     percentage of the people in the cohort were exposed to
     diesel for more than five or -- five - six years, or, you
     know, some of them were exposed for no period of time at
     all.
                   Now, it's normally assumed or taken for granted in
     a cohort study that's looking for a health end point like
     lung cancer, that in order to provide sufficient latencies,
     provide enough time for whatever the contaminate is to have
     an effect on increasing the incidence of lung cancer, that
     you have to have a period of at least 10 or maybe 10 years
     or longer before any effects of that contaminant would
     become apparent.
                   That doesn't seem to be the case in this study,
     and there is no indication by the authors that this study is
     even relevant to an investigation of lung cancer as
     associated with diesel particulates.
                   So it really seems like a -- I don't see that
     there is any relevance of this study in compiling a list of
     studies that are looking for an association between diesel
     particulate and lung cancer, and I don't think it would meet
     any minimal criteria that -- you know, if someone were
     constructing a list of criteria for studies to be included
     in a meta analysis or, you know -- you know, there is a lot
     more than 43 epidemiological studies out in the world, and,
     you know, you could pick any one arbitrarily and say that,
     well, we should have looked at that.  But, you know, this
     doesn't seem to be much more relevant as a study linking --
     looking for an association between diesel particulates and
     lung cancer than a lot of other arbitrarily selected studies
     that have nothing to do with it.  And the authors made no
     mention of either looking for that or concluding that there
     was no association.
                   So we also received that study pretty late into
     the rulemaking.  Initially we didn't put it in the record at
     all.  When it was brought up during hearings for the
     California Air Resources Board, or the California
     Environmental Protection Agency, we became aware of it, and
     did look at it at that time, and concluded that, although it
     was relevant to the question of whether exposure to the
     carbon in coal is associated with lung cancer, we didn't see
     any relevance really or we didn't see that it was a useful
     study in assessing association between diesel particulate
     and lung cancer.  
                   MR. ADAMSON:  Thank you.
                   MR. KOGUT:  The other study is -- the other study
     that you mentioned is not an epidemiological study.  What
     was the other one you mentioned again?
                   MR. TOMB:  Rieger and Morgan.
                   MR. KOGUT:  Rieger and Morgan, that's a critique
     of the existing epidemiological literature, and so we did
     look at that and take it into account in our assessment, but
     we didn't include it as one of the 43 epidemiological
     studies that we considered because it's not an
     epidemiological study.  
                   We did take the opinions expressed in that
     analysis into account however.
                   MR. TOMB:  Do you have any other questions?
                   MR. ADAMSON:  Thank you.  
                   (Laughter.)
                   MR. TOMB:  Thank you for your presentation.  
                   We are going to take a 15-minute break.
                   (Whereupon, a recess was taken.)
                   MR. TOMB:  All right, the next presentation is
     going to be made by Independence Mining Company.  It will be
     made by Mr. Brent Chamberlain.  Thank you.
                   MR. CHAMBERLAIN:  Mr. Chairman, are you ready?
                   MR. TOMB:  Yes.
                   (Slide.)
                   MR. CHAMBERLAIN:  My name is Brent Chamberlain, 
     B-R-E-N-T C-H-A-M-B-E-R-L-A-I-N.  
                   Thank you, Mr. Chairman and members of the panel,
     for the opportunity to provide comments concerning the
     proposed diesel particulate matter regulations.  With me I
     have Mr. Shane Owen who is responsible for our industrial
     hygiene, and together today we are representing or employer,
     Independence Mining Company, who is the operator for Jerritt
     Canyon Joint Venture.  
                   We share MSHA's goal of providing a safe and
     healthy work environment for our miners.  With this in mind,
     we have reviewed the proposed standard, conducted extensive
     testing in our mines and other work areas, and evaluated the
     estimated costs of achieving these proposed standards. 
     Based upon these evaluations, we support the comments made
     here today by members representing the National Mining
     Association and the Nevada Mining Association.
                   (Slide.)
                   Based upon our test results and analysis, we
     believe that the proposed standards should not be adopted
     for the following reasons, which I will address in greater
     detail in a moment:
                   First, the proposed standards are premature
     considering the lack of medical and scientific evidence.
                   Two, the proposed regulations are based upon
     analytical methodologies and mitigation technologies which
     either may not be available at this time, or are not
     reliable or practicable under the conditions that exist in
     underground metal mines such as ours.
                   Number three, to cost estimates provided by MSHA
     are inadequate and do not accurately reflect the substantial
     adverse economic impact on a mine.
                   And, four, many of the provisions contained in the
     proposed standards ignore generally accepted industrial
     hygiene practices, and some may be subject to abuse or
     otherwise would be disruptive to mine operations with little
     or no actual improvement in miner health or safety.
                   The testimony we will provide today is intended to
     highlight some of our concerns with the proposed standards. 
     We would like to reserve the right to provide additional
     comments before the close of the comment period.
                   (Slide.)
                   First, it is premature for the agency to propose
     these standards when reputable organizations and
     associations both within the industry and the scientific
     community are conducting studies on the effects of diesel
     emissions.  These studies will focus on the very issues
     critical to development and implementation of effective new
     standards, such as reliable sampling methodologies and
     cleaner burning engine technologies.
                   The ongoing NIOSH/NCI study, which has been
     referred to previously, is just one example of the studies
     that are in progress at this time.  The findings from these
     studies will be relevant in developing feasible approaches
     to addressing identifiable adverse affects on worker health
     arising from diesel exhaust exposure.  To promulgate rules
     before these substantive studies are completed is
     inappropriate given the potential for ineffective standards
     and the unreasonable costs to the industry.
                   The Clean Air -- speaking to some of these studies
     refereed to by the agency, the Clean Air Scientific Advisory
     Committee of EPA' Science Advisory Board stated that the rat
     lung tumor response to high levels of DPM is of doubtful
     relevance to human risk.  It also suggests that current
     evidence that lung tumor response may differ between rats
     and humans.
                   (Slide.)
                   The second point:  Although we have meticulously
     followed the NIOSH 5040 method for sampling for DPM, our
     test results indicate interferences from the carbon-bearing
     host rock being mined.  To date we have collected
     approximately 85 samples from our mines, the break room
     where miners gather during and beginning of work shifts, and
     in the assay lab.  All of these samples were sent to and
     analyzed by DataChem Laboratories.   DataChem then forwarded
     approximately half of the samples to Clayton Laboratories
     for a second analysis.  Both labs are qualified to perform
     the NIOSH 5050 analysis.
                   The results of our testing using the NIOSH 5040
     method demonstrates serious discrepancies in the
     methodology.  According to the analytical laboratories,
     total carbon identified and reported as DPM is, at least in
     part, carbon and carbon compounds contained in the or
     itself, totally unrelated to diesel exhaust.
                   (Slide.)
                   It's difficult to see that picture.  Perhaps I
     should have brought an actual rock.  But as you can see from
     the picture, our ore,our host rock is black.  It looks like
     coal.  It has many of the same carbon constituency as coal. 
     It's very high in carbon and it has an interference with the
     sampling method as we've done it so far.
                   (Slide.)
                   A total of 18 side-by-side samples using the NIOSH
     5040 method were taken in our lab, isolated from any DPM. 
     The cassettes were placed at the pulverizers while
     pulverizing underground ore and are not representative of
     employee exposures.  They were then sent to DataChem Lab for
     analysis for carbon content using the appropriate method. 
     Total dust samples were also taken.
                   (Slide.)
                   As you can see from this next slide, the results
     for organic carbon were over MSHA's proposed exposure
     levels.  Organic carbon levels ranged from 440 to 2,662
     micrograms per cubic meter.  Now, if you add in the
     elemental carbon, the levels are even higher.  Elemental
     carbon levels ranged from zero to 1,031 micrograms per cubic
     meter.  These carbon levels are from carbon-bearing rock
     with no diesel particulate matter present.  This proves that
     the NIOSH 5040 method is flawed as it is currently proposed
     and cannot differentiate between carbon-bearing rock and
     diesel particulate matter.
                   (Slide.)
                   Interestingly, MSHA recognized the potential
     interference with sampling results caused by cigarette
     smoke.  Controlling cigarette smoking as suggested by NIOSH,
     or excuse me, MSHA on page 58,129 of the preamble is easier
     said than done.  
                   This graph shows the results of a sample taken in
     the break room where employees are allowed to smoke.  As you
     can see, the elemental carbon in the cigarette smoke was 128
     micrograms -- that's this number -- hope we can figure this
     things out -- this number here, and the organic carbon, when
     you add that in, was 7,876 micrograms.  The total carbon
     amount was 8,004 micrograms per cubic meter, 20 times MSHA's
     first exposure limit and 50 times higher than the final
     proposed exposure limit.
                   We conducted four samples to test the effect of
     oil mist and the NIOSH 5040 method in one of our developing
     underground mines.  Only two employees were working in the
     mine at the time of the sampling.  One employee was drilling
     with a jumbo drill, and the other was operating a jackleg. 
     Now, the jacklegs are the drills that have been spoken of
     previously where oil is added to the air, and which does
     result in an oil mist.  No diesel equipment was running at
     the time.  As you can see here, the results for the
     elemental carbon ranged from 93 to 109 -- these results
     along the bottom.  Organic carbon ranged from 2,517 to 2,832
     micrograms per cubic meter.
                   Again, these are -- of course, the combined total
     of those are well over the proposed standards.
                   (Slide.)
                   NIOSH has mentioned the use of an impactor with
     submicrometer cut point may be used to minimize collection
     of coal dust in the underground coal mines.  We conducted
     three sets of side-by-side tests to determine if an impactor
     would make a difference with our carbon bearing rock, one
     set in our lab where no DPM was present, and two in our
     underground mines.  
                   The sets consisted of one open-faced cassette, one
     cyclone sampling train, and one impactor sampling train with
     a cut point of two microns.  And actually at this point, as
     you may be aware, it's very difficult to find these
     submicron impactors.  In fact, we haven't -- we did not have
     one available.  Two micron was the smallest we could get.
                   In all three sets of samples, a reduction was
     achieved from the open-faced sample to the cyclone sample,
     indicating the cyclone eliminated some of the interfering
     carbon-bearing dust.  This being the total and this being
     the cyclone.  Two of the impactor samples were actually
     higher than with the cyclone samples.  This being those --
     the data that was collected with the impactor.
