1

           2

           3                         PUBLIC HEARING

           4                               ON

           5                MSHA'S PROPOSED RULE FOR REFUGE

           6             ALTERNATIVES FOR UNDERGROUND COAL MINES

           7

           8
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           9

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          11                         AUGUST 5, 2008

          12                            9:00 A.M.

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          15               *  *  *  *             *  *  *  *

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          18                  HILTON SUITES LEXINGTON GREEN

          19                       LEXINGTON, KENTUCKY

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          21

          22               *  *  *  *             *  *  *  *

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          25

                                                                       1


           1                            MODERATOR

           2                      Ms. Patricia W. Silvey
                     Director, Mine Safety and Health Administration
           3         Office of Standards, Regulations and Variances

           4

           5                          PANEL MEMBERS:

           6                         Mr. Larry Davey
                                   Mr. Howard Epperly
           7                         Mr. Eric Sherer
                                     Mr. Ronald Ford
           8                         Mr. Steve Turow

           9
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          10

          11

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          14

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                                                                       2


           1                       MS. SILVEY:  Let's get started this

           2     morning.  Good morning.  My name is Patricia W. Silvey.

           3     I am the Director of the Mine Safety and Health

           4     Administration Office of Standards, Regulations, and

           5     Variances.  I will be the moderator of this public

           6     hearing on MSHA's Proposed Rule on Refuge Alternatives

           7     for Underground Coal Mines.  On behalf of Richard E.

           8     Stickler, the Acting Assistant Secretary of Labor for

           9     Mine Safety and Health, I want to welcome all of you to

          10     today's hearing.

          11                       Before we get started for this

          12     hearing, and as we approach the one-year anniversary of

          13     the Crandell Canyon accident, I would like to ask all

          14     of you if you would pause with me and the panel for a

          15     moment of silence in memory of the dedicated miners and

          16     the heroic efforts of the rescuers, of the three

          17     rescuers who lost their lives in the Crandall Canyon

          18     accident; and as many of you know, including one of

          19     MSHA's own.  I would also ask you to take this memorial

          20     pause in memory of all the miners who have lost their

          21     lives working in the mines in this country from the

          22     beginning of time and throughout the world.  And as I

          23     know we will hear later on this morning, and take a

          24     particular reflection of the miners who lost their

          25     lives in the Kentucky Darby mine explosion.  So if you

                                                                       3


           1     would pause with me for a moment of silence.  Thank

           2     you.

           3                       At this point I'd like to introduce

           4     the members of the MSHA panel, and members of this

           5     panel were instrumental in drafting the document that

           6     serves as the agency's proposal.  To my right is Howard

           7     Epperly, and Howard is the team leader of this project.

           8     He is with the MSHA's Approval and Certification Center

           9     in the Office of Technical Support.  To his right Larry

          10     Davey.  And I'd like to introduce Larry.  Larry

          11     actually is a member of Occupational Safety and Health

          12     Administration, or as I call it OSHA, and he is on

          13     detail to MSHA so we -- to help us develop this rule

          14     and get it out in a quick period of time.

          15                       To my left, Eric Sherer.  Eric is

          16     with the Office of Coal Mine Safety and Health.  To his

          17     left Ron Ford.  Ron is an economist in my office.  And

          18     to his left Steve Turow.  Steve is with the Department

          19     of Labor's Office of the Solicitor.

          20                       This is the third, as many of you

          21     know, of four public hearings on the proposed rule.  We

          22     held hearings in Salt Lake City and Charleston, West

          23     Virginia last week and the fourth and final hearing

          24     will be in Birmingham on Thursday, August 7th.  The

          25     comment period for the proposal closes on August 18th.

                                                                       4


           1     MSHA must receive your comments by midnight Eastern

           2     Daylight Savings Time on that date.  You can view any

           3     comments on the agency's website at www.msha.gov.  And

           4     in the back of the room we have a few copies of the

           5     proposal and the Preliminary Regulatory Economic

           6     Analysis.

           7                       The proposed rule, as many of you

           8     know, would implement the provisions of Section 13 of

           9     the Mine Improvement and New Emergency Response or the

          10     MINER Act of 2006 and would apply only to underground

          11     coal mines.

          12                       The MINER Act requires that the

          13     National Institute for Occupational Safety and Health

          14     conduct research on refuge alternatives.  NIOSH issued

          15     its report in January of 2008.

          16                       MSHA's proposed rule is based on the

          17     agency's data and experience, recommendations from the

          18     NIOSH report, research on available and developing

          19     technology, and regulations of several states.

          20                       Before I start to discuss the

          21     proposal, I want to reiterate and underscore an

          22     important mine emergency principle embodied by both

          23     MSHA and the mining community, it is a longstanding

          24     principle that in the event of a mine emergency

          25     underground the first line of defense is for the miner

                                                                       5


           1     to try to escape.  Only if escape is impossible would

           2     the provisions of the proposal come into play.

           3                       Under the proposed rule a refuge

           4     alternative would provide a protected secure space with

           5     an isolated atmosphere that creates a life-sustaining

           6     environment to protect miners and assist them with

           7     escape in the event of a mine emergency.

           8                       The proposed rule allows the use of

           9     several types of refuge alternatives and includes

          10     requirements that the manufacturer or third-party test

          11     the refuge alternative and its components prior to

          12     obtaining MSHA approval.

          13                       Under the proposal three types of

          14     refuge alternatives would be allowed, a prefabricated

          15     self-contained unit; a secure space constructed in

          16     place; and materials prepositioned for miners to use to

          17     construct a secured space.

          18                       Some of the major provisions of the

          19     proposed rule are refuge alternatives would need to be

          20     at least 15 square feet of floor space and 60 cubic

          21     feet of volume per person.

          22                       The capacity of refuge alternatives

          23     near the working section would be the maximum number of

          24     persons that can be expected.  The capacity of refuge

          25     alternatives in an outby area would be the maximum

                                                                       6


           1     number of persons assigned to work in the area.

           2                       Refuge alternatives would be located

           3     between a thousand feet and 2,000 feet from the working

           4     face and where mechanized mining equipment is being

           5     installed or removed.  For outby areas, refuge

           6     alternatives would be located within one-hour travel

           7     distances, however, the operator may request and the

           8     district manager may approve a different location based

           9     on an assessment of risks to person in outby areas.

          10                       Refuge alternatives and their

          11     components would need to sustain persons for 96 hours

          12     or 48 hours if advanced arrangements are made for

          13     additional supplies, particularly air from the surface.

          14                       Food, water, lighting, sanitation,

          15     and a two-way communication system would need to be

          16     provided.

          17                       Refuge alternatives approved by

          18     states or by MSHA in the Emergency Response Plan prior

          19     to promulgation of the final rule would be allowed

          20     until replaced or a ten-year maximum.  And the refuge

          21     alternative components approved by states or by MSHA in

          22     the Emergency Response Plan would be allowed until

          23     replaced or a five-year maximum.

          24                       The location, capability, and

          25     capacity of refuge alternatives would be addressed in

                                                                       7


           1     the written Emergency Response Plans.

           2                       Training of miners to locate,

           3     transport, activate, use, and maintain refuge

           4     alternatives would be integrated into existing

           5     quarterly drills and annual expectations training.

           6                       Pre-shift examinations of refuge

           7     alternatives would be required.

           8                       Refuge alternatives would need to be

           9     located on mine maps.

          10                       MSHA has estimated the economic

          11     impact of the proposal and has included a discussion of

          12     the cost/benefit impact on small mines and paperwork

          13     requirements in the preamble to the proposal and the

          14     Preliminary Regulatory Economic Analysis of the

          15     preamble.  The preamble assesses the provision in the

          16     rule and includes a complete discussion of a number of

          17     specific requests for comment.

          18                       I would like to briefly mention some

          19     of them here.  MSHA requests comments on the estimated

          20     service life of prefabricated self-contained refuge

          21     alternatives and estimated service life of components;

          22                       The proposed definition for

          23     breathable oxygen as 99 percent pure oxygen with no

          24     harmful impurities; also the proposed minimum of 96

          25     hours of breathable air;

                                                                       8


           1                       The sources of heat generation within

           2     a refuge alternative, methods for mitigating heat

           3     stress and heat stroke, and methods for measuring heat

           4     stress on persons occupying refuge alternatives;

           5                       The proposal would require that the

           6     apparent temperature within refuge alternatives in use

           7     at full capacity not exceed 95 degrees Fahrenheit.  And

           8     I would like to note that Footnotes 1 and 2 in the

           9     preamble should have cited the NIOSH report as the

          10     basis for the agency's proposal on apparent

          11     temperature.

          12                       We also request comments on whether a

          13     requirement that refuge alternatives be designed with a

          14     means to signal rescuers on the surface should be added

          15     in the final rule.  This would assure that rescuers on

          16     the surface could be contacted if the communication

          17     systems become inoperable.

          18                       Also, whether the final rule should

          19     include a requirement that the manufacturer design

          20     refuge alternatives with a means to signal underground

          21     rescuers with a homing device.  This would assure that

          22     rescuers could detect trapped miners within the mine.

          23                       The proposal would require that a

          24     refuge alternative provide a two-way communication

          25     facility that is part of the mine communications system

                                                                       9


           1     which can be used from inside the refuge alternative,

           2     and an additional system as defined in the operator's

           3     approved Emergency Response Plan, or ERP.

           4                       I would also like to clarify that the

           5     proposal approval requirements in 7.504(c)(1) should

           6     reflect the same requirements as the proposed safety

           7     standards.

           8                       We also ask for comments on the

           9     types, sources, and magnitude of lighting needed for

          10     refuge alternatives.

          11                       Footnote 3 in the preamble should

          12     have cited Pages 124 and 25 from the August 23rd, 1999

          13     revision of the Department of Defense Standards, the

          14     proposed minimum space and volume requirements and the

          15     feasibility of using certain types of refuge

          16     alternatives in low coal mines.

          17                       We also ask for comments on the

          18     proposed minimum flow rate of 12.5 cubic feet per

          19     minute of breathable air for each miner.

          20                       We also requested comments on the

          21     proposed setting for pressure relief and whether a high

          22     pressure relief should be required.  The proposal would

          23     require that fans or compressors provide positive

          24     pressure and an automatic means to assure that the

          25     pressure is relieved in the refuge alternative at 0.25

                                                                      10


           1     PSI above mine atmospheric pressure;

           2                       The proposed requirement for carbon

           3     monoxide detectors and for compressors or fans at the

           4     surface, and that they provide automatic and visual

           5     alarms if carbon monoxide levels in supplied air

           6     exceeds ten parts per million;

           7                       The visual damage that would be

           8     revealed during pre-shift examinations;

           9                       The proposed rule would require that

          10     refuge alternatives be designed to provide a means to

          11     indicate unauthorized entry or tampering and allow for

          12     pre-shift examination or critical components without

          13     entering the structure.

          14                       The agency is concerned with the

          15     feasibility and practicality of visually checking the

          16     status of refuge alternatives without having to enter

          17     the structure or break the tamper-evident seal.

          18                       We also ask for comments on the

          19     proposed requirement for locating refuge alternatives

          20     in inby areas as well as the ultimate provision

          21     discussed in the preamble that would allow refuge

          22     alternatives in these areas to be located up to 4,000

          23     feet from the working face, depending on mine-specific

          24     conditions if they are connected to the surface with

          25     bore holes;

                                                                      11


           1                       The proposed approach to the capacity

           2     of refuge alternatives in inby and outby areas, and the

           3     proposed approach to locating refuge alternatives in

           4     outby areas including minimum and maximum distances.

           5                       We ask for comment on whether the

           6     final rule should contain a requirement that advance

           7     arrangements specified in the ERP include a method for

           8     assuring that there would be a suitable means to

           9     connect the drilled hole to the refuge alternative and

          10     that the connection be made within ten minutes;

          11                       The proposed training requirements

          12     for persons assigned to examine, transport, and

          13     maintain and repair refuge alternatives and components

          14     and whether it would be more appropriate to include

          15     this training under the training provisions of 30 CFR

          16     Part 48.

          17                       And just equally as important, we ask

          18     for comments on the proposed approach to annual

          19     expectations training for miners in construction, where

          20     applicable, activation, and use of refuge alternatives

          21     and components.  Comments should address the proposed

          22     strategy and the proposed elements of training.

          23                       The agency is also soliciting

          24     comments on proposed information collection

          25     requirements.  Please provide comments on all data and

                                                                      12


           1     assumptions the agency has used to develop estimates of

           2     information collection as well as estimates of cost and

           3     benefits in the proposal.

           4                       As you address these provisions,

           5     either in your testimony to us today or in your written

           6     comments, please be as specific as possible including

           7     alternatives, your suggested rationale, safety and

           8     health benefits to miners, technological and economic

           9     feasibility, and data to support your comments.

          10                       The agency will use this information

          11     to help evaluate the requirements in the proposal and

          12     produce a final rule that will improve safety and

          13     health for underground coal miners in the event of a

          14     mine emergency in a manner that is responsive to the

          15     needs and concerns of the mining public.

          16                       As many of you know, this hearing

          17     will be conducted in an informal manner and formal

          18     rules of evidence will not apply.  The panel may ask

          19     questions of the witnesses.  The witnesses may ask

          20     questions of the panel.

          21                       MSHA will make a transcript of the

          22     hearing available on the agency's website within one

          23     week of the hearing.  And as most of you know, time is

          24     of the essence in developing the final rule which must

          25     be finalized by December 31, 2008.

                                                                      13


           1                       If you wish to present written

           2     statements or information, please clearly identify your

           3     material and give it to the court reporter.  You may

           4     also submit comments, as mentioned earlier, following

           5     this hearing by any of the methods identified in the

           6     proposal.

           7                       We also ask that everyone in

           8     attendance, if you would sign the attendance sheet in

           9     the back of the room.  If you have a hard copy or

          10     electronic version of your presentation we would

          11     appreciate it if you would provide the court reporter

          12     with a copy.

          13                       We will now begin today's hearing.

          14     And if you would clearly state your name and

          15     organization and spell your name for the court reporter

          16     this will help assure an accurate record.  And at this

          17     point we will start today's hearing.

          18                       Our first speaker is Connie Hendren

          19     with CD Safe Shields, Inc.  Mr. Hendren.

          20                       MR. HENDREN:  Good morning.  Is it

          21     on?

          22                       MS. SILVEY:  Yes.

          23                       MR. HENDREN:  Good morning.  My name

          24     is Connie Hendren with CD Safe Shields.  That's

          25     C-O-N-N-I-E, H-E-N-D-R-E-N.  With me is -- I can't

                                                                      14


           1     spell your last name.

           2                       MR. GEVEDON:  Hank Gevedon with PSR.

           3     I'm here for technical support.

           4                       MR. HENDREN:  Spell your name.

           5                       MR. GEVEDON:  H-A-N-K, G-E-V-E-D-O-N

           6     with PSR Group.

           7                       MR. HENDREN:  And Clark Johnson with

           8     Carroll Engineering.  We appreciate this opportunity to

           9     be able to talk with you-all for just a few minutes.

          10     Since this is informal and since I have never done

          11     anything like this before, you-all stop me when you

          12     want to, once I get started talking I may be here for

          13     awhile.

          14                       So just tell me, is fifteen minutes

          15     too much or what is the normal -- I would have loved to

          16     have been second or third.

          17                       MS. SILVEY:  That's okay.  Just go

          18     ahead.

          19                       MR. HENDREN:  Go ahead?

          20                       MS. SILVEY:  Yes.

          21                       MR. HENDREN:  Okay.  We're here today

          22     to talk about a mine refuge chamber.  PD3 has been

          23     working with CD Safe Shields.  Our company is located

          24     in Mount Vernon, Kentucky.  And we've been doing some

          25     research on this for over twenty months to date.

                                                                      15


           1                       We've been working with mine

           2     operators, mine safety operators, mine owners, and with

           3     insurance companies.  We have taken a little bit

           4     different approach.

           5                       We went to Triadelphia, West Virginia

           6     two weeks ago on the 24th and met with Joe Judeikis,

           7     and a group which included Mr. Epperly, and had a

           8     wonderful three to four-hour question and answer

           9     session concerning the project that we have.

          10                       One of the features that we have that

          11     is rather unique is that we have a modular device unit

          12     that will withstand the MSHA standard of PSI -- 15 PSI,

          13     yet it can be made into a two-foot, three-foot,

          14     four-foot, five-foot unit.  We'll be able -- we have a

          15     unit sitting out front of the Hilton Suites and at your

          16     convenience sometime we would like to be able to show

          17     you and walk you through this unit and be able to

          18     describe to you what we've been able to do.

          19                       We've tried to utilize the panels

          20     within the unit itself for storage capacity.  We

          21     realize that the breathable air, that the gasses, the

          22     coolant, is the most important part of the things that

          23     will need to be done.  We also understand that we have

          24     the food, water, medical supplies, waste disposal, and

          25     that's all included in our units.

                                                                      16


           1                       This unit is prepared to withstand up

           2     to 2,000 pounds roof load.  We have reinforced the

           3     sides.  We have a quarter-inch steel sled that you will

           4     see that it can be pulled from one area to another.

           5                       And what we're suggesting, we can

           6     make it any height and any width that you want.  The

           7     unit we have out here is a six-person unit that is

           8     eight-feet wide.  Because most of the cuts are

           9     twenty-foot wide you can pull our units through there,

          10     the mine, and you do not have to wait for a crosscut.

          11     When you get to a point to where it's up to 2,500 feet

          12     or whatever MSHA finally approves that you need to stop

          13     there and bring another unit in, you have two choices:

          14     You can pull that unit forward and bring a new unit

          15     behind it or you can actually bring another unit in by

          16     pallets.  Our units can be palletized.

          17                       And I would like to -- in talking

          18     with Mr. Judeikis, he gave us and his staff, I guess

          19     we've passed back and forth 15 to 20 e-mails since

          20     we've been up there, and he has given us a lot of good

          21     suggestions on what we need to do.

          22                       One of the things that we're going to

          23     do starting the last week of August is we're going to

          24     drag our unit through a rock quarry.  Mr. Judaicus has

          25     suggested that these units are going to have a lot of

                                                                      17


           1     wear and tear on them if, in fact, they stay for ten

           2     years.  So what is going to happen to the pan on a unit

           3     since as this.  So we're going to start -- there's a

           4     rock quarry across the road from our facility in Mount

           5     Vernon that is -- has one of the shafts that's two and

           6     a half miles long.  We're going to monitor this and

           7     send information back to MSHA as to what happens

           8     through the wear and tear of this.

           9                       At this time in addressing the

          10     breathable air and the cooling system and the gas

          11     monitoring system, I'd like if Hank would talk a little

          12     bit about that.

          13                        MR. GEVEDON:  Following the

          14     regulations that were set up in relationship, we've

          15     gone through the process of finding systems that are

          16     compatible.  We still have several systems that are up

          17     for MSHA approval and we'll be moving for that.

          18                       But in to relationship to the removal

          19     of CO2, we have a system in place according to that.

          20     You asked a question earlier about the lighting, that

          21     is set up.  We're using a 12-volt cooling system.  Many

          22     of the systems that -- we're using the regulations

          23     actually as our guidelines so I would hope that our

          24     report to you would be more formalized in terms of

          25     answers to direct questions.