                   Now, this is the sample from the laboratory, but
     of the three tests that we have run with the smallest
     impactor that we can get our hands on, amazingly -- well, at
     least it did not cut and result in a lower total carbon
     reading than the cyclone.  In one of the three, it did.
                   MR. TOMB:  Were all of these in the same location?
                   MR. CHAMBERLAIN:  No.  One of them was in the
     laboratory where there was non diesel present, okay.
                   MR. TOMB:  Was there smoking?
                   MR. CHAMBERLAIN:  No.  
                   MR. TOMB:  Okay.
                   MR. CHAMBERLAIN:  There is no smoking allowed in
     our laboratories.
                   And two of them were in-mine samples that were
     sampled, or that were collected when the train was side by
     side.
                   This one here is the one we demonstrate as being
     significant because there was no cigarette smoke, nor was
     there any diesel particulate matter.
                   The results were 47 micrograms total carbon.  Our
     testing did not demonstrate that we can effectively size
     select to measure DPM with the existence of what's currently
     available.
                   (Slide.)
                   Third, the estimates of cost for compliance are
     grossly underestimated.  MSHA suggests the cost for
     compliance for underground metal/nonmetal mines with less
     than 500 employees would be approximately $87,800.  Until we
     are able to accurately measure DPM levels, the cost of
     compliance is impossible to determine because we do not know
     what may be required.
                   Assuming that we were required to install an
     exhaust filter system as suggested in the proposed
     regulations, our initial costs would be in excess of $1
     million to retrofit our 80 pieces of diesel-powered
     underground equipment.  Again, that is a very rough estimate
     with no estimate -- or no costs included for installation
     and maintenance of these filtering units.
                   Furthermore, the availability or existence of the
     technology to retrofit engines with the appropriate exhaust
     filters is uncertain.  At our Jerritt Canyon operations, we
     use engines produced by five manufacturers, in a substantial
     variety of designs and applications.  To date we're not
     aware of manufacturers that have developed and tested
     filtering devices for all of these varieties of engine
     applications.                     
                   Furthermore, our operating duty cycle do not
     generate temperatures high enough to support the operating
     parameters established by the manufacturers of some of these
     devices.
                   (Slide.)
                   Fourth, we have a lot of concerns with the
     proposed regulations in addition to the primary ones we've
     mentioned here of cost and inability to sample.
                   Sampling for compliance purposes should be
     personal sampling.  Single shift sampling can in no way
     represent actual miner exposure to DPM.  Relying on a single
     shift or an area sample using methods that have yet to be
     developed and tested is inappropriate and could not possibly
     produce reliable results for the purposes of determining
     compliance.
                   With regard to the proposed tag-out provisions,
     relying on a subjective determination of diesel emissions to
     initiate tag-out is questionable and subject to abuse by a
     disgruntled employee.  It is also unreasonable to believe
     that a person can visually detect the amount of carbon being
     emitted from an engine under all operating conditions.
                   MSHA states in the preamble to the proposed
     standard that an idling engine may emit more -- may emit
     more than an engine operating under load.  Yet to an
     observer, this typically may not appear to be the case. 
     This subjective tag-out provision likely will lead to undue
     and unnecessary disruptions in production.
                   The standards concerning the training
     requirements:  The training requirements and recordkeeping
     requirements are a significant additional burden and will do
     nothing to reduce emissions.  Training under any final
     regulation should be incorporated in existing training
     required under Part 48.
                   The proposal in the standard to allow for only one
     extension to comply with final standards when the necessary
     technologies do not exist today is, without question,
     unreasonable.  If the proposed standard is adopted,
     extensions for compliance must be made available while the
     technologies to meet the standards are being developed for
     implementation.  If compliance means replacing existing
     equipment, economics would demand that a period of five to
     10 years may be necessary, and again, in many mines it would
     be many times longer.  It is a difficult process to change
     out all of your equipment or do the kinds of technologies
     that are being asked for here.  
                   The proposed regulations do not allow for
     administrative controls or personal protective equipment. 
     This is inconsistent with generally accepted industrial
     hygiene practices.  The use of PPE has been proven effective
     in protecting miner health.  Interestingly, MSHA, itself,
     listed respiratory protection equipment as an effective
     device to reduce miner exposure to DPM in the toolbox
     published by the agency in 1997.
                   We look forward to working with MSHA in its
     efforts to improve the health of miners.  However, we do not
     believe that the proposed regulations for DPM is reasonable
     nor will it accomplish the intended goal.
                   As we continue to evaluate this proposed
     regulation and conduct additional testing, we may wish to
     provide additional comments prior to the close of the
     comment period.
                   Thank you for this opportunity.
                   Do you have any questions?
                   MR. TOMB:  Thank you.  
                   MR. KOGUT:  How long were your samples taken? 
     Over what period of time?
                   MR. CHAMBERLAIN:  The time, the sampling time
     varied depending upon the area that we were collecting it
     in, and in some cases there was an intent to -- such as
     those taken in the lab -- to not overload a sample, so it
     was of a shorter duration.
                   But as far as an actual time frame, we would have
     to answer that in our written comments.  I can't answer that
     today.  
                   MR. KOGUT:  Could you say roughly what a minimum
     time might have been?
                   MR. CHAMBERLAIN:  Probably the shortest time frame
     was one hour in our laboratory.  
                   MR. TOMB:  Can you submit the data on these
     samples to us?  Is that possible?
                   MR. CHAMBERLAIN:  Yes, we will review all of the
     data that we have and certainly provide more information in
     our written comments.  
                   MR. KOGUT:  And did you request an acid wash?
                   MR. CHAMBERLAIN:  We did not.  That has been done
     by some with similar ores to our, with the reports or the
     results that have been reported seem to indicate that it
     doesn't solve the problem.  It doesn't wash out all of the
     carbon that it's intended to.  However, we have not
     specifically requested that.  And based on what's being
     provided here today, they may or may not have been washed by
     acid.  I don't know that.  
                   MR. TOMB:  Were these side-by-side samples, were
     they total -- taken in your lab, were they total samples?
                   MR. CHAMBERLAIN:  Most of the samples that were
     taken were side by side for an open-face, and for a
     respirable sample with the cyclone side by side.  
                   MR. TOMB:  Okay.  
                   MR. HANEY:  Did you have a cyclone in line with
     your two micron impactor?
                   MR. CHAMBERLAIN:  Yes, we did.
                   MR. HANEY:  So you had both the cyclone and the
     two micron impactor?
                   MR. CHAMBERLAIN:  That is correct.
                   MR. HANEY:  Okay.  
                   MR. SASEEN:  Mr. Chamberlain, on your slide 11 you
     talked about 80 pieces of equipment that you would possibly
     have to put filters on.
                   Is that all 80 pieces of -- are we talking about
     one mine or several mines?
                   MR. CHAMBERLAIN:  We are currently operating two
     mines at that property and developing a third.  So the 80
     pieces of equipment are all of the engines that are in
     operation in those mines.  
                   MR. SASEEN:  So in two mines.
                   Have you looked at our estimator to, you know,
     take into account your ventilation and the baseline
     emissions to see possibly how many engines the estimator
     would show you would need to add filters or other control
     devices to bring it down to levels that we -- you know, the
     160 and 400 microgram levels?
                   MR. CHAMBERLAIN:  We have looked at it.  However,
     there has not been an extensive evaluation because we feel
     that the basis is flawed to begin with.  The basis -- at
     this point in time until we know how to measure what we
     have, we have no idea what we would have to do to get there. 
     And so we feel that that estimator has no meaning or no
     value in our current situation.  So we did not use that as a
     basis.  
                   MR. SASEEN:  Thank you.
                   On those 80 pieces, what would the horsepower
     range be?  Do you have an idea?
                   MR. CHAMBERLAIN:  From less than 50 to about 400.
                   MR. SASEEN:  Okay.  Thank you.  
                   MR. TOMB:  Could you supply us with a couple
     examples of your mining operations?  I don't know what --
     sections, operating sections, the number of pieces of
     equipment and horsepower, so that we could take a look and
     see -- and your ventilation quantities and how you're
     ventilating, so we could do some calculations possibly and
     see what we think that those levels might be able to be
     achieved?
                   MR. CHAMBERLAIN:  We could look at that
     information like that, that we may be able to make available
     in our written comments.  You know, we have the numbers on
     our ventilation certainly, and we provide -- we provide a
     lot of air.  We have a lot of ventilation into our areas. 
     We are currently in the process of changing some of our
     equipment sizing right now and just in the process of taking
     delivery of some new equipment, and will not be able to
     evaluate that process until we get that new equipment in
     place and see what impacts it has on --
                   MR. TOMB:  Is that equipment with new engine
     technology, low emissions?
                   MR. CHAMBERLAIN:  It is.
                   MR. TOMB:  Okay.  
                   MR. FORD:  You talk about the compliance time for
     -- that should be taken into account for replacing existing
     equipment.
                   At your mine, can you tell us what the change-out
     of existing equipment is, the period of time?
                   MR. CHAMBERLAIN:  Well, again, it depends on duty
     cycle and operations, and that's something that is currently
     subject to reevaluation as we acquire new equipment and put
     it into application.  So with our existing equipment and
     existing duty cycles, we would need at least a 10-year time
     frame before a lot of that equipment would be traded out,
     and beyond that for some of the smaller pieces or support
     equipment.  But production pieces, you would need something
     like that, but, again, that's something that we have to wait
     until we get this new equipment in and evaluate our duty
     cycles.
                   MR. FORD:  So at your mine for the higher
     horsepower pieces, 400 range, around there, it's a 10-year
     change out.  And then for lower pieces, you say it's longer?
                   MR. CHAMBERLAIN:  I couldn't answer that here
     today.  We could look at whether we can provide it or what
     kind of information we could provide in our written
     comments.  
                   MR. FORD:  Thank you.
                   MR. SASEEN:  Mr. Chamberlain, can you supply us
     with what model those new engines are going to be?
                   MR. CHAMBERLAIN:  I don't know off the top of my
     head here, but we could consider including that in the
     testimony.
                   MR. SASEEN:  Okay, because that would give us idea
     of what kind of engines, you know, you're going to.  
                   MR. FORD:  Can we also just get a breakdown of
     your "around $1 million range" and the 80 pieces?
                   MR. CHAMBERLAIN:  To be honest with you, that's
     $12,000 times 80 pieces, which 12,000 --
                   MR. FORD:  I know, I know that's the average, but
     can we get the horsepower and then the cost for filter?