                                                                      18


           1                       The overall goal, of course, is to

           2     provide a flexible system that will allow for mine

           3     safety and optimize the amount of breathable air down

           4     there.  Temperature control, we have several systems in

           5     relationship, of course, for sanitation, breathable

           6     air, removal of CO2, food, overall ease of use.

           7                       We have some monitoring systems that

           8     monitor both the interior and exterior of the airlock

           9     as well as the outside systems.  And we have several

          10     things that are going into this particular model that

          11     with MSHA approval should make it a reasonably diverse

          12     unit and also give us some different shapes.

          13                       The ability to make a unit for four

          14     people, six people, eight people, ten people, or to

          15     allow a unit to grow, we believe looks at addressing

          16     the needs for having the exact size unit you need there

          17     in relationship to the number of people working.

          18                       I could go on and talk about it.  A

          19     little later if you have an opportunity to step out and

          20     look at it, it's much more self-explanatory than me

          21     trying to explain the elephant to you from here when

          22     you can actually go look at it.

          23                       But any specific questions you would

          24     have in relationship to the concerns you just brought

          25     up, we'll be glad to ask.  There's also representatives

                                                                      19


           1     from our group outside with the unit.  So at any point

           2     in time you can ask them, please feel free to ask them

           3     any questions about the construction, its design,

           4     lifespan, and those types of questions.

           5                       MR. HENDREN:  In addressing the needs

           6     for this unit we've looked at three or four different

           7     things.  First of all, Clark Johnson is here as

           8     president of Carroll Engineering.  Carroll Engineering

           9     is well known in the mining safety field.  They're

          10     going to be doing our maintenance on our units.  We

          11     wanted to get someone with a sterling reputation and we

          12     feel like in working with Carroll Engineering we have

          13     done just that.

          14                       In coming up with a product we've

          15     taken a little bit different approach, and if you would

          16     just bear me out on this because it may seem a little

          17     bit different.  But we've looked at this as a

          18     three-prong approach.  We, first of all, have to answer

          19     MSHA's requirements, that's a must.  In order to be

          20     approved we have to make sure that we answer your

          21     requirements.

          22                       Secondly, we have to have a product

          23     that is going to be relatively simple for the mine

          24     companies to understand and be able to put out for

          25     their miners.  We can sit here today in a nice cool

                                                                      20


           1     atmosphere and make decisions easily.  There's no

           2     pressure at all.  What happens in a panic situation?

           3     And we put this together with a worst-case scenario.

           4                       In dealing with the mine companies

           5     the first thing everyone wants to do, of course, is you

           6     have got to find a way out, that's the first thing

           7     anybody is going to do.  If there's not a way out this

           8     is the last resort, so to say.  So we want to make this

           9     as easy as possible to operate.

          10                       In meeting with Mr. Judeikis and his

          11     group up there, one of the things that he suggested

          12     besides wear and tear on this, he said go to a 5th or

          13     6th grade class, teach them what you want to do, about

          14     opening the doors, about reading the gas sensors.

          15     Because when you have a pressure situation you can't

          16     make good judgment decisions.

          17                       I'm nervous right now talking with

          18     you.  If we were in an atmosphere one-on-one out at a

          19     table there I would be able to tell you a lot more of

          20     what I feel, but I'm in a semi-panic mode.

          21                       I can't imagine what it would be to

          22     be in a hole four-feet high that has collapsed back

          23     there that gasses unknown to you are out there and you

          24     don't know whether you are going to live or die.  You

          25     can't make good judgments, quick judgments at that

                                                                      21


           1     time.

           2                       So what we've tried to do is tried to

           3     eliminate a lot of thinking in order to get this done.

           4     With seven turns of a dog ear -- you will see what a

           5     dog ear out there is, you turn seven screws and you are

           6     inside the unit.  Can you see it?  Well, if it's a lot

           7     of dust and you can't see the beacon going, you can

           8     hear it.  You are within fifty feet of the thousand

           9     feet of where you are working, and pardon the

          10     expression, all hell breaks loose and you have got to

          11     get somewhere, you can hear it or you can see it.

          12                       Once you get to it, you turn seven

          13     knobs, two minutes, and you will be inside the

          14     antechamber.  The first thing you do inside the

          15     antechamber, you check your monitor on the gas.  More

          16     than likely I would be using the chemical toilet first.

          17     But anyway, you would check the gas to see what you

          18     have got inside there.  These are all things that you

          19     don't have to be a very educated person, and I'm not,

          20     to be able to see this.

          21                       We were told by MSHA that one out of

          22     five miners are color blind.  So inside of having

          23     Christmas tree lights to monitor the gas, there will be

          24     a light on that will show gas is good, caution, or bad.

          25     And you will be able to read those lights rather than

                                                                      22


           1     just have the light itself.  We're trying to make this

           2     as user-friendly as possible.  Because that way not

           3     only the mine owners will accept it but the miners will

           4     accept it.

           5                       Twenty years ago no one wanted to use

           6     seat belts, and look what's happened.  It's evolved

           7     over that.  I think you-all are in a primary stage of

           8     being able to set forth now something that ten to

           9     fifteen years from now is going to be a way of life and

          10     we all have to live with it.

          11                       Now, the third prong of this is

          12     insurance companies.  If I'm a mine owner and I'm going

          13     to spend $75,000 to $100,000, what am I going to get?

          14     I'm going to get safety for my men, and that's number

          15     one.  But if you are an insurance company and you look

          16     at this product and say hey, they've tested this,

          17     they've had a manned-test unit.  And that's what we

          18     want to do.

          19                       We want to put four to six men in a

          20     unit in a mine and have it tested.  And if there's a

          21     manned-tested unit, we've talked to three different

          22     insurance companies, and this could make a difference

          23     in their policy as a mine owner and it could be able to

          24     pay a large portion of what these units are going to

          25     cost over a period of a long time.

                                                                      23


           1                       So we're trying to design something

           2     that's MSHA-approved, user-friendly, and that insurance

           3     will make take a second look at and perhaps give them a

           4     break.

           5                       Now, lastly, you talked for a minute

           6     about being able to communicate.  On our unit we have a

           7     sonic thumper, the minute the doors are closed there

           8     are three radiowaves that go to the surface.  With a

           9     seismograph you can triangulate and be within five feet

          10     of where this unit is sitting.  This gives the miner

          11     inside there another comfort level.  I know when I've

          12     shut the doors that immediately something has happened,

          13     they know where I am.

          14                       This is also equipped with a system

          15     that if you don't reset this system every twelve hours

          16     it will go off automatically.  So if something should

          17     happen and they're incapacitated at the time at least

          18     you will know where that unit is.  Clark, do you have

          19     anything else?

          20                       MR. JOHNSON:  I don't think so.

          21                       MR. HENDREN:  Hank, if you have

          22     anything.

          23                       MR. GEVEDON:  I don't think so.

          24                       MR. HENDREN:  I'm ready for

          25     questions.  Whatever you can do or want to do.

                                                                      24


           1                       MS. SILVEY:  As you stated, Mr.

           2     Hendren, at some point in today's proceedings we're

           3     going to break and the panel is going to go out and

           4     take a walk through the unit that you have outside.

           5                       MR. HENDREN:  Yes, ma'am.

           6                       MS. SILVEY:  But I do have just one

           7     question.  You mentioned that at some point you were

           8     going to take four to six persons in a mine and have

           9     the unit tested.  I take it that you haven't done this

          10     yet.  When do you plan to do this?

          11                       MR. HENDREN:  We plan to do that when

          12     we get permission.

          13                       MS. SILVEY:  After it's approved?

          14                       MR. HENDREN:  Yes, ma'am.  Yes,

          15     ma'am.  Our insurance company has taken a rather dim

          16     view of that until we get approval.

          17                       MS. SILVEY:  Right.

          18                       MR. HENDREN:  But we do think it

          19     needs to be done.  To me, buying a unit right now

          20     without a manned test is like buying a car with no

          21     steering wheel:  It may run good but you won't know

          22     whether it will turn or not until you try it.

          23                       MS. SILVEY:  All right.  Okay.  So

          24     that everybody in the room understands, if after we go

          25     out and have the walk-through then if we could reserve

                                                                      25


           1     if we have any questions of you after we see it and

           2     everything, then we'll bring you back and whatever

           3     questions we have so everybody will be able to hear it.

           4                       MR. HENDREN:  That would be fine.

           5     And we will walk through and give you another

           6     presentation out there and go over everything and then

           7     whatever questions we'll be glad to come back and

           8     answer.

           9                       MR. GEVEDON:  From a development

          10     standpoint, the unit outside is basically a large

          11     model.  It's a lot easier to understand.  We've had

          12     some people ask some questions, about half a dozen

          13     components are still actually in manufacture and

          14     outsourcing.  So if you see something that looks like

          15     it's made out of a piece of plywood and should be

          16     replaced with a piece of aluminum, it's merely being

          17     sourced.  So please ask questions about those.  Will

          18     this be look like this or will this be like this?

          19                       But we found it much easier to

          20     explain to bring a large model and bring it.  So it was

          21     very explanatory in relationship to how the system

          22     works.  So please ask those pointed questions, if we

          23     say that unit is being developed in aluminum right now,

          24     bear with us.  You'll see it very shortly.

          25                       MS. SILVEY:  Thank you very much.

                                                                      26


           1     Thank you all.  Before we get our next group I

           2     didn't -- I should have introduced another person who

           3     is responsible for helping work on this proposal who is

           4     in the audience, and that's David Hershfield.  David is

           5     here and he is an economist in my office.  So I should

           6     have done that in the beginning.

           7                       Now we will have our next group.  And

           8     the next will be a group.  We have Tilda Thomas who is

           9     the widow of Paris Thomas, and he was one of the miners

          10     who lost his life in the Kentucky Darby disaster.

          11                       We have Tracy North, the daughter of

          12     Paris Thomas.

          13                       And accompanying them is Tony

          14     Oppegard.  And Tony is an attorney in the Lexington,

          15     Kentucky.  So we will now have our next speaker.

          16                       MS. THOMAS:  That's my husband.  My

          17     name is Tilda Thomas and I'm the widow of Paris Thomas.

          18     And this is our daughter, Tracy North.  And my husband

          19     and I had been married for thirty years.  He had just

          20     turned 53 when he got killed.  And he died on our

          21     grandson's first birthday, my oldest grandson, which

          22     turned a year old when his grandfather died.  And my

          23     daughter here was pregnant with her second son when her

          24     father died.  And our grandsons are three and two now.

          25     And we miss him very much.  He was, you know, a big

                                                                      27


           1     part of my life.

           2                       I've knowed him -- I started dating

           3     him when I was sixteen, and we were married for thirty

           4     years.  And he just was the foundation of my -- my best

           5     friend, my everything.  And it's hard without him.  It

           6     really is.  It's hard adjusting to a different life

           7     after -- and he was a good, hard-working man, a decent

           8     man.  And he went underground in 1984 I think, and he

           9     had worked for like 27 years underground.  And he said

          10     I go to work, I work for my family, so my family can

          11     have, you know, things.

          12                       And everyday it's hard.  He's been

          13     gone two years now.  Sometimes it feels like forever

          14     that he's been gone and some days it feels like

          15     yesterday, you know, constant thoughts.  We also -- I

          16     had a son named after his father, Paris Lee Thomas, he

          17     died eight years ago.  We just had my son and my

          18     daughter.

          19                       I just feel like -- and I have two

          20     brothers that are disabled coal miners.  And I have a

          21     younger brother -- well, he's like 40 but he's my

          22     younger brother, and he's working underground now.  And

          23     I just want, you know, want anything that can make it

          24     safe for the miners and be able to be safe for them and

          25     be able to work under the safe conditions, you know I'm

                                                                      28


           1     all for it.  You know, these men risk their lives

           2     everyday for their families and they work hard.  My

           3     husband would go to work lots of times when his knees

           4     and stuff was hurting him so bad.  But he would go on

           5     and say, you know, I'm working for my family.

           6                       And he would have been 54 April 28th

           7     of this year.  I just -- like my younger brother, he

           8     stayed out a week after my husband died -- I mean a

           9     year.  He quit working in the mines and was going to

          10     try to not go back, but he went back because of the

          11     money and to support his -- raise his family.  And I

          12     worry about him, like all of the men underground that

          13     are just hard-working men.

          14                       And I just hope that they can get

          15     these chambers to work.  If something like this does

          16     happen again that they will be able to be safe and will

          17     be rescued.  Because my husband and the other men, they

          18     died a horrible death.  I think about it a lot and him

          19     dying in there alone, you know.  And my grandson, he

          20     was just a year old but he remembers his grandfather

          21     and he talks about him all the time.  But the second

          22     grandson don't know him.

          23                       MS. NORTH:  My name is Tracy North.

          24     And it hurts as bad today as it did the day that it

          25     happened.  And it's really hard for me without my dad.

                                                                      29


           1     I wish that he had a place where he could have went to

           2     be saved.  He may still be here today.  And I just -- I

           3     hope that this goes through for the other miners, so

           4     that their families don't have to experience the loss

           5     that we have.

           6                       MS. SILVEY:  I was just going to say

           7     to both you, Ms. Thomas, and Ms. North, that again, we

           8     at MSHA, and I'm sure I speak for everybody in this

           9     room when I say this, we -- you know, you say a lot of

          10     times that you can feel somebody's pain, but you really

          11     can't really feel it.  But in any event, we empathize

          12     with you and, again, express our sympathy.

          13                       And just like you said, you probably

          14     put it better than I can put it, and that is that one

          15     of the purposes of this rule is to try to develop some

          16     place they could go to at least be saved, or as you put

          17     it, until they're rescued.  So again, on behalf of us,

          18     we express our sympathies to you and to your entire

          19     family.  And just wish you the best.

          20                       MS. THOMAS:  Thank you.

          21                       MS. SILVEY:  And thank you for

          22     coming.  We appreciate your testimony.

          23                       Our next speaker is Mr. Paul Ledford

          24     and Mr. Ledford is the sole survivor of the Kentucky

          25     Darby accident.  Mr. Ledford.

                                                                      30


           1                       MR. LEDFORD:  My name is Paul

           2     Ledford.  And I'm the survivor of the Kentucky Darby

           3     explosion.  I worked in the mines about fifteen years.

           4     And I believe these chambers will help save lives in

           5     the future if they're used by the coal operators.  They

           6     will be a safe haven for the miners in case of an

           7     emergency.  They will not have to decide whether to

           8     barricade themselves and hope someone will rescue them

           9     or try to make it out alive.

          10                       When me and my buddies at Darby would

          11     get together and eat lunch, we'd talk about Sago and

          12     how long it took the rescuers to get the men out.  We

          13     decided if anything happened we'd try to make it out

          14     instead of barricading.  If we had a refuge chamber we

          15     would have waited in the chamber until the rescuers

          16     come and helped us out.  There would have only been two

          17     fatalities that day if we had a refuge chamber.  And

          18     there would have only been one fatality at Sago instead

          19     of twelve if they had refuge chambers.

          20                       In the proposal they were to be

          21     within a thousand foot of the working face.  I believe

          22     they need to be closer than that.  I believe they

          23     should be 200 to 300 feet behind the section center but

          24     no further than 500 foot.  According to the MSHA

          25     report, one of the Kentucky Darby deceased barely made

                                                                      31


           1     it a thousand foot.  A thousand foot is too far to

           2     travel at a time of emergency.  There would be no sense

           3     in having the rescue chamber if the men can't make it

           4     to them.

           5                       The rescue chamber will save lives if

           6     you make it a law that they'll have to be in the mines.

           7     We know the coal operator is going to be against the

           8     refuge chambers because of the cost.  The cost of the

           9     chamber is estimated between $65,000 and $100,000, but

          10     most coal operators make that in a week.  Besides, if a

          11     chamber saves a man's life, there's no cost greater

          12     than that.

          13                       Another one of the proposals is that

          14     they could have the materials to build them a

          15     barricade.  In the time of that it's so smoky and dusty

          16     you can't see to build one; and if you did, the smoke

          17     would be in there anyway.  You are so panicked and

          18     don't make good decision.

          19                       And most coal operators would take

          20     that proposal because it would be a lot cheaper on

          21     them, but it wouldn't be as safe as the refuge

          22     chambers.  And a thousand foot, too, I think would be

          23     too far, like I said, one died in the thousand foot

          24     that he made it.  That's just too far to go in an

          25     emergency.

                                                                      32


           1                       MS. SILVEY:  Okay.  Thank you, Mr.

           2     Ledford.  And we appreciate your coming forward and

           3     your testimony and your comments.  And we'll take them

           4     into consideration.  I don't have any questions.  We

           5     very much appreciate you coming.  Thank you.  Our next

           6     speaker then is Kenny Johnson.

           7                       MR. JOHNSON:  Pardon me.  Good

           8     morning.  My name is Kenny Johnson, K-E-N-N-Y,

           9     J-O-H-N-S-O-N.  I'm nobody of note.  I just come today

          10     to offer my support and encouragement to those who are

          11     engaged in this endeavor of making these coal mines

          12     safer.

          13                       I started in the coal mine in 1970

          14     folding top underground in a coal mine.  I spent many

          15     of those years since 1970 doing various jobs and met a

          16     lot of the people, knew a lot of the coal miners.  Went

          17     to work for the United Mine Workers of America, met a

          18     lot of coal miners in a lot of different states.

          19                       And one thing I learned is that coal

          20     miners are pretty much the same everywhere.  They go to

          21     work and they work hard and they expect to come out of

          22     that coal mine alive.  They know that there is some

          23     risk and they hope that that risk and that danger will

          24     be addressed by people and by entities sometimes that

          25     they have no control over.  They put their faith, and

                                                                      33


           1     they put a lot of confidence in other people and the

           2     coal company, in their union, in the state and federal

           3     agencies.  And on occasion we've seen good things come

           4     from these entities.

           5                       I came to the Darby explosion, the

           6     site and the scene of that disaster.  I had been asked

           7     to represent a family, just as a family representative,

           8     not an attorney, of a family who had been left behind

           9     by a miner at the Stillhouse mine in Harlan County,

          10     Kentucky.  So at the Darby disaster these families came

          11     to me and asked me to help guide them because all of a

          12     sudden their lives were transformed.  They knew not

          13     what to do, they were left behind.  And I worked with

          14     these families.

          15                       I saw some things develop after this

          16     tragedy at Darby that no one would want to see.  I saw

          17     children being affected in ways that no child should

          18     ever have to be, things that they should never have to

          19     endure.  Nervous problems, children pulling their hair

          20     out in spots because of their nerves, because of what

          21     they had gone through.

          22                       Now we're here and we could talk

          23     about that all day.  But I'm glad to see, as a retired

          24     coal miner, as a former Deputy Commissioner of the

          25     Kentucky Department of Mines and Minerals, as an

                                                                      34


           1     interested party, I'm glad to see that people are

           2     stepping forth.  A lot of people deserve credit for

           3     that.  There's elected officials that deserve credit

           4     and the lobbyists that pushed these elected officials.

           5                       At Darby and other places of disaster

           6     we have seen the best of MSHA, and in this case the

           7     best of the Kentucky Department of Mines and Minerals

           8     when they went in to rescue Mr. Ledford.  I saw Mr.

           9     Ledford's burn marks on his chest blistered and

          10     infected for months from the rescue device that was

          11     laying on his chest after he had lost consciousness.

          12     And the brave rescuers put their life on the line to go

          13     get him and my hat's off to them.