                   MR. CHAMBERLAIN:  I can't do that because so far
     as I know there is no filter system which has been tested on
     the horsepowers that we're talking about in the higher
     ranges.  I have no idea what it's going to cost to equip
     those, so we just picked a low number and --
                   MR. FORD:  Okay, so you just took an average
     number and applied that to the 80 pieces?
                   MR. CHAMBERLAIN:  Based -- we took a number that I
     felt was conservative based upon the pieces we have,
     realizing that the technology may not be there for some of
     these pieces of equipment, and so I don't know what those
     costs would be.  I feel that's a conservative number.
                   MR. FORD:  Okay.  
                   MR. CUSTER:  Mr. Chamberlain, this is unfair to
     ask you, but I will anyway.  
                   MR. CHAMBERLAIN:  Thank you.  
                   MR. CUSTER:  There are those in the audience. 
     It's been a recurring theme through the hearing process
     today that obviously this is an area standard as opposed to
     a personal standard, and it's true, it is an environmental
     standard.  And another recurring theme has been the roll-
     backs, the flexibility to permit the use of personal
     protective devices, for example, and therefore does not, or
     is inconsistent with industrial hygiene practice.  
                   And I know you can't speak for those who spoke
     before, but would the rule be more acceptable to you if
     indeed the rule were patterned as a personal exposure rule?
                   MR. CHAMBERLAIN:  At this point I'm not able to
     tell you what we could live with until I know how we can
     sample what we have, and that has to be the first basis, is
     how do we sample, what is the standard that we're trying to
     meet.  If we knew what the standard that we're trying to
     meet or how we sample for that, then perhaps we could put
     together a suggestion of what the rule may look like, but I
     think first things have to come first, and right now I have
     no idea what kind of improvements, if any, I would have to
     make in my mine, so it's hard for me to guess what approach
     I would prefer.
                   MR. CUSTER:  Thank you.  
                   MR. TOMB:  Do you have a question?
                   MS. WESDOCK:  Um-hmm.  Mr. Chamberlain, you say in
     your testimony that the training -- that you believe that
     the training and the recordkeeping requirements of the
     proposal are very burdensome.
                   Could you elaborate, I mean, as to why you feel
     the requirements in the proposal as regard to training and
     recordkeeping are burdensome?
                   MR. CHAMBERLAIN:  Well, first of all, for our
     operation or any other metal/nonmetal mine, we already have
     training requirements that establish what we have to do. 
     This seems to set out a training requirement which is
     separate from that and above and beyond what is already in
     place, so that in and of itself is a burden.
                   And similarly with the recordkeeping requirements. 
     Currently recordkeeping requirement, we're not required to
     maintain the kinds of records that are required here and for
     the time frames that are required, and it could be very
     voluminous the records that may come under this proposed
     standard if it were adopted, and there would be a lot of
     effort and work into maintaining those kind of records for
     time frames up to five years.  
                   MS. WESDOCK:  Could you tell me what the training
     in your specific mine involves right now?
                   MR. CHAMBERLAIN:  Well, I could take 40 hours and
     give it to you if you would like, but nonetheless --
                   MS. WESDOCK:  In a summary.  
                   MR. CHAMBERLAIN:  In summary, it is designed to
     meet the requirements under the Act, Part 48 of the Act,
     which establish whether, you know, the conditions, whether
     it's a new miner, or an experienced miner, an annual
     refresher and those things.  
                   MS. WESDOCK:  Okay.
                   MR. CHAMBERLAIN:  And beyond that.  I mean, we're
     meeting the requirements of the Act.
                   MS. WESDOCK:  Okay.
                   MR. CHAMBERLAIN:  It would be whatever the final
     rule that is established, whatever training may be required
     with that should and must be a part of that ongoing training
     that we're doing anyway and not be an additional burden on
     top of that as far as time and additional requirements.
                   MS. WESDOCK:  Thank you.  
                   MR. TOMB:  Could it be fit into the 48, Part 48
     training, I mean, what you do in the 40 hours?
                   MR. CHAMBERLAIN:  Again, until we know what the
     final rule is it's difficult to say that, but I'm going to
     assume that it can because we do that for every other health
     standard that we have.  All of the other -- and many other
     things, of course, are covered by health standards, and that
     fits in Part 48 training that's required, and I'm certain
     that this would also.  
                   MR. HANEY:  Why do you think it would be necessary
     to apply exhaust filters to all of your equipment?
                   MR. CHAMBERLAIN:  To be honest with you, I have no
     idea what I would have to do to all my equipment until I can
     measure it.  However, that was one of the options that was
     provided by MSHA as a proposal.  If I had to install those,
     that's what it would take.  I don't know what I'll have to
     install until I can measure and see what levels I'm at.
                   MR. HANEY:  When we were -- when I was at your
     mine, oh, maybe a year and a half ago, we noticed some
     things in ventilation, like the exhaust tubing or the
     blowing tubing down into the stopes had been turned and
     placed upwind of the diesel exhaust, then that wouldn't have
     gotten taken down into your stopes.
                   Have any of those changes been made?
                   MR. CHAMBERLAIN:  There's been numerous changes
     made to our ventilation since you were out there, and
     significant improvements in that area.  Whether that would
     help us meet the requirement, again, I don't know because I
     can't measure it, but we have continued to make great
     efforts in trying to provide adequate ventilation.
                   MR. TOMB:  Any other questions?
                   (No response.)  
                   MR. TOMB:  Okay, thank you very much,
     Mr.Chamberlain.
                   MR. CHAMBERLAIN:  Thank you. 
                   MR. TOMB:  Mr. Chamberlain, are you going to
     supply the slides, a copy of the slides to us?
                   MR. CHAMBERLAIN:  Yes, we will.  
                   MR. TOMB:  You will.  Okay, thank you.
                   Our next presenters are from -- if I have my list
     correct here -- Newmont Coal Mine.  Okay, Mike Mauser.
                   MR. LEAVITT:  Wes, my name is Wes.
                   MR. TOMB:  And you're Wes Leavitt.
                   MR. LEAVITT:  Yes.
                   MR. TOMB:  Okay.  
                   MR. LEAVITT:  Let's see if I'm adequately wired
     here.  
                   MR. TOMB:  Just sing a little bit and we'll tell
     you whether --
                   MR. LEAVITT:  I don't think you want. 
                   (Laughter.)
                   MR. LEAVITT:  Mr. Chairman, members of the panel,
     I appreciate being given the opportunity to present
     testimony regarding the proposed rule for controlling diesel
     particulate matter in underground metal/nonmetal mines.
                   My name is Wes Leavitt, and I am an Industrial
     Hygienist employed by Newmont Gold Company in Carlin,
     Nevada.  Newmont currently operates three underground mines: 
     the Carlin Mine, the Deep Star Mine, and the Deep Post Mine. 
     We at Newmont are very troubled with these proposed
     regulations based on a number of factors, which include:
                   Current lack of consistent scientific data
     supporting evidence of risk; possibility of creating other
     hazards while trying to reduce DPM; lack of an adequate
     analytical testing method for diesel particulate matter;
     sample collection method proposed will not accurately
     represent exposures to miners; MSHA's economic and
     technologic feasibility study is vastly understated; and the
     concern that an enforcement strategy would improperly lead
     to mine closures.
                   A rush to regulate could lead to a loss of jobs in
     mining and mining-related industries without improving the
     health and safety of those miners still working in it.
                   Current lack of consistent scientific data
     supporting evidence of risk:  The fact that several other
     federal regulatory agencies have found that the current
     scientific data does not support evidence of risk due to
     exposure to diesel particulate matter says volumes about
     whether or not the existing data supports MSHA's contention
     of occupational lifetime exposure risk.  Further evidence
     that the existing scientific data does not support evidence
     of risk can be found in the multimillion dollar study being
     conducted by NIOSH and NCI.  This study will help to
     determine if there is indeed a risk due to exposure to
     diesel particulate matter.
                   The scientific data used by MSHA has many
     different problems associated with it.  Some of the specific
     problems are as follows:
                   One study showed prolonged exposures to diesel
     emissions produced tumors in the lungs of rats but not
     hamsters or mice.  This suggests that the risk associated
     with DPM is species specific, and may not apply to humans.
                   It has been well documented that smoking causes
     lung tumors.  Yet the studies cited by MSHA in its preamble
     indicate that smokers within the study were not accurately
     accounted for, and therefore the results of those studies is
     highly suspect due to this bias.  Any increased risk in the
     study could have been due to smoking, not DPM.
                   Possibility of creating other hazards while
     attempting to reduce DPM:  If we are required to increase
     ventilation in an attempt to lower DPM levels, we will also
     increase drying of roadways and therefore increase silica
     exposures.  If this takes place, we will also need to
     increase watering of roadways, which will in turn increase
     the safety hazards such as runaway trucks on slippery
     declines.  This particular problem poses an immediate and
     significant higher risk to miners safety.  
                   MSHA has not analyzed these risks and compared
     them to those associated with DPM.
                   In addition to these concerns, there is also the
     potential for additional air slacking within the mine due to
     drying of the surrounding rock.  When the clay materials
     present in our ore become excessively dry, they become
     unstable, causing ground control issues.  Once again, MSHA
     has not analyzed these risks and compared them to those
     associated with DPM and I believe rushing to regulate could
     actually reduce the health and safety of miners.
                   Lack of an accurate analytical testing method for
     diesel particulate matter:  MSHA states in the preamble for
     a method to be used for compliance purposes, it must be able
     to distinguish DPM from other particles present in the
     various mines.  The Nevada Mining Association study clearly
     showed the analytical method does not distinguish DPM from
     other carbon or carbon compounds.  Many of these carbon
     compounds are commonly found in the air in areas where
     miners normally work or travel.  The Nevada Mining
     Association study demonstrated there were a numbers of non-
     diesel particles, which would be reported as DPM using the
     proposed analytical method.  Cigarette smoke, oil mist, as
     well as the water and ore rock located within the mines
     participating in the study all were shown to interfere with
     the accuracy of the method.       
                   MSHA does not believe that either oil mist or
     cigarette smoke in underground metal or nonmetal mines would
     pose a problem in using the method.  Once again, clearly
     this simply not the case as both do interfere with the
     analytical method.
                   MSHA further states, operators can simply require
     no smoking in the mine while sampling is being done.  First,
     if most smokers could quite, I believe they would, yet there
     is still a lot of smokers out there.