          14                       There's a lot of good folks involved

          15     in this, and I would just come today to offer

          16     encouragement.  With any business there's always a

          17     concern of cost, we understand that.  But in this

          18     industry -- we know that this industry is at a time of

          19     record profits.  We don't want it to be a time of

          20     record deaths.

          21                       And this, because of the efforts of

          22     many, may be a step in the direction that makes sure

          23     that no other miner dies because they have no place to

          24     go after an explosion or some other catastrophe in the

          25     coal mine.

                                                                      35


           1                       I have set many days and many hours

           2     myself in a coal mine at a lunch hole, diner hole,

           3     where we got to take a lunch when I worked in the coal

           4     mine and thought about how I would get out of that coal

           5     mine should there be an explosion while I was having

           6     lunch; or if I go back and take up my job and there's

           7     an explosion or something of that nature, how would I

           8     get out of this coal mine.

           9                       But a refuge chamber was never an

          10     option for me, and it hasn't been an option for these

          11     other miners.  It wasn't an option for these other men

          12     that died, the colleagues and coal workers of Mr.

          13     Ledford.

          14                       Now, in this rule I see a couple of

          15     things, and I haven't studied this in depth, but the

          16     idea of constructing a safe chamber after the fact, to

          17     me, is not really reasonable.  And I don't think that's

          18     doable, I don't think that's workable.  Because as the

          19     gentleman testified earlier, once something has

          20     happened like this there is going to be probably chaos.

          21     Not in every case but in many cases, people may be

          22     injured, sometimes they're very, very fatigued already.

          23     And to construct a safe chamber after an explosion, I

          24     think there's a better way, better ways to do that and

          25     one of the things is prefabbed.

                                                                      36


           1                       Now, the other thing that I noticed

           2     was some reluctance to apply -- make this applicable to

           3     small coal mines.  I'm not an engineer, don't pretend

           4     to be, I don't know exactly how that would be worked

           5     out.  But I would say for the record that a man, a

           6     woman in a small coal mine deserves to come home to

           7     their family, just the same as a miner in a large mine.

           8     I think that needs to be addressed as well.

           9                       I would say for these brave families

          10     and this miner who has come here today, I offer my

          11     congratulations to them because it's folks like that

          12     that's always going to get changes made.  And they --

          13     these folks and these miners are what it's really all

          14     about.  It's not about the coal companies, and it's not

          15     about MSHA, and it's not about the state, it's not

          16     about all of these -- every one is a part, lobbyists

          17     and attorneys and all of us that do various things.

          18     It's that miner that has to be protected.  And they're

          19     the ones that depend on others to look out for them.

          20                       They will go do their job, and

          21     they'll do that job in some harsh conditions, but they

          22     expect that someone is going to take care of them.  And

          23     they expect that should their lives be put in danger,

          24     should they be cut off from the world, that somebody

          25     will come and get them.  And in this case maybe they

                                                                      37


           1     have an opportunity to stay alive until someone does.

           2     Thank you very much.

           3                       MS. SILVEY:  Thank you very much.

           4     And you know, for all that you have done to assist the

           5     families, we appreciate that too.  One of the things I

           6     do want to say is that this rule, so that everybody

           7     knows, is applicable to all underground coal mines.  I

           8     think I said in my opening statement.  So that

           9     everybody knows that it will apply to all underground

          10     coal mines.  I don't have any other comments.

          11                       Our next speaker will be Wes

          12     Addington, Appalachian Citizens Law Center.

          13                       MR. ADDINGTON:  Good morning.

          14                       MS. SILVEY:  Good morning.

          15                       MR. ADDINGTON:  My name is Wes

          16     Addington.  I'm an attorney at the Appalachian Citizens

          17     Law Center in Whitesburg, Kentucky.  The law center

          18     handles issues related to coal mining, including issues

          19     of miner's health and safety.  I hope to submit written

          20     comments on this rule before the deadline.

          21                       In light of that, I would like to

          22     make just a few comments on the rule here today.  I

          23     generally applaud the efforts that MSHA has undertaken

          24     so far in working on this rule for refuge alternatives,

          25     however, I do have some concerns.

                                                                      38


           1                       Primarily, what Kenny had mentioned

           2     earlier, is this third option of refuge alternatives

           3     which is having materials prepositioned to be

           4     constructed within ten minutes.  I'm a little concerned

           5     that materials prepositioned to be constructed is just

           6     a euphemism for barricade.  It sounds that way.

           7                       And clearly in the NIOSH report

           8     that's referenced frequently in this proposed rule --

           9     they clearly indicate that there's no evidence to

          10     support the practice of barricading in monitored mining

          11     operations, and barricading is not considered to be a

          12     viable refuge alternative.  So I'm concerned about the

          13     reasonableness of that third option, whether it's

          14     feasible, whether it's viable.

          15                       I'm also unclear, looking through the

          16     rule, as to the terminology used in various sections of

          17     the rule and consistencies there.  For example, you

          18     know, in looking at 7.505(b)(1) which talks about

          19     activating without tools within ten minutes versus the

          20     75.1507(c) which talks about materials prepositioned to

          21     be constructed in a secure space within ten minutes.  I

          22     notice in that section that there's no mention of

          23     tools.

          24                       In this rule is it -- are the -- is

          25     the third alternative, is there any consideration that

                                                                      39


           1     there would be tools required to construct those

           2     materials that are prepositioned?

           3                       MR. SHERER:  Yes, there could be

           4     tools involved.

           5                       MR. ADDINGTON:  And that brings up

           6     the inconsistency in having a prefabricated unit that

           7     requires no tools versus having materials to be

           8     constructed that may require tools.  You know,

           9     obviously miners in mines using different alternatives

          10     would be faced with, you know, totally different

          11     challenges in the event of a disaster and an explosion

          12     which they would need a refuge alternative.

          13                       I'm also concerned throughout the

          14     rule and the comments with the discussion of timing, in

          15     terms of timing to get to a refuge alternative, in

          16     terms of timing to construct, in terms of timing to

          17     escape.  In the comments there's talk of -- it seems to

          18     be based on sixty minutes based on the lifespan of the

          19     SCSR.

          20                       And then in the comments there's talk

          21     of thirty minutes of timing which the miners would seek

          22     to escape, and if that wasn't possible then they would

          23     have thirty minutes remaining to go to the refuge

          24     chamber, ten minutes to construct or to activate and

          25     then twenty minutes for it to be fully functional.

                                                                      40


           1                       You know, and then there's other

           2     areas of the rule in which there's reference to being

           3     within thirty minutes of a refuge chamber in an

           4     outlying area.  And I'm just wondering if the same time

           5     periods aren't being applied consistently.  For

           6     example, if you are thirty minutes away from the refuge

           7     chamber, depending on where it is in relation to your

           8     position, and then you factor in thirty minutes for

           9     escape, well, there's your hour.

          10                       So I would like to see a little more

          11     explanation in terms of, you know, specifically how

          12     it's designed, how these emergency escape plans are

          13     designed in terms of timing in which you expect miners

          14     to be -- what to be happening in all of these examples.

          15                       And obviously distance is a major

          16     factor.  As Paul testified, he feels like anything more

          17     than a thousand feet would be very difficult to reach.

          18     And I notice the West Virginia rule is less than a

          19     thousand feet.  I notice this rule is between 1,000 and

          20     2,000 feet and you are asking for comments of

          21     possibilities of up to 4,000 feet in distance from the

          22     working face.

          23                       You know, and I guess that's

          24     contingent upon there being extra locations of SCSRs

          25     between the working face and the refuge chamber that

                                                                      41


           1     may be 4,000 feet away.  I'm concerned that by

           2     factoring in locations of SRSCs and locating refuge

           3     chambers that you potentially would be creating

           4     exceptions that swallows the rule, or the purpose of

           5     having refuge chambers in the first place.  If you

           6     continually expect miners to be able to reach

           7     additional locations of SCSR as their -- on their way

           8     to a refuge chamber.

           9                       Finally, I'm a little curious in

          10     terms of the research performed on evaluation of

          11     accident and injury data in the comments to the rule in

          12     which the MSHA estimates that a total of 221 lives

          13     could have been saved over the 107-year period for

          14     purposes of estimating the benefits of this proposal.

          15                       I note in the comments, in four of

          16     the disasters that you referenced, just adding up the

          17     number of miners who survived the initial explosion or

          18     the initial fire, they're getting to the lower number

          19     of lives that could have been saved under this

          20     estimate.  So I guess I'm curious how that data was

          21     evaluated all of the way back to 1900 based on hordes

          22     of explosions in the early part of the century and

          23     fires in which, you know, scores and scores of miners

          24     died.  Does anyone know exactly how that data was

          25     reviewed or evaluated?

                                                                      42


           1                       MS. SILVEY:  I think we took -- I

           2     thought that we specifically said that from a certain

           3     year's period -- I'm not sure exactly what the year

           4     was, we took -- we took a certain number of the

           5     accidents that we referenced in there for that period

           6     of time and we looked at the reports and the report

           7     showed the number of miners that had barricaded

           8     themselves.  So we knew if they survived the initial

           9     explosion and that's how we came up with the -- that's

          10     how we came up with the miners -- the estimate of the

          11     miners that survived.  That's basically all we did is

          12     just looked at the accident reports.

          13                       MR. ADDINGTON:  Okay.  So if I

          14     understand you correctly, you looked at a select number

          15     of specific disasters; is that correct?

          16                       MS. SILVEY:  Yes.  We looked at all

          17     of them, I think.  I think we looked at all of them --

          18     minus a certain number of them.

          19                       MR. FORD:  Of the ones we could

          20     identify, if we could tell that they barricaded, we

          21     took those people that barricaded from that accident.

          22                       MR. ADDINGTON:  Okay.  I guess I

          23     would like to see in the final rule, hopefully, that

          24     more fully explained and reflected.  Because it seems

          25     to me, as you read this in a straight-forward manner,

                                                                      43


           1     it seems as though you have reviewed basically every

           2     disaster that's occurred since 1900, and based on that

           3     the assumption is a total of 221 lives could have been

           4     saved and I think that's --

           5                       MS. SILVEY:  I think we reviewed the

           6     ones where we had accident reports that we could

           7     review.  And some of them didn't have -- I think if you

           8     look in the Preliminary Regulatory Economic Analysis I

           9     think that it goes into pretty much detail, doesn't it,

          10     Ron?

          11                       MR. FORD:  Yes, and the report that

          12     we drew it from is listed in the very end under

          13     references.

          14                       MS. SILVEY:  There's a specific

          15     report that discusses all of the accidents.

          16                       MR. ADDINGTON:  Okay.  I guess I

          17     still would like to see, or would hope to see in the

          18     final rule, in the summary at least, that more fully

          19     explained.  Because it just makes it appear as though

          20     MSHA has reviewed, where they have good data, all of

          21     the historical disasters.

          22                       MS. SILVEY:  As Ron refreshed my

          23     memory the report is in there, there's a reference in

          24     the PREA or the Preliminary Regulatory Economic

          25     Analysis.  And that cites the report and when you read

                                                                      44


           1     the report the report goes into pretty much detail.

           2                       MR. ADDINGTON:  Right, I understand

           3     that.

           4                       MS. SILVEY:  So you can look --

           5                       MR. ADDINGTON:  I guess I'm just

           6     thinking in terms of what's actually in this proposed

           7     rule that jumps out at me and is actually more easily

           8     accessible.  That just sort of reflects, you know, what

           9     was reviewed.

          10                       The more important thing that I

          11     wanted to raise that I saw in the evaluation of

          12     accident and injury data is the estimate of a low of 25

          13     percent and a high of 75 percent that is estimated of

          14     lives that could be saved under this new rule.

          15                       Those are very hopeful numbers to me

          16     even at the low end of 25 percent, a one in four

          17     survivor rate is really wonderful.  So I think it's

          18     worth proceeding.  And I don't think cost is a factor

          19     when you are talking about these types of percentages

          20     of survival going forward.  If you take a recent

          21     disaster, Sago, Darby if you apply those percentages to

          22     those disasters, there's no amount of money that would

          23     be worth having those miners back.

          24                       And like I said, I would hope to

          25     provide additional written comments before the

                                                                      45


           1     deadline.  Thank you.

           2                       MS. SILVEY:  Okay.  Well, we look

           3     forward to getting your written comments.  Just a

           4     couple of things I wanted to comment on, particularly

           5     where you have the areas of concern.  If you have --

           6     and I know you have heard me say this before, and you

           7     have submitted your written comments.

           8                       So if you have alternative

           9     suggestions, specific -- in the areas where you have

          10     specific concerns if you would, please, get them to us

          11     with your specific suggestions, we'd appreciate that.

          12                       When you talked about the location

          13     between -- an inby location between a thousand and

          14     2,000 feet, and just so everybody knows this, we know

          15     that West Virginia is within a thousand feet.  We heard

          16     from West Virginia in Charleston so if anybody wants to

          17     go on the website and look at the transcript, please

          18     feel free to do that.

          19                       But, so in addition we have West

          20     Virginia and, of course, as some of you may know

          21     Illinois has a law and now Pennsylvania.  Well, and we

          22     also had, as you mentioned, Mr. Addington, we had the

          23     NIOSH report as some other people mentioned.  And the

          24     NIOSH report so, you know -- so as you know, when we

          25     come forward with this final rule we have all of these

                                                                      46


           1     various locations that we're going to have to reconcile

           2     and put in the final rule.  Because in the proposed

           3     rule we obviously had to take into consideration the

           4     NIOSH report.

           5                       So for everybody I'm saying, if you

           6     have suggestions on location and you have specifics,

           7     please get those to us.  But recognizing that where we

           8     are on that we have some different -- sort of some

           9     different things that we have to reconcile as we move

          10     to the final rule.

          11                       On the issue of the 4,000 feet, you

          12     were saying you were concerned that the exception

          13     becomes the rule.  I just want to iterate to people

          14     that that was a suggested alternative that we raised in

          15     the preamble, but it was only in the event that a mine

          16     had a connection to a bore hole, that there was a

          17     connection to a bore hole that could obviously

          18     immediately deliver fresh air to the underground area.

          19     So that's -- that alternative was limited in that

          20     situation.

          21                       I don't have any more comments.  Does

          22     anybody have any more comments?

          23                       MR. ADDINGTON:  Then briefly just to

          24     follow-up on the NIOSH report, and I was talking about

          25     timing and I neglected to mention this.  I noticed in

                                                                      47


           1     their testing, and I know this is ongoing and is

           2     developing, that a few of their refuge chambers took

           3     more than thirty minutes to become operational.  So my

           4     concern is that in terms of the sixty-minute window

           5     that this rule seems to operate around that there be

           6     enough time allotted to contingencies, to problems with

           7     activation, you know, rather than assuming a best-case

           8     scenario that it's going to operate as hoped.

           9                       MS. SILVEY:  Okay.  Thank you.

          10                       MR. ADDINGTON:  Thanks.

          11                       MS. SILVEY:  And last of this group

          12     we have Tony Oppegard who is an attorney in Lexington,

          13     Kentucky.  Tony.

          14                       MR. OPPEGARD:  Thanks, Pat.  If it's

          15     okay with you, I'm going to ask Paul Ledford to come

          16     back up.  And if it's okay with you at some point I

          17     would like to ask him a couple of questions about the

          18     Darby accident in terms of this issue, would miners

          19     have the wherewithal to be able to construct some type

          20     of refuge chamber.

          21                       MS. SILVEY:  That's fine.

          22                       MR. OPPEGARD:  My name is Tony

          23     Oppegard.  I'm an attorney in Lexington representing

          24     miners and their families.  It's O-P-P-E-G-A-R-D.

          25                       There's a couple of widows of the

                                                                      48


           1     Kentucky Darby disaster who couldn't be here today who

           2     intended on being here, Mary Middleton and Priscilla

           3     Petra.  Mary's husband, Roy, died of carbon monoxide

           4     poisoning and Priscilla's husband, Bill, died of carbon

           5     monoxide poisoning along with Paris Thomas after the

           6     disaster.

           7                       And Kenny Johnson and I were both

           8     representing the families.  And I think one of the

           9     important things today is to try to put a human face on

          10     this problem and the folks that you-all are trying to

          11     help.  And I do appreciate the efforts of MSHA and each

          12     of you individually in promulgating this rule.  And I

          13     know there's a lot of different considerations and

          14     factors and agendas that people have, and you are

          15     trying to do the best you can.

          16                       So what I want to do is just go

          17     through some of the parts of the rule and make some

          18     comments.  I'm not a scientist or an engineer either,

          19     and I must say a lot of this is very technical when you

          20     read it.  And it's things that I don't readily

          21     understand but I appreciate the effort that has gone

          22     into it.

          23                       In terms of putting a human face on

          24     it, right after the disaster Kenny and I were meeting

          25     with the families of the Kentucky Darby miners just

                                                                      49


           1     about every night when MSHA was going through the

           2     interviews.  And that's been now a little over two

           3     years ago.  And the -- you know, it's a very somber

           4     experience.  You know, you are meeting with people who

           5     are just devastated with grief at having lost their

           6     husbands or fathers, you know, brothers, whatever the

           7     case may be, and trying to figure out how they're going

           8     to go on.

           9                       And even now, two years later,

          10     something that Kenny referred to, you see how the

          11     families have been affected, how it's really turned

          12     people's lives upside down, and the grief that they

          13     still feel and the impact of losing not only the

          14     breadwinner in the family but, you know, the father

          15     figure, and particularly the impact it has had on

          16     children.  And it's really very difficult.  And

          17     anything that you could do to prevent other families

          18     from going through this tragedy will be well worth your

          19     effort.

          20                       I also went into the Kentucky Darby

          21     mine as a representative of miners for a couple of days

          22     during the -- after the rescue effort but during the

          23     investigation and saw the devastation underground and

          24     it's -- you know, I mean I know you-all have seen the

          25     photos of it and you have read the report, but it's

                                                                      50


           1     really indescribable when you are underground and see

           2     that devastation.

           3                       And I asked the person from the

           4     company who was assigned to be with me to take me

           5     around and show me where each of the miners -- where

           6     their bodies were found.  And that's a -- again, it's a

           7     very somber experience.  And you are trying to

           8     reconstruct in your mind how this certain miner reached

           9     this point and what he felt as he was trying to make

          10     his way out of that mine in the chaos where, as Paul

          11     would say, you couldn't see a foot in front of your

          12     face.

          13                       A couple of general comments I had

          14     about the rule before I go into some specific sections.

          15     In reading through your preamble, one of the real

          16     concerns I have is the part in 75, I guess it's 1506,

          17     where it says -- in your comments you say the proposed

          18     rule would not require refuge alternatives for miners

          19     who can reach a surface escape facility within thirty

          20     minutes.  In talking with and representing Kentucky

          21     Darby families, and in representing Paul, I know that

          22     all of them believe that had there been a refuge

          23     chamber in the Darby mine that Paris and Roy and Bill

          24     all would have survived.  They would have been able to

          25     get to that refuge chamber.  They would have been

                                                                      51


           1     rescued probably sometime that night.  And Paul, you

           2     know, I think is very brave to come up and testify.

           3     It's not an easy thing for him to do to speak about the

           4     disaster.

           5                       MS. SILVEY:  I agree.

           6                       MR. OPPEGARD:  And I have greet

           7     admiration for him.