                   Secondly, I'm not sure MSHA's economic study did
     not address -- or I am sure MSHA's economic study did not
     address the police force needed to undertake such a
     compliance task during any sampling.  Miners working gaseous
     mines continue to bring smoking materials into these mines
     knowing full well the potential for disaster, but when we
     require no smoking during sampling, will they stop?  This is
     simply not realistic.
                   Regarding oil mist, MSHA assumes that when
     operators implement the proposal's maintenance requirement
     this will minimize any remaining potential for such
     interference.  In-line oilers for pneumatic drills are major
     sources for oil mist in the mine which are not addressed by
     the proposed maintenance requirements.  Therefore, oil mist
     will continue to be a problem with getting accurate results
     using this analytical method.
                   Mine operators are not able to control the makeup
     of the material they are mining.  They must mine where the
     ore is located.  These airborne carbon and carbon compounds
     were shown via the Nevada Mining Association study to
     contribute significant amounts of reported DPM, often many
     times above both proposed levels, without any diesel
     particulate matter being present.  Because of this problem,
     the collection method is not feasible and will not represent
     a miner's exposure to DPM.
                   MSHA's use of the NIOSH 5040 analytical method
     does not meet the requirements they described in the
     preamble of these proposed rules and for that reason alone
     the promulgation of these rules should be stopped.
                   Sample collection method proposed will not
     accurately represent exposure to miners.  The proposed
     sample collection method, area samples in areas of the mine
     where miners normally work or travel, will only serve to
     further compound the errors with the analytical method
     previously identified.
                   Consistent with MSHA's studies, the Nevada Mining
     Association study convincingly showed a high variability of
     the reported DPM results for samples taken within feet of
     each other in the mine.  In addition, personal air samples
     are the only way to determine the actual exposure of miners
     as evidenced by good industrial hygiene practices, which
     even MSHA adopts.  Simply stated, a single are sample does
     not accurately represent the diesel particulate matter a
     miner is being exposed to.
                   MSHA's economic and technologic feasibility study
     vastly understated.  MSHA's economic land technological
     study, such as the one done for purposes of this regulation,
     is really a guess, and in our opinion, that is vastly
     underestimated.  However, with no current technology
     available for the size of equipment that we are using, we
     are going to be asked to conduct experiments in high
     technology in an attempt to lower DPM levels.
                   With the price of gold dropping nearly $120 per
     ounce since 1994, the depressed gold market has forced many
     operators into dealing with downsizing.  Despite being a
     leader in gold production, Newmont alone has experienced a
     reduction in force of nearly 1,000 employees in its Carlin,
     Valmy, and Mesquite mine sites in the past two years.  This
     reduction in force can be directly related to falling gold
     prices.  A technology forcing regulations such as this one
     will inevitably result in mine closures.
                   Concern that enforcement strategy will improperly
     lead to mine closures.  Assuming none of the problems
     discussed earlier existed, MSHA samples and determines of
     violation of the standard occurred.  The mine operator then
     must determine which pieces of equipment -- diesel-powered,
     its diesel-powered fleet is responsible for creating the
     excess diesel particulate matter.  One must remember there
     is no direct method for determining DPM in engine exhaust,
     so this would be a very difficult task.
                   In addition, ventilation rates must also be
     investigated as problems with the ventilation system might
     be contributing to the problem.  Meanwhile MSHA does not
     allow for the use of personal protective equipment, as
     suggested in its own DPM toolbox.  So what does the operator
     do with its diesel equipment fleet?
                   Past experience with inspectors leads me to
     believe at least some inspectors might suggest shutting it
     down.  The proposed rule actually gives anyone the authority
     to tag-out equipment they think might be exhausting excess
     DPM.  The fact is it would be difficult to determine with
     available testing equipment which equipment is emitting
     excess DPM because there is no direct testing method for
     DPM.
                   The rules will allow for disgruntled employees and
     overzealous inspectors to subject mine operators to
     unwarranted and expensive down times.  These kind of
     problems are not farfetched, the sky-is-falling type
     rhetoric.  Rather they are problems both MSHA and mine
     operators alike must deal with on a regular basis such as
     unfounded complaint investigations.
                   All these things have economic impact on the
     industry and some mines will be forced into closure because
     they are no longer profitable.  Not having a job has a
     negative and very large impact on miners' health and safety. 
     
                   Because it is not supported by sound science
     demonstrating health effects, and is it technologically and
     economically feasible, the proposed rule should be
     withdrawn.
                   I'd like to introduce Mike Mauser.  He's a
     mechanical engineer with our company, and he will offer
     supplemental comments.
                   MR. TOMB:  Okay.  Before Mike starts, maybe we
     have some questions.  
                   MR. FORD:  You talk about, on page 5, the
     sentence, "A technology forcing regulation such as this one
     will inevitably result in mine closures."  And then on page
     6 at the bottom, "All these things have economic impact on
     the industry and some mines will be forced into closure
     because they are no longer profitable."
                   Can you supply us with the information that you
     have concerning the mines that are going to close?  
                   MR. LEAVITT:  I can -- I could supply you with
     some information on the costs that may be associated as far
     as filters and that sort of thing, the technology that's not
     available currently for the size and type of equipment that
     we are using, and there are some estimates from vendors of
     what they may charge.  
                   But Mike may be able to expand on this.  He
     actually contacted some of the vendors, and they weren't
     able to give us an actual quote on a price for our
     equipment.  In other words, we could not just call them up
     and order one.  They would have to make it, and it's going
     to be very expensive.
                   MR. FORD:  Okay, but I'm basically rather getting
     at the -- instead of getting at the actual prices put on
     after treatment devices on any particular machine, just the
     information that it seems like -- it's being suggested that
     mines will close down.  I'm just wondering if you have any
     information or knowledge of what mines would close down.
                   MR. TOMB:  You're asking for economic data?
                   MR. FORD:  I'm looking for any data that supports
     the sentences that mines will be forced into closure.
                   MR. LEAVITT:  What I'm trying to say there is
     that, in conjunction with the depressed gold market that we
     are currently experiencing and the economic burden that this
     standard would also add to that, I can't -- I can't supply
     you with another mine's margin of profit, if that's what
     you're asking for.
                   If you're asking for our mine's margin of profit,
     I may be able to submit that with our written comments.
                   MR. TOMB:  I think that's what you're looking for,
     right?
                   MR. FORD:  Well, basically I'm just looking for a
     list of those mines that would be forced to close down.
                   MR. TOMB:  Well, he can only address his three
     mines.
                   MR. FORD:  Right, and if he has any information at
     all for his mines or any others, we would like to see that. 
     That's all I have.
                   MR. LEAVITT:  Okay.  
                   MR. TOMB:  You understand he's looking for some
     supportive data that says that your margin of profit is this
     and you're going to have to put this amount of money into it
     over a five-year period or a 10-year period, and it's going
     to cause an economic hardship.
                   MR. LEAVITT:  Not only that, but if we -- if we
     perhaps cannot even comply with the standard, then obviously
     what alternatives are there?  
                   MR. TOMB:  Okay.  
                   MR. HANEY:  You mentioned that there is no way of
     telling which engines would be the dirtiest ones.  
                   MR. LEAVITT:  Which engines would be?
                   MR. HANEY:  Which engines would be the ones that
     are creating the excess diesel particulate matter.
                   MR. LEAVITT:  Yes.  
                   MR. TOMB:  Why wouldn't you just look at your
     particulate index from that engine and just make that
     determination from the particulate index?
                   MR. LEAVITT:  Well, what I was referring to there
     is if -- say if a piece of equipment was in an operator's
     mine malfunctioning or it was emitting more diesel
     particulate than it was yesterday when he was operating it,
     and that's what he says, but how do we quantify that?  How
     do we tell?  There is no direct exhaust measurement for DPM. 
     You can measure the gasses, but you can't measure the DPM
     with a direct reading instrument.  
                   MR. SASEEN:  Just to kind of carry on from Mr.
     Haney's comments, first, though, I think, you know, to
     clarify it, I think I know what you're talking about with no
     direct method for measuring DPM, that obviously, if you're
     in a mine and the machine, but, you know, we do as engine
     manufacturers and any test lab measures diesel particulates
     very exactly and engine test labs could measure it very
     precisely diesel particulate matter.  
              But I know, I think you're coming from in-mine vehicle
     types.  
                   But to kind of follow what Bob talked about, you
     know, from one day to another there was a NIOSH study that
     was done for MSHA for the coal side about the tune of diesel
     engines, and by doing a repeatable load test you can tell
     tune of engines from day to day, mostly by looking at carbon
     monoxides.  So there are methods out there to judge, you
     know, how the engine's progressing.  And I think, you know,
     from what you're saying here, I think some of those things
     could be used for your own evaluation of your fleet.
                   MR. KOGUT:  Mr. Leavitt, you state that several
     other federal regulatory agencies have found that the
     current scientific data does not support evidence of risk
     due to exposure of diesel particulate matter.
                   Could you specify what federal agencies have so
     stated and where they have made such findings?
                   MR. LEAVITT:  That, I believe we had some part of
     this discussion a little bit earlier, but that was referring
     to the EPA and OSHA being -- not taking any regulatory
     stance on that.
                   MR. FORD:  Well, then that involved some inference
     on your part that by not taking regulatory action against
     diesel particulates, that they have found that there is no
     current risk, so you're drawing -- you're drawing an
     inference.  Is that what you're doing?  You're drawing an
     inference from the fact that they have not taken regulatory
     action specifically against -- on DPM to saying that they've
     found that there is no risk from exposure?
                   MR. LEAVITT:  Essentially.  
                   MR. TOMB:  Any other questions?
                   (No response.)
                   MR. TOMB:  Okay.  Thank you.
                   MR. MAUSER:  Mr. Chairman and members of the 
     panel -- 
                   MR. TOMB:  Do you want to give your name?
                   MR. MAUSER:  I do.
                   MR. TOMB:  Oh, I'm sorry. I didn't hear you. 
     Okay.  Okay. 
                   MR. MAUSER:  We can do it either way.
                   MR. TOMB:  Okay, no, go ahead.
                   MR. MAUSER:  I appreciate this opportunity to
     comment on the proposed standard for controlling diesel
     particulate levels in underground metal/nonmetal mines.
                   My name is Mike, M-I-K-E, Mauser, M-A-U-S-E-R.
                   MR. TOMB:  Okay.
                   MR. MAUSER:  My credentials include a Bachelor's
     Degree in chemical engineering, a Master's in environmental
     engineering, and a doctorate in mechanical engineering.  I
     am a mechanical engineer for underground maintenance at
     Newmont Gold Company at Carlin, Nevada.  Our department is
     responsible for the purchase recommendations and maintenance
     of all the underground diesel equipment at our three
     underground mines:  Carlin, Deep Star, and Deep Post.
                   There is a definite financial advantage to a
     company to promote safety, but more importantly, underground
     miners live in small communities and are a small society
     within themselves.  We get to know each other both at work
     and outside of work over the years and in different jobs. 
     And this leads to a strong personal motivation, aside from
     company and MSHA rules and regulations, to not see anyone
     hurt.  This attitude is the foundation for maintaining a
     safe environment.  And this attitude can be the foundation
     for doing something meaningful about reducing diesel
     emissions.
                   Newmont has, in fact, been addressing diesel
     emissions for years; we burn .05 percent sulfur fuel.  We
     have retrofitted equipment with catalytic mufflers and we
     buy electronically-controlled engines.  When the proposed
     regulations came out last October, I was asked to see what
     else we could do about reducing diesel levels.
                   The first thing I did of course was to start to
     read the proposed regulations.  I also called sales reps for
     our equipment and the catalytic converts we use.  I searched
     the internet and had our librarian obtain copies of articles
     on diesel exhaust.  I spoke with the authors and other
     researchers.  I met with our health and safety personnel and
     met with people from other mines.  I participated in
     initiating and coordinating testing.  And I finally finished
     reading the proposed rule.  Through all this my focus was
     not on whether we should do anything but on what was
     feasible and what would be the best way to achieve results.
                   One MSHA researcher and author I spoke with
     suggested a combined approach:  decrease emission, increase
     ventilation, and use enclosed cabs.  He was very helpful
     about technical issues but when I brought up cost he said
     something like "You people are always saying you can't
     afford it," and I dropped that topic.  But I felt a bit
     stung and defensive about his comment.  I certainly have
     never heard any managers at Newmont automatically dismiss
     something with a possibility of meaningful health and safety
     benefits.  As I mentioned earlier, we voluntarily burn low
     sulfur fuel paying a premium of over $30,000 a year.
                   However, cost is a reality and when a cost is too
     high it isn't possible to pay it and continue to mine. 
     Furthermore, if there is reason to think something may cost
     too much we cannot plan to mine.  After doing all this
     reading and calling, I had to tell our management that we
     would not be able to meet the proposed diesel particulate
     levels with existing off-the-shelf technology.  We would
     need to either make significant fundamental and potentially
     cost prohibitive changes in the way we mine, or we would
     need to buy future generations of particulate traps at a
     purchase and operating cost that could only be guessed at
     and with reliability and performance that could only be
     hoped for.  I added that there were, however, things we
     could start to do now and I was given an immediate go ahead.
                   It took those of us working on sampling mine air
     only a few months to collect far more data in this area than
     MSHA had used as a basis for the proposed regulations.  It
     will take those of us working on equipment a little longer,
     but I am confident that we will soon be in a similar
     position.  
                   We have initiated emissions testing under load, we
     will be retrofitting filters, and we are hosting research
     funded by the Health Effects Institute at our Carlin Mine. 
     Unfortunately, we do not have results at this time.  When we 
     do, we will be in a much better position to make meaningful
     contributions toward the effort of reducing diesel
     particulates, and we hope that we can then work with MSHA to
     address problems we see with the proposed regulation while
     focusing on the goal of improving conditions underground. 
     We are motivated both personally and economically to do this
     aside from MSHA regulations.
                   As I mentioned earlier, I read the entire text of
     the proposed regulations, and I read it with the intent of
     finding out how we might -- how it might help to reduce
     diesel particulate levels.  But I was of course alert to how
     the proposed regulations would unnecessarily divert
     attention and resources from other important issues or add
     burdens without doing anything meaningful toward reducing
     these levels.  Here are some specific comments:
                   Idling of equipment:  Paragraph 57.5065(c) states,
     "Idling of mobile diesel-powered equipment in underground
     areas is prohibited except as required for normal mining
     operation."  
                   Since, and I quote from 30 CFR Part 57II,
     Supplementary Information Answer No. 24, page 58120, "MSHA
     recognizes that to administer this provision in a common
     sense manner may require the provision of examples to both
     the MSHA inspectors and to the mining community."  I suggest
     eliminating this requirement.
                   I understand that MSHA's intent is to achieve the
     lowest possible DP levels, but the miners will be aware of
     the potential health concerns so they will be able to judge
     what constitutes unnecessary idling.  The mine operator also
     will presumably have a policy in idling to help meet any DP
     standards.  There is no need for an MSHA requirement
     specifically about idling, particularly as it will
     admittedly be a potential source of future dispute.
                   Tagging equipment:  Paragraph 57.5066(b)(1)
     states, "A mine operator shall....require each miner
     operating diesel powered equipment...to affix a visible and
     dated tag to such equipment any time the miner notes any
     evidence that the equipment may require maintenance.,.."
                   We are concerned that this requirement may result
     in the operator or an individual miner receiving an MSHA
     violation for not tagging equipment that an MSHA inspector
     thinks should be tagged.  We do not believe there is any
     need for this requirement.  It is in our own best interest
     to maintain equipment at peak performance and we are better
     able than MSHA to determine how we can best accomplish this. 
     It is possible that a mine operator may elect to adopt a
     policy whereby a miner is required to tag suspect equipment,
     although we already have inspection systems in place to
     ensure all perceived problems are promptly reported and
     dealt with and we presume other operators do also.
                   Recordkeeping on mechanic skills:  Paragraph
     57.5066(c) states, "An operaTor shall retain appropriate
     evidence of the competence of any person to perform specific
     maintenance tasks..."
                   We ensure our mechanics and miners are
     appropriately trained as a matter of our own self interest.
     Our equipment represents a very large investment and keeping
     it properly maintained is critically important to
     production.  A recordkeeping requirement for mechanics'
     skills is an unnecessary burden on the operator.  Also, if
     the intent is to ensure proper maintenance, it needs to be
     recognized that proof of training does not ensure proof that
     the job was done right.  In the final analysis, proof that
     the job was done right is reflected in meeting applicable
     standards.
                   Decreasing emissions:  I doubt we will be able to
     meet the proposed standards by purchasing new engines or
     retrofitting existing engines during rebuilts.  Currently
     many of our engines are electronically controlled and
     equipped with catalytic converters.  Adding particulate
     filters is not a realistic option at this time.
                   The majority of our equipment is diesel powered
     with sizes up to 335 horsepower for our 26-ton trucks, and
     250 for our six-cubic yard loaders.  Currently available and
     proven ceramic traps are not applicable to these sizes of
     engines for the duty cycles we have.  
                   We do plan to install either ceramic trap or a Dry
     Systems Technology's Dry System control, but both will be
     experimental and costly.  I anticipate difficulties in
     assessing the performance under actual conditions with
     anything we do.  We are hoping that the research we are
     hosting will help us in this regard, but I remain skeptical.
                   Increasing ventilation:  We believe that trying to
     meet the proposed standards by increasing ventilation rates
     for mines which are already in production may not be
     feasible.  Even if additional fans and ventilation shafts
     could be economically justified compared to closing the
     mine, we would require much more dust control, which raises
     safety concerns.  I believe we may be either increasing dust
     or increasing a sliding danger on our existing steep haulage
     declines to alleviate an unproven DP exposure danger.
                   Enclosed cabs:  I do not believe adding enclosed
     cabs is an acceptable option.  As a diesel particulate
     control strategy this would only work where the equipment
     operator would need to be present and this would only be the
     case in limited situations.
                   Unnecessary equipment down time:  The proposed
     sampling and analytical method will result in at least some
     citations being written in areas where the actual DPM levels
     do not warrant them.  The proposed regulation does not given
     operators any relief for elevated results caused by carbon
     or carbon compounds other than DPM.  MSHA will simply expect
     improvements in areas such as equipment maintenance, after-
     treatment control devices, ventilation, or reductions in the
     amount of diesel equipment operating in the mine.  The cost
     of erroneous enforcement actions could be tremendous.  Some
     of these cost associated with these enforcement actions are
     as follows:
                   Downing the fleet to try and determine which
     pieces of equipment might be exhausting excess DPM -- very
     difficult to accomplish since there is no direct method for
     determining DPM levels in the exhaust of equipment.
                   Down time incurred while waiting for testing
     results because there is no direct method of testing exhaust
     systems for DPM.
                   Cost of installing, testing and maintaining after-
     treatment control devices which won't necessarily reduce the
     sampling results because the carbon and carbon compounds
     aren't coming from the equipment.
                   Increases in ventilation rates which might
     actually cause even higher sample results due to drying of
     the air and rock, which could increase the non-diesel carbon
     and carbon compounds in the air.
                   Cost of replacing engines while experimenting with
     new untested after-treatment control devices.
                   No reliable testing methods for equipment: 
     Currently a seven-gas analyzer is used to determine engine
     emissions.  However, it does not measure DPM. There is no
     standard method for measuring DPM and emissions will vary
     with the condition.  
                   One of the first things I wanted to do was in-mine
     testing on selected equipment under actual conditions.  I
     proposed we operate a loader over a period of several hours
     in an isolated section of the mine and try to measure actual
     emissions.  I had hoped that we might develop an easy
     technique for evaluating the effectiveness of any measures
     we might wish to use for reducing DPM.  I suggested this to
     management and there was no hesitation -- I got an immediate
     go ahead.
                   So I pursued this idea further.  I read the
     reports and spoke with others who had done similar studies
     while identifying potential test sites within one of our
     mines.  But I had to drop the idea for the time being when
     it became evident that it would not be practical as a means
     of evaluation.  The data would be difficult and expensive to
     collect and the precision low.  The best we could do at this
     time is to do weekly checks of carbon monoxide emissions on
     equipment while briefly loading the torque converter.
                   Then we can guess at what the DPM emissions might
     be when this equipment is operated in various ways in the
     mine such as unloaded going downhill into exhausting air
     when the engine will cool down rapidly, or uphill while
     loaded and moving with the air when the engine will heat up. 
     But we cannot know how good our guesses are or whether that
     expensive soot trap we are trying out actually works as
     advertised.
                   I am hoping that we can either find a surrogate
     for DPM or develop a method for making exhaust gas
     measurements on equipment while it is in use.  We are
     pursuing both ideas at this time.  We need to be able to
     target our effort towards equipment that will result in the
     biggest reduction for our investment in time, money and
     effort.  