           8                       MS. SILVEY:  I agree.

           9                       MR. OPPEGARD:  But I must tell you

          10     also that Paul is suffering from post-traumatic stress

          11     disorder from having gone through the trauma of this

          12     explosion and trying to make his way out of the mine

          13     and losing consciousness, ultimately regaining

          14     consciousness and crawling a little further and then

          15     being rescued.  But he also has a severe breathing

          16     impairment from the inhalation of carbon monoxide.

          17                       And the thing that strikes me about

          18     this, I can ask Paul, and I think I know the answer,

          19     how long would it have taken you under, you know, not

          20     after an explosion, just under regular conditions to

          21     walk out of the mine?

          22                       MR. LEDFORD:  Twenty minutes.

          23                       MR. OPPEGARD:  So the mine wasn't

          24     that far underground.  And I guess one question I had,

          25     when you say it wouldn't require a refuge chamber for

                                                                      52


           1     miners who can reach a surface escape facility, does

           2     that mean within thirty minutes under emergency

           3     conditions, or under your everyday travel conditions?

           4     Because I'm not sure.

           5                       MR. SHERER:  That's explained in the

           6     emergency evacuation rule that we referenced, and

           7     that's thirty minutes under normal conditions.

           8                       MR. OPPEGARD:  See, that's my problem

           9     then.  Because in Kentucky Darby they probably would

          10     not have been required to have a refuge chamber under

          11     the rule as it is now written.  And I really think you

          12     need to change that thirty minutes to make it a lot

          13     shorter than that.  I was in the Darby mine, it was not

          14     that far to get outside.  I mean we could ride out

          15     in -- I'm assuming it was less than ten minutes to get

          16     outside and you probably could have walked out, as Paul

          17     was saying, in twenty or twenty-five minutes.

          18                       But nonetheless, when you look at the

          19     MSHA report, Paul referenced that one of the miners, I

          20     think it was Bill Petra, he only traveled 1,048 feet

          21     before he died.  Roy Middleton traveled 1,243 feet

          22     before he died.  And Paris Thomas traveled 1,468 feet

          23     and he died.  And I guess to me there's an

          24     inconsistency if you say you don't have to have a

          25     refuge chamber if you can walk out in thirty minutes

                                                                      53


           1     but then you realize that all three of these miners who

           2     under normal conditions could have walked out in less

           3     than thirty minutes did not survive.

           4                       So I really think that number needs

           5     to be cut probably down to ten minutes or something

           6     like that where you are going to require refuge

           7     chambers in most cases.  Paul traveled 1,595 feet.  He

           8     traveled farther than anybody else, and he would not

           9     have made it out had it not been for the mine rescue

          10     teams coming in.

          11                       One other concern I have, again, is

          12     what other people have talked about, the refuge

          13     chambers having to be located between a thousand and

          14     2,000 feet from the face.  And again, I understand some

          15     of the concerns about if you are too close to the face

          16     a refuge chamber might be damaged by an explosion, I

          17     understand that.  Not all refuge chambers though are

          18     going to be used just after explosions.  I mean you

          19     might have a mine fire, you could have an inundation or

          20     something else where miners need to get to a refuge

          21     chamber.

          22                       So I don't think that the concern

          23     about explosions is going to apply to all refuge

          24     chambers.  And my gut reaction is it probably -- again,

          25     looking at the distances that the miners traveled, now,

                                                                      54


           1     they -- you know, they didn't -- they all made it

           2     between a thousand and 2,000 feet and they all

           3     perished.

           4                       MS. SILVEY:  Right.

           5                       MR. OPPEGARD:  But what if an

           6     operator decides to make it 1,800 feet away, none of

           7     those miners would have even made it to the refuge

           8     chamber.  And I tend to think that that distance needs

           9     to be reduced.  I've not read the West Virginia rule

          10     but I've see where they require them within one

          11     thousand feet and I tend to think that that's probably

          12     a better idea.

          13                       Mr. Ledford, speaking from

          14     experience, when he said he thinks they need to be

          15     closer.  But again, I don't think it would have helped

          16     the Kentucky Darby miners had there been a refuge

          17     chamber that met the requirement of this rule but was

          18     say 1,500 or 2,000 feet away.

          19                       My third general comment, before

          20     going to some specifics, and I think Kenny has

          21     addressed this and Wes Addington has addressed it, is

          22     Section 75.1507, again, third time.  With all due

          23     respect to your panel, and again, I know you have

          24     worked hard, I really think that that needs to be

          25     scrapped, this thing about building a refuge chamber

                                                                      55


           1     underground or building -- again, I think it's

           2     barricading too, whatever it is, it doesn't make any

           3     sense to me.  That you are going to expect miners in a

           4     panic situation who can't even see, who are maybe

           5     hyperventilating, disoriented -- how do you expect them

           6     to take tools and build something.

           7                       What I think you are doing here, I

           8     can almost guarantee you if that rule goes through,

           9     that part of the rule, you are going to have a lot of

          10     small operators in Eastern Kentucky who aren't even

          11     going to think about refuge chambers, that's what

          12     they're going to do.  They're going to latch on to

          13     that.

          14                       And can you imagine how it's going to

          15     look if we have another Kentucky Darby disaster and

          16     everybody dies because there's not a refuge chamber and

          17     they have this alternative provision where they could

          18     build something and they weren't oriented enough to

          19     build it.

          20                       I also don't understand, you say

          21     build it in ten minutes.  You may not have ten minutes'

          22     time to build something if you are being overcome by

          23     carbon monoxide.  So again, this is not rehearsed, Paul

          24     has been through this experience.  I mean it would be

          25     good for you to talk to him.

                                                                      56


           1                       Paul, do you think that you could

           2     have built some type of barricade or refuge chamber

           3     underground the day of the accident?

           4                       MR. LEDFORD:  No.  You can't hardly

           5     see your hand in front of your face.  If you did build

           6     it there, you have all of that smoke in there behind

           7     that -- with you anyway -- you'd be in there with all

           8     of that smoke breathing anyway after you did barricade

           9     yourself.

          10                       You-all seen in the report that

          11     people died -- going back to the explosion and

          12     barricade and all of them died, that you-all was

          13     talking about that was barricaded.  So it would be the

          14     same thing, they can be barricading theirself and they

          15     are just going to lay there and die too because the

          16     rescuers can't get to them in time.

          17                       MR. OPPEGARD:  In Eastern Kentucky a

          18     lot of families depend on mining for a living, I'll use

          19     Paul's family as an example.  His mom now has seen one

          20     son killed in a mining accident, another permanently

          21     disabled in a roof fall.  This was before the Kentucky

          22     Darby accident.  And now Paul permanently disabled and,

          23     you know, barely surviving an accident.  And Paul has

          24     worked for a bunch of different coal operators, small

          25     operators in Harlan County so, again, this is not

                                                                      57


           1     rehearsed.

           2                       But let me just ask you, Paul, do you

           3     think that in the mines you worked at in Harlan County,

           4     which are small operations, if an operator had a choice

           5     between paying for a refuge chamber or having the

           6     materials available to construct something in case of

           7     an emergency, which do you think they're going to use?

           8                       MR. LEDFORD:  Buy an $80 roll-up

           9     curtain and two timbers instead of a $65,000 refuge

          10     chamber.  It's common sense.  They claim they're broke

          11     all the time, barely making it.  They say they're not

          12     making hardly any profit running the coal mines.

          13     They're going to take the option of getting the curtain

          14     and the two or three timbers set up, and there you go,

          15     barricade yourself and be sitting there waiting to die

          16     is what you would be doing.

          17                       MR. OPPEGARD:  We have some good coal

          18     operators and we have some outlaws and the outlaws are

          19     going to do the cheapest thing they can.  And maybe if

          20     you have some good coal operators they're going to

          21     invest in what's safest for the men, but I don't think

          22     you can count on that.  And that's why I think this

          23     part of the rule just needs to be done away with.  I

          24     don't think it should be an option.

          25                       Let me ask Paul another question I

                                                                      58


           1     guess before I turn to some specific regulations.

           2                       Paul, just generally, there was you

           3     and Bill and Paris and Roy all trying to escape from

           4     the mine after the Darby explosion, can you talk about

           5     whether you were ever disoriented or whether you were

           6     able to keep your wits about you or just how you felt

           7     when you were trying to escape.

           8                       MR. LEDFORD:  First I kept my mind to

           9     me, I knew where I was going and what I was going to

          10     do.  And then after we was separated I just kept going

          11     and going and I kept getting tireder and tireder.  And

          12     then I realized, it just hit me that I was going to die

          13     in there that night.  And I asked the Lord to help me

          14     so I could raise my family -- which is hard to -- it's

          15     hard to go on everyday, to try to keep going.  And I

          16     obviously realized I was going to die that night.  I

          17     tried to stand up -- before I laid down I asked him to

          18     help me so I could raise my family.

          19                       MR. OPPEGARD:  And you know, I know

          20     you-all know this, but all of those miners had SCSRs

          21     too.  So they already had some assistance to try to get

          22     out of the mine, and it still wasn't enough.  Let me go

          23     through a few -- I don't want to just concentrate on

          24     the negative things or the problems we have with the

          25     rule but be supportive of some things that I think are

                                                                      59


           1     very good.

           2                       And I know you-all took a lot of

           3     criticism in West Virginia for the rule.  I was not

           4     sure after reading it, and then I heard some reference

           5     to it today about if you already have a refuge chamber

           6     in your mine you can keep what you have now, is it

           7     grandfathered in for a certain period of time?

           8                       MS. SILVEY:  It's grandfathered if

           9     it's approved by the state, and the only state now that

          10     has approved refuge chambers is West Virginia.  So if

          11     it's approved by the state or approved by MSHA in the

          12     Emergency Response Plan.

          13                       And now, you might ask me why would

          14     it be approved by MSHA, some of MSHA is allowing refuge

          15     style plans, and I don't know how many have refuge

          16     alternatives of refuge chambers to satisfy the

          17     breathable air requirement.  You-all know about the

          18     breathable air requirement that's in place now.