                   No assurance we are doing the right thing: 
     Cleaner burning engines reported create less total mass of
     DPM but more submicron particles, which could potentially be
     more hazardous to miners health because they may be
     deposited deep within the lung.  When one considers the lack
     of consistent existing scientific data regarding the hazards
     associated with DPM exposure, is making changes which
     potentially could have a negative impact on the hazards
     really worth doing?  Are we going to spend a lot of money,
     effort and time only to reverse course after a few years?
                   Potential for unexpected impacts:  When
     regulations are technology forcing as these are, there is a
     high potential for very expensive equipment damage.  We must
     meet the deadlines for meeting the standard or the ultimate
     alternative is to shut down.  This standard does not permit
     the use of personal protective equipment or administrative
     controls even while developing strategies for controlling
     DPM, so we are forced to try different technologies without
     knowing the consequences.  This creates the potential for
     very expensive equipment damage such as engine rebuilt or
     replacement.  One such incident occurred at one of our mines
     when trying to reduce engine noise, which ultimately led to
     replacement or rebuilding of five engines at a cost of
     around $100,000.
                   I have found Newmont's management to be concerned
     and proactive about health and safety.  The people employed
     at Newmont are considered the single most valuable resource
     we have.  I believe there are problems with the regulations
     as currently drafted, but I think these can be cooperatively
     addressed.
                   MR. TOMB:  Thank you.  
                   MS. WESDOCK:  I have a question.
                   MR. TOMB:  Okay, questions?  Sandra.
                   MS. WESDOCK:  The research that you're hosting
     that is funded by HEI, when is -- when is it going to be
     completed?  Do you know?
                   MR. MAUSER:  They've been delayed on starting. 
     They start next month, June.
                   MS. WESDOCK:  Um-hmm.
                   MR. MAUSER:  And we should be getting preliminary
     results from that time on, but the complete report probably
     won't be done for a year after that, and this is done by the
     Desert Research Institute in Nevada.
                   MR. TOMB:  What's the testing for?
                   MR. MAUSER:  They are testing to come up with a
     chemical signature for diesel particulates.  That's one of
     the objectives of the study.  And I'm hoping that when they
     --
                   MR. TOMB:  Within the environment?
                   MR. MAUSER:  In the mine itself and on our
     equipment.  They have an apparatus they have built that will
     do dilution of exhaust gas directly from a piece of
     equipment in a controlled fashion, and then they will sample
     the diluted gas, you know, after it's been diluted by a
     certain ratio, and do a chemical signature, a full spectrum
     analysis on that.  And they are hoping to be able to,
     perhaps even be able to identify -- I mean, if everything
     just works like magic, I suppose, be able to go into a mine
     and say, okay, it's this piece of equipment that is the
     problem in this location, because you have a chemical
     signature from a different constituence in the rust.
                   MR. TOMB:  If your management told you to control
     diesel particulates at the applicable -- to the proposed
     levels in the --
                   MR. MAUSER:  One-sixty micrograms per cubic meter,
     yes.
                   MR. TOMB:  Right.  What would you do?
                   MR. MAUSER:  Well, I was essentially --
                   MR. TOMB:  Well, they told you to do it.  I mean,
     you have unlimited resources, go do it.  What would you do?
                   MR. MAUSER:  Well, like I said, I'd like to target
     the equipment that would give me the most return for the
     investment, and so I would be doing the research I'm doing
     now, and I would start a program that we have started where
     we do weekly testing for our CO, so we keep our fleet up as
     best we can.  And I don't think I'd be able to do it as the
     regulations are written now because of the problems we have
     with the testing itself.
                   I mean, you know, I've used this spreadsheet
     you've developed for coming up with the average.  You know,
     it's a nice idea, but what it does is it gives you a
     particulate loading for the mine as a whole, and I think a
     lot of our problem is going to be things like we have to
     control traffic in the mine itself at certain headings.  We
     have to look at these issues, and coupled with the problems
     with dust and oil mist, et cetera, we can still get hit with
     these violations.  So I mean, I never felt that I could
     guarantee management that I could keep us from -- violation
     free, although, you know, there was a possibility with
     tripling our ventilation rates and -- 
                   MR. TOMB:  Can you do that?
                   MR. MAUSER:  I don't think it's feasible at this
     point.  The problem as I see it is if I were to start out,
     were to work with a mine that's just being developed, we
     might put more ventilation shafts in as a matter of course
     for our development, or we might have lower grades so we
     don't have to worry about what we mentioned before with the
     sliding hazard where we have to water the roads.  I mean,
     we've got places where we're got a pretty good wind going
     through our drifts now, and once you think about tripling
     that and even --
                   MR. TOMB:  Does it go to the work areas?
                   MR. MAUSER:  Well, see, that's another issue, is
     that we reventilate.  I mean, we don't -- we don't ventilate
     just the face and its exhausted.  
                   MR. KOGUT:  Could you describe a little bit more,
     in a little bit more detail the data that you've collected -
     -
                   MR. MAUSER:  No.
                   MR. FORD:  -- on DPM?  
                   MR. MAUSER:  Oh, throughout the mine?
                   MR. KOGUT:  The data that you're referring to here
     you said in the last -- you said that after the proposal was
     put out, that you've --
                   MR. MAUSER:  No, I've made some real rough
     calculations.  I assumed .1 grams per cubic --
                   MR. KOGUT:  No, I'm talking about -- I thought you
     were referring to -- well, what I'm referring to is on page
     2 of your testimony.  You said, "It took those of us working
     on sampling mine air only a few months to collect far more
     data in this area that MSHA had used as a basis for the
     regulation."
                   I assume you were talking about --
                   MR. MAUSER:  I'm talking about the NIOSH 5040
     samples that we've collected, and I was in on the early
     stages of setting up the program.  I know we had literally
     hundreds of samples.  I think Wes would be better able to
     address that.
                   MR. KOGUT:  So you're talking about the samples
     that you've collected in conjunction with the NIOSH/NCI
     study?  
                   MR. MAUSER:  No, the samples we collected once
     these proposed rules were published.  We immediately started
     sampling in our mine and coordinated with other mines to
     collect data, and just see how bad it was --
                   MR. KOGUT:  Right.
                   MR. MAUSER:  -- and how this method worked.
                   MR. KOGUT:  Okay, that's what I was asking about. 
     So are you going to be providing us with those data, or can
     you describe the results a little bit more than you have
     here?
                   MR. MAUSER:  I couldn't any more than has already
     been done here today.
                   MR. KOGUT:  Okay.  
                   MR. MAUSER:  No.  
                   MR. KOGUT:  Will you provide us with the data?
                   MR. MAUSER:  I think that would be -- 
                   MR. LEAVITT:  We could respond to some degree in
     our written comments.  It was part of the Nevada Mining
     Association samples that were already presented today.  Our
     data is included.
                   MR. KOGUT:  Oh, so it's a subset of the data --
                   MR. MAUSER:  Yeah.
                   MR. KOGUT:  -- that were presented this morning?
                   MR. MAUSER:  Yeah.  
                   MR. TOMB:  Okay.  Any other questions?
                   (No response.)
                   MR. TOMB:  Okay, thank you very much.
                   MR. MAUSER:  Thank you.
                   MR. TOMB:  Appreciate you coming and making your
     presentation.  
                   Our next presenters will be from Barrick
     Goldstrike Mines Incorporated, Mr. Sheffield.
                   MR. SHEFFIELD:  Good afternoon, Mr. Chairman,
     members of the panel.  My name is David Sheffield,
     Superintendent of Safety and Health Services for Barrick
     Goldstrike Mines Inc.  Also, for the record I am chairman of
     the Safety and Health Committee for the Nevada Mining
     Association.  
                   Barrick is the largest gold producer in the State
     of Nevada, operating both surface and underground mines,
     with over 1700 employees.  At all of our sites operating
     excellence includes a strong sense of responsibility to
     local communities, the environment, and the health and
     safety of our employees.  
                   An effective safety and health program protects
     our employees, controls costs and increases productivity. 
     More importantly, safety and health are fundamental values
     at Barrick because it is the right thing to do.  
                   We share the agency's goal of protecting our
     company's most precious resource, the underground metal and
     nonmetal miner.  Yet we find ourselves questioning the
     agency's approach to the control of diesel particulate
     matter and its conclusions based on incomplete and
     unsubstantiated data.  As a grass roots stakeholder in the
     mining community, it pains us that an agency of the federal
     government would promulgate a proposed rule without first
     including in the developmental process the very industry for
     whom it claims to provide assistance and oversight.  
                   Accepted organizational theory teaches us the best
     solutions are always created when everybody has been invited
     to the table for a common purpose.
                   We do not live in the dawn of the industrial era
     with irresponsible corporations, nor can we stand idly by
     while a minority faction within the mining community
     attempts to dictate the form and content of this national
     debate regarding diesel particulate matter issues.
                   The very government we support through service and
     our tax dollars, including the Mine Safety and Health
     Administration, is a government of the people, by the
     people, for the people.  So therefore how can the Mine
     Safety and Health Administration claim that the agency
     unequivocally serves all people in mining, the mining
     industry, the mining support industries, and the
     manufacturers with all their associated employees, have not
     been involved from the beginning in this regulatory process.
                   Had these entities been involved from the
     beginning, we doubt that the irreconcilable flaws with the
     proposed rule would have occurred.
                   The mining industry provided one of the highest
     standards of living for its employees and their families in
     the United States.  We are an industry that contributes
     favorably to the Gross National Product, and we are an
     industry that possesses positive net exports.  We are the
     raw materials and backbone of our national defense, our
     telecommunications, and our global superpower status, not to
     mention a standard of living unsurpassed in the world's
     history.
                   If you cripple our industry with premature,
     unsubstantiated, unresponsible legislation, you will cripple
     our nation.
                   Barrick has already submitted to MSHA a written
     comment dated April 30th of this year on the proposed rule,
     and we plan on filing a final comment by the close of the
     record on July 26th.  Barrick appreciates this opportunity
     to appear before you today, to communicate to you major
     concerns with several very serious flaws and deficiencies in
     the proposed rule.
                   For the record, let me state that Barrick fully
     supports the message and testimony of the National Mining
     Association, the Nevada Mining Association, and the
     individual grass roots stakeholders, that is, the mining
     companies who have testified before and after me, and at the
     subsequent hearings to come.
                   Specifically, we believe the proposed rule is a
     premature rush to regulation.  As MSHA has substantially
     acknowledged in its preamble, the available evidence on the
     possible carcinogenic and non-carcinogenic health effects of
     exposure to diesel particulate matter is grossly deficient
     and does not support the propose standards.
                   This deficiency is especially troubling with
     respect to establishing any reliable linkage of adverse
     health effects to any particular exposure level and requires
     a more careful evaluation of an appropriate standard.
                   In its preamble to the proposed rule, MSHA has
     frequently cited to the Supreme Court's Benzene decision for
     the proposition that MSHA may proceed in the absence of
     absolute scientific certainty as to a significant risk of
     material health impairment.  MSHA fails, however, to
     recognize that the Benzene decision struck down OSHA's
     Benzene regulation in part because it was not supported by
     appropriate findings of exposure-based risk -- a flaw shared
     with the proposed diesel particulate matter rule.
                   We fear that the agency is rushing to regulation
     with this standard that is not supported by the agency's own
     record.  In the Benzene decision, the Supreme Court
     emphasized inadequacies in OSHA's findings concerning a
     "dose response correlation," a dose response correlation
     between adverse health effects and any realistic
     occupational exposure level.  
                   Based on this precedent, we recommend that MSHA
     proceed in a technically supportable manner, especially in
     view of the fact, as noted by the agency, that NIOSH and the
     National Cancer Institute are presently collaborating on
     what is expected to be a more definitive study about the
     relationship between diesel particulate matter and disease
     outcomes than is presently available.  Hopefully this study
     will be designed to avoid some of the structural flaws in
     existing studies purporting to show carcinogenic or other
     disease associations with diesel particulate matter
     exposure.
                   Second, we believe that the NIOSH 5040 method does
     not adequately discriminate between diesel particulate
     matter and other organically-based matter in samples
     collected from exposure areas of our underground metal
     mines.  We have carbon-bearing rock in our underground mines
     that are creating tremendous interferences with our
     sampling.  We have been unable in our NIOSH 5040 sampling to
     screen out interferences from carbon-bearing rock, oil mist
     and cigarette smoke through the use of cyclone pre-selective
     sampling methods.  These interferences render our results
     completely unreliable as indicators of diesel particulate
     matter.
                   As you know, similar problems with interferences
     in underground coal mine sampling led MSHA to reject a PEL
     approach in that mining sector.  The same problem exists at
     Barrick and other underground metal mines in Nevada, as
     evidenced with earlier presentations.
                   In addition, we fail to discern in the preamble
     MSHA's scientific basis for its asserted 80 percent ratio
     between total carbon and diesel particulate matter.  While
     the NIOSH 5040 method performs its intended task of
     capturing total carbon levels, it cannot differentiate
     between total carbon and diesel particulate matter.  In
     fact, it appears quite useless for measuring actual
     quantities of airborne diesel particulate matter that may be
     present relative to other sources of airborne carbon, such
     as from dust from our carbon-bearing rock.
                   In addition, the sampling methodology has not been
     proven for this purpose.  
                   Similarly, our preliminary information indicates
     that existing laboratory sample determinations are
     questionable.  This troubles us in view of MSHA's prior
     problems with reliable lab results.
                   In summary, we believe that there are no reliable
     methods to test for diesel particulate matter in Nevada
     underground metal mines.  
                   Third, we find the cost estimates grossly
     understated and the economic feasibility of the proposed
     rule severely lacking in research and without adequate
     foundation.  As MSHA acknowledges under the relevant
     provisions of the Mine Act, it must consider the feasibility
     of its proposed rule both from technical and economic
     perspectives.
                   MSHA's economic and technical feasibility
     analyses, along with its projected cost estimates, were not
     developed in collaboration with the mining industry.  In
     addition, the technical feasibility of appropriate after-
     treatment control devices are not available on the market
     for the types and sizes of equipment used in our underground
     operations.  This is due to a number of variables, including
     variations in duty cycles, exhaust temperatures required for
     filter regeneration, and inconsistences in performance of
     catalysts. 
                   Accordingly, we strongly urge from MSHA the
     necessary time to explore and to continue development of
     viable approaches similar to those suggested in MSHA's
     toolbox instead of the agency rushing headlong with the
     regulations with inaccurate, unworkable and infeasible
     options.  
                   Fourth, Barrick is highly concerned with several
     of the proposed rule's specific provisions and will address
     these areas more completely during our written comments
     filed at the close of the record.  In general, the proposed
     rule is overcomplicated and duplicates very substantive
     areas such as miner training, maintenance standards, and
     recordkeeping.
                   Fifth and finally, Barrick endorses the Nevada
     Mining Association's criticism of the agency's continued
     downgrading of administrative controls and the use of
     personal protective equipment in favor of considerably more
     expensive, presently infeasible engineering controls.  
                   Today's professional miners and mine operators
     reflect the safety and health conscious attitude prevalent
     in modern mining.  Barrick believes that it makes more sense 
     to reduce potential safety and health risk with an effective
     combination of engineering controls, administrative controls
     and personal protective equipment.
                    As our track record demonstrates, Barrick
     continuously involves our employees in finding viable
     protective solutions, helping to lead the metal/nonmetal
     mining industry in ensuring that we are on the cutting edges
     of new technologies.  
                   We recommend the Mine Safety and Health
     Administration encourage flexible controlled approaches for
     diesel particulate matter exposure and allow mine operators
     to utilize every effective available means for the
     protection of their employees, including administrative
     controls and personal protective equipment.  
                   The health and safety of employees cannot be
     ensured merely by passing of some mandatory regulation. 
     Fundamentally the safety and health of employees are
     dependent upon personal responsibility and an organization's
     commitment to do that which is right.  
                   It is the right thing for Barrick to provide
     health, dental and vision benefits with all premiums paid to
     our employees and their families.   It is right for Barrick
     to provide a 401(k) plan with matching funds, and additional
     company-funded pension savings plan for our employees.  It
     is right for Barrick to spend 1.25 million dollars per year
     for scholarships to college-age dependents of our employees. 
     It is right for Barrick to spend 1.4 million in our local
     community per year where our employees and their families
     live.  And it is the right thing for Barrick to protect
     their employees from demonstrated health risk and all
     physical safety hazards.
                   If MSHA is truly concerned about the health and
     safety of the miner, then Barrick invites MSHA and anyone
     else willing to participate to the table to discuss this or
     any other safety or health issue in a cooperative effort. 
     We respectfully suggest that MSHA does not possess a
     monopoly on solutions to the diesel particulate matter issue
     or a monopoly on the concern for miners' welfare.  Barrick
     will continue to do that which is right.  We challenge MSHA
     to do the same.
                   (Applause.)
                   MR. TOMB:  Thank you for your presentation.  
                   Wait, we may have some questions.  Sandra?  Jon? 
     Jim?
                   I'd like to ask one question.
                   MR. SHEFFIELD:  Sure.  
                   MR. TOMB:  Do you have any data to support from
     your mind -- support what the levels are in your mind, and
     basically what you've done to clarify whether those levels
     are confounded with other problems or not?
                   MR. SHEFFIELD:  Yes, we do have data.  We were
     included in the Nevada Mining Association, compilation of
     data that we presented this morning, and we're in that test
     pool.  
                   MR. TOMB:  I'm specifically asking from your mind
     do you have individual occupational measurements of the
     people in those mines? 
                   From the presentation I saw this morning, I didn't
     see any regular occupational measurements as to what levels
     people are exposed to, whether it's total carbon from all
     contaminants, or total carbon from diesel, and I haven't
     seen any of that data yet.  I'm just wondering if you -- you
     know, you seem to have taken a very proactive role in your
     mind, and I'm just asking if you have that kind of
     information available. 
                   MR. SHEFFIELD:  We have a very comprehensive
     industrial hygiene program.  We have three industrial
     hygienists on staff; one for the test pool services and then
     an overall director.  And we continuously take sampling, not
     just -- and we have the same problems everyone else has
     mentioned today.  We can't ascertain specifically any type
     of reading directly of diesel particulate because of the
     confounders, but we continuously monitor under the current
     law for all types of potential hazards for our miners, and
     we continuously do that across the spectrum.  So this is
     just one more item that -- you know, that we will put into
     our --
                   MR. TOMB:  Well, can you supply specific
     information relative to the measurements that you have made?
                   MR. SHEFFIELD:  I will do that.  I'll supply you
     an executive summary.  But just like when MSHA comes out to
     do sampling on whether it's mercury or dust or whatever, we
     have a very extensive program.  But, unfortunately, when we
     go to conference and we show two years, three years, five
     years worth of data and MSHA does one single sample, that's
     not taken into consideration.  And so under the law we're
     not obligated to provide that data.  I'll provide that data
     on behalf of the DPM and in a mass group setting, but I
     won't give you my individual data.  No, sir.  
                   MR. TOMB:  Well, this is an opportunity for
     cooperative effort where the committee could look at some
     important date if you have it.  
                   MR. SHEFFIELD:  Well, before I've mentioned we're
     ready to sit down and chat, but I'm not going to have a rule
     thrown out first and then say, "Scramble and see what you
     can do.  Come forward first.  You know, Mr. McAteer came out
     to our site and he -- and mentioned technological advances
     that we have.  So if MSHA is serious, we are willing to sit
     down, but we're not going to sit down on the down end, we
     want to sit as an equal partnership.  We don't want to sit
     down where our hands are tied.
                   MR. TOMB:  Okay.  Thank you for your presentation.
                   MR. SHEFFIELD:  You're welcome.  
                   MR. TOMB:  Our next presenter will be Homestake
     Mining Company, Bruce Haber -- Huber.  I'm sorry.
                   (Slide.)
                   MR. HUBER:  My name is Bruce Huber.  I'm employed
     by Homestake Mining Company as the Director of Safety and
     Health at the Homestake Mine in South Dakota.  Also with me
     today are Mr. John Mark, our Senior Ventilation Engineer,
     and Mr. Mike McGivern, our Industrial Hygienist, who I'm
     sure will be happy to answer any questions you may have
     following my comments.
                   Mr. Chairman, members of the committee, thank you
     for allowing us to be here today.  We at Homestake agree
     with many of the concerns voiced by our colleagues, and
     while it is not our intention to reiterate everything you
     have already heard, we would like to underscore a few
     important points.
                   At the Homestake Mine we have collected a number
     of carbon samples using the MSHA 5040 method. 
                   (Slide.)
                   A problem was evident when total carbon was
     detected in a sample collected in a crusher room with no
     diesel source.  
                   Jon, I must be shooting directly at you.
                   (Slide.)
                   This thermogram run on the initial sample
     indicates 194 micrograms per cubic meter or meter tube of
     total carbon.  It's difficult to read on the screen, but all
     of this carbon was organic.  Realizing we had a problem
     immediately, Mr. McGivern went to Appendix C of the NIOSH
     5040 method, and we requested our lab reanalyze the sample
     using the certification process.  This process is supposed
     to eliminate carbon in the sample from carbonate naturally
     occurring in our rock.  
                   As you can see, 50 percent of the organic carbon
     was removed using their certification process.  More
     importantly, what remains, 50 percent of the original carbon
     amount, a significant level, 87.5 micrograms that is not
     diesel particulate matter and is not carbonate matter.  
                   (Comment from the audience.)
                   MR. HUBER:  So our question is what is the
     remaining carbon.  We simply do not know.  We can conclude
     that the NIOSH 5040 method does not accurately measure
     diesel particulate matter with this interference in our
     mine, gold mine.
                   (Slide.)
                   A couple of other points we'd like to underscore.
                   MR. TOMB:  Could I ask a question on that, please,
     if you don't mind?
                   MR. HUBER:  Yes.  
                   MR. TOMB:  What type of sample was that, was it
     particle, or submicron?
                   MR. MCGIVERN:  It was an open-face.  
                   MR. TOMB:  Open-faced total, total sample.
                   MR. MCGIVERN:  Right.
                   MR. HUBER:  Should an accurate sampling method
     become available, we agree with our colleagues and would
     emphasize the point that MSHA's proposed area samples have
     no relevance to miners' exposures.  For example, loaders
     currently being purchased by Homestake are equipped with
     pressurized and filtered cabs.  If MSHA were to use area
     samples from outside the cab , true miners' exposure is not
     measured.  
                   (Slide.)
                   An area of diesel particulate filters:  Using
     these filters proved to be ineffective with several
     applications, specifically, light-duty vehicles, equipment
     with cooler running engines and equipment with light-duty
     cycles.
                   (Slide.)
                   Finally, in the area of controls should the
     sampling issue to be resolved and a TLV result, if
     engineering controls fail to bring compliance, we believe
     that respirators have been proven to be an effective -- to
     be effective as a means of protecting the health of a miner,
     and should be allowed as a method of compliance.  
                   That's all I have, Mr. Chairman.  Thank you.
                   MR. TOMB:  Okay, thank you.
                   MR. MCGIVERN:  Any questions?  
                   MR. TOMB:  We have a couple.
                   MR. MCGIVERN:  A couple.  
                   MR. TOMB:  When you show data, we always like to
     see it.  So that's one thing, can you supply us a little bit
     of information on the type of samples that were collected,
     if you can give us the mass on the filter, if we can get
     that.  Maybe the sampling time like Mr. Kogut has asked for
     before; just to supply us with some information.
                   Do you have any idea how many measurements you
     made?
                   MR. MCGIVERN:  Two.  
                   MR. TOMB:  Two?  Okay.  So we'd like to have that
     information if you can --
                   MR. MCGIVERN:  We can supply that.  We have
     written comments already explaining that data, but we can
     supply you the actual lab data, sure.
                   MR. TOMB:  I think the other thing is you said
     your laboratory analyzed the samples or did you send them
     out?
                   MR. MCGIVERN:  Sent them out to DataChem.
                   MR. TOMB:  You sent them out?
                   MR. MCGIVERN:  Yes.  
                   MR. TOMB:  Okay.  DataChem, okay.  
                   MR. HANEY:  A couple questions.
                   First of all, where you have on the right half of
     your drawing where you have it marked "OC peaks," is that
     supposed to be EC peaks, elemental carbon?
                   MR. MCGIVERN:  It was all organic carbon that
     showed up.  We had no elemental carbon show up in the
     crusher building.  
                   MR. HANEY:  Okay.  Okay, and do you have any idea
     what the concentration of dust in that building was?
                   MR. MCGIVERN:  I don't.  We had to run the sample
     for quite some time just to get some loading on it
     whatsoever, but we didn't go back and do another to try to
     make some comparison.
                   MR. HANEY:  Okay.  You also said that you had
     tested diesel particulate filters and that they were
     ineffective on light-duty vehicles. 
                   By "ineffective," do you mean that they didn't
     work at all or was it just because they weren't reaching a
     temperature --
                   MR. MCGIVERN:  Plugging.
                   MR. HANEY:  They were plugging.  
                   MR. MCGIVERN:  Plugging and not reaching
     temperature.  
                   MR. HANEY:  Okay.  So they didn't regenerate. 
     They worked, I guess they worked, but they plugged.  
                   MR. MCGIVERN:  For short periods of time, yes.
                   MR. HANEY:  Okay.  Okay, thank you.
                   MR. SASEEN:  Just as a follow up, did you try a
     system to head off-board regeneration?
                   MR. MCGIVERN:  Say that again, George.
                   MR. SASEEN:  Did you try any systems that had off-
     board regeneration where you would take the filters off and
     put them in an oven?  
                   I mean, it's a common knowledge that with the
     light duty you don't, you know, get the temperatures so you
     can get systems that you can regenerate off-board or even
     passive regeneration, like an oil burner.  I just wondered
     if you tried any of those systems --
                   MR. MARKS:  We haven't.  We've investigated that.
                   MR. SASEEN:  I'm sorry?
                   MR. MARKS:  We haven't done that yet, but we've
     investigated it.
                   MR. SASEEN:  Okay,
                   MR. MARKS:  And we realize that we may have -- if
     we go to, you know, diesel particulate filters further.
                   MR. SASEEN:  What size engines were these that you
     tried these on?
                   MR. MCGIVERN:  Probably at that time 150
     horsepower, and one of the filters plugged within 48 hours,
     and one we did have some success with.
                   MR. SASEEN:  What kind of -- was it like a
     personnel vehicle or can you tell --
                   MR. MCGIVERN:  Loader, two-yard loader.
                   MR. SASEEN:  Oh, it was a loader?
                   MR. MCGIVERN:  Yes.  Three and a half yard loader. 
     One of them was run with the Bureau of Mines and we were
     able to have some success with that.  Others, we had no
     success with.  
                   MR. SASEEN:  Did you have a cost on what it cost
     you to equip that with a filter?  Even though it didn't
     work, did you get a --
                   MR. MCGIVERN:  It was 10 years ago.
                   MR. SASEEN:  Oh, okay.  
                   MR. MCGIVERN:  Were six, seven, eight thousand
     dollars a piece at the time.
                   MR. SASEEN:  Okay.  
                   MR. MCGIVERN:  There was an additional cost to
     install it with some fittings.  Then we ran it.
                   MR. SASEEN:  Okay, thank you.  
                   MR. TOMB:  Thank you.  
                   MR. CUSTER:  I have a question.
                   MR. TOMB:  Oh, okay.  I'm sorry.  
                   MR. CUSTER:  I noted in -- under your control side
     you mention that respirators are effective and should not be
     completely eliminated as a matter of compliance, if
     engineering controls are exhausted, and that's been a
     recurring theme obviously throughout this entire hearing. 
     But you are the first to not have mentioned administrative
     controls.
                   Was that an oversight or you don't believe in the
     effectiveness of administrative controls?  
                   MR. MARKS:  Probably administrative controls would
     not work for us, not for reducing diesel, but productivity-
     wise it's -- in our mining method, we probably would not
     choose that as an option.  
                   MR. CUSTER:  Thank you.  
                   MR. TOMB:  One other question.  Excuse me.
                   Did you happen to use the estimator at all to look
     at conceivably what your levels could be with different
     controls that you have available to you?  
                   MR. MARKS:  We haven't yet, but we'd like to.
                   MR. TOMB:  Okay.
                   MR. MARKS:  We'd like to try it. 
                   MS. WESDOCK:  If you try it, could you submit your
     results for the record?  
                   MR. MARKS:  Well, we'd like to try and see what we
     come up with.
                   MS. WESDOCK:  Okay.  
                   MR. SASEEN:  Do you have an electronic copy of it
     or did you get, or do you just have -- do you have an
     electronic copy?  
                   MR. MARKS:  We don't.  
                   MR. SASEEN:  I could send you one.
                   MR. MARKS:  I would appreciate it.
                   MR. MCGIVERN:  Anything else?  
                   MS. WESDOCK:  Thank you.  
                   MR. TOMB:  Thank you very much.  
                   That completes my list of people that have
     registered to speak.  Is there anybody else in the audience
     that would like to make a presentation or give any comments?
                   (No response.)
                   MR. TOMB:  Okay, I'd like to make a correction to,
     I guess, something that I said in my opening statement.  I
     can't remember what it was.
                   (Laughter.)
                   But it had to do with the final date for comments
     for the record, and this is for both coal and for metal and
     nonmetal, and that's July 26, 1999.  So if I misstated
     something in the record, just so you know that that's the
     final deadline for getting comments into us.  
                   I want to take this opportunity to really thank
     all of you that took the trouble to come in and display data
     and to make presentations to us, because as some of you have
     insinuated -- I don't want to say insinuated, that might not
     be the right word -- but have conveyed to us that maybe we
     didn't collect sufficient data for the record, from making
     measurements, I want to say that anything that you can give
     us to help support the measurements that we do have is
     valuable information.  
                   I want to caution you though that the data that
     you submit, we need to have it in a certain form from the
     standpoint that we've asked for.  We need the baseline data. 
     We just don't need a table that says that 15 measurements
     were made and these are the average.  It's better if you can
     give us that data, like some of you have and some of you, I
     hope, can supply to us.  
                   But I want to thank you for your presentations and
     the input that you've had here today.  So thank you very
     much.  This closes the meeting.
                   (Whereupon, at 5:05 p.m., the meeting was
     concluded.)
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     //                        REPORTER'S CERTIFICATE
     
     DOCKET NO.:        N/A
     CASE TITLE:        Diesel Particulate Matter
     HEARING DATE:      May 11, 1999
     LOCATION: Salt Lake City, Utah
     
         I hereby certify that the proceedings and evidence are
     contained fully and accurately on the tapes and notes
     reported by me at the hearing in the above case before the
     Mine Safety and Health Administration.
     
     
                        Date:  May 11, 1999
     
                            Raymond Vetter   
                        Official Reporter
                        Heritage Reporting Corporation
                        Suite 600
                        1220 L Street, N. W.
                        Washington, D. C.  20005