          19                       MR. OPPEGARD:  If a refuge chamber,

          20     for instance, in West Virginia is grandfathered in, how

          21     long is that good for?

          22                       MS. SILVEY:  It will be until it's

          23     replaced, or for the refuge alternative -- now, mind

          24     you, West Virginia only has the prefabricated type.  So

          25     you don't have to -- in West Virginia, not the other

                                                                      60


           1     two alternatives that we included.

           2                       So they would be grandfathered until

           3     replaced, or for a maximum of ten years for the

           4     self-contained refuge alternative, and then for the

           5     components until replaced or a maximum of five years.

           6                       MR. OPPEGARD:  I think you need to

           7     consider cutting down that grandfathering time from ten

           8     years to a lower amount because I sort of feel the same

           9     way Kenny Johnson does when he is saying that a miner

          10     in a small mine deserves the same protection as the

          11     miner in a large mine.  I think a miner in West

          12     Virginia deserves the same protections as any miner in

          13     the United States.  If you finalize a rule that

          14     requires more space, for instance, or a longer supply

          15     of food and water, I mean I support the 96 hour rule as

          16     opposed to the 48 hour rule.

          17                       And I understand the whole theory

          18     behind grandfathering, and they've already invested the

          19     money and all of that, I understand that.  But I think

          20     you ought to cut down that grandfather period.  Again,

          21     I think it would be a big mistake if we have a disaster

          22     in a West Virginia mine and they already have a

          23     prefabbed refuge chamber and guys are in there and

          24     there's 48 hours of breathable air and food and water

          25     and you can't get to them for six days and they have

                                                                      61


           1     died.  I mean that would look pretty bad.  And I don't

           2     see the point of saying just because we've built

           3     something that we think is good enough that it is good

           4     enough if the federal agency has a stronger

           5     requirement.

           6                       And that's no different than any

           7     other standard.  If MSHA would pass a regulation

           8     tomorrow that you have to have a bolting pattern every

           9     three feet instead of every four feet, every state

          10     would have to do that.  And I don't see where it's any

          11     skin off the nose of the West Virginia inspectors to

          12     have a more stringent requirement.  If anything it

          13     should make their job easier.  If you have to bolt

          14     every three feet and in West Virginia you only have to

          15     do it every four feet, well, they don't have to worry

          16     about someone violating the roof control plan because

          17     if you have to bolt every three feet it's going to

          18     easily pass West Virginia.

          19                       So I think you need to err on the

          20     side of the coal miners and not worry about what West

          21     Virginia officials feel which is really just, in my

          22     view they were carrying the water for the coal

          23     operators in West Virginia.  I think the coal operators

          24     should have come and talked for themselves.

          25                       Going through some specific

                                                                      62


           1     requirements, the -- again, the 96 hour period, and I'm

           2     speaking on behalf of the Kentucky Darby families now

           3     that I'm representing.  We support that requirement.

           4                       The requirement that a telephone or

           5     an equivalent two-way facility that can be used from

           6     inside, I think that absolutely should be in there.

           7     That's an excellent requirement as well as the two-way

           8     wireless system.  This is in 7.504.

           9                       And 7.505, the requirement that the

          10     airlock has to be configured to accommodate a stretcher

          11     without compromising its function, I think that's

          12     absolutely necessary.  I think you realize, and most

          13     people realize, that because you make it to a refuge

          14     chamber doesn't mean that you have made it to a refuge

          15     chamber without injury.  You might have severely

          16     injured miners who finally make their way there.

          17                       I think the requirement that there

          18     has to be a measurement of outside gas concentrations

          19     without exiting the structure or allowing entry of the

          20     outside atmosphere, that's absolutely essential.

          21     Again, these are things that I don't understand exactly

          22     how you do it but I appreciate seeing it in the rule.

          23                       I'll mirror the same comments that

          24     Wes made about trained persons can fully activate the

          25     structure without the use of tools within ten minutes.

                                                                      63


           1     When I first read this I thought, well, this isn't as

           2     bad as I thought it was.  I thought they were saying

           3     that you could just build something and that's not

           4     really what it's saying.  It's saying that you have to

           5     be able to activate it in ten minutes.  And then I saw,

           6     oh, indeed, there is a process in there for building

           7     something.  I think they sort of conflict.

           8                       Again, under Section 7.505, the

           9     requirement that the chamber, you be able to conduct a

          10     pre-shift exam without entering the structure, I think

          11     is essential, again, that you have to pre-shift these.

          12                       7.506, only uncontaminated breathable

          13     air is allowed to be supplied to the refuge

          14     alternative.  I think that's absolutely essential.  And

          15     that the breathable air has to sustain each person for

          16     96 hours is important.  And we support those.  I like

          17     the part of your 7.506 where you are requiring fans or

          18     compressors to be equipped with carbon monoxide

          19     detectors located at the surface, I think that's a good

          20     provision.

          21                       The -- in 7.507, Subsection A, each

          22     refuge shall have an air monitoring component that

          23     provides persons inside with the ability to determine

          24     the concentrations of carbon dioxide, carbon monoxide,

          25     et cetera, inside and outside.  I think that is very

                                                                      64


           1     good.  You need to keep that for sure.  As well as the

           2     Section 7.508(a)(1) where you are talking about purging

           3     or other effective methods being provided for the

           4     airlock to dilute the carbon monoxide concentration.  I

           5     think that certainly needs to be retained.

           6                       Going to Part 75, the mandatory

           7     safety standards, 75.360, the pre-shift exam at fixed

           8     intervals, Subsection D, the person conducting the

           9     pre-shift exam shall check the refuge alternative for

          10     damage, the integrity of the tamper-evident seal, and

          11     the mechanisms required to activate the refuge

          12     alternative, and the ready availability of compressed

          13     oxygen and air.  I think that's essential to your rule

          14     and I would want to compare that to what all of you

          15     know has happened with SCSRs where when these checks

          16     are made, frequently we have found SCSRs that are no

          17     longer in working condition.  And we certainly don't

          18     want to require refuge chambers to be built and then

          19     have something wrong with them when you go to use them.

          20     So I think that provision for the pre-shift at fixed

          21     intervals needs to be kept.

          22                       75.1505, Subsection B requiring that

          23     all maps shall be kept up-to-date and any changes, et

          24     cetera, et cetera, including the refuge alternatives

          25     must be shown on the map at the end of the shift in

                                                                      65


           1     which the change is made.  I think that's a good

           2     requirement and I think that's something that MSHA

           3     inspectors need to be aware of.  If I'm not mistaken in

           4     Kentucky Darby the escapeways were not properly marked

           5     on the maps.  And you know, one of the problems we

           6     have, particularly in Eastern Kentucky is the failure

           7     to really do quality training, for instance, on

           8     escapeways.

           9                       I sat in on those Kentucky Darby

          10     interviews and they were all over the board when they

          11     asked the miners, tell us what a green symbol is in an

          12     escapeway, or blue or red, or how were your primary

          13     escapeways and secondary escapeways marked.  And people

          14     just didn't know.  Some of them might have known but if

          15     you took all of the answers, they were certainly not

          16     consistent.  They had not been adequately trained on

          17     those escapeways.  And the maps were not current.  And

          18     I think miners knowing where these refuge chambers are

          19     is very important.

          20                       In 75.1506 I've already talked about

          21     that, where the refuge chambers have to be located.

          22     And I really think you need to revisit this, that they

          23     could be located up to 2,000 feet away from the face.

          24     And I guess one other point I want to make about that

          25     is I'm not sure if there's an assumption built in here

                                                                      66


           1     that most explosions occur at the face, but that's, for

           2     instance, Kentucky Darby that's not where the explosion

           3     occurred.  It was nowhere near the face.  You know,

           4     there's other instances too, for instance, if you have

           5     a fire it's more likely to occur on the belt line,

           6     somewhere that could be -- you could be a long way away

           7     from the face and you have a fresh air fire.

           8                       So I don't think that there should be

           9     an assumption that most disasters originate at the face

          10     because most of them do not.  We support the part of

          11     the rule in 75.1506 where you are requiring a sign or

          12     marker clearly indicating refuge posted conspicuously

          13     at each chamber.  I think that's a good idea.  I would

          14     like to see -- well, you say reflective material, I

          15     guess I would like to have you talk with Mr. Hendren

          16     and see how theirs are marked and just come up with the

          17     best thing so that miners are able to see it in, again,

          18     chaotic and dark and dusty conditions.

          19                       75.1507 about the prepositioning of

          20     materials to construct a secure space -- I'm getting a

          21     little confused, is that the part where you can have

          22     the secure space or, again, is this for something you

          23     would build within the ten minutes.

          24                       MS. SILVEY:  Which one?

          25                       MR. OPPEGARD:  75.1507(a)(1), you are

                                                                      67


           1     saying Emergency Response Plan shall include the

           2     following.  I guess it is, again, for the

           3     prepositioning and we've already said we don't support

           4     that and think that needs to be withdrawn.

           5                       I also have reservations or we have

           6     reservations about -- I'm trying to give you the right

           7     number, it's 75.1507(d), Subsection D.  If the refuge

           8     alternative sustains persons for only 48 hours, the ERP

           9     shall detail advanced arrangements that have been made

          10     to ensure that persons who cannot be rescued within 48

          11     hours will receive additional supplies to sustain them.

          12     And then you talk down in Paragraph 2 about an analysis

          13     to indicate about the surface terrain, the strata, the

          14     capabilities of the drill rig and all other factors

          15     that could effect drilling.

          16                       We're very dubious about that part of

          17     the rule, again, I would really prefer to see you have

          18     to have a refuge chamber underground and not opt for --

          19     give operators an option to opt for something that to

          20     me is pretty speculative.  I mean we've all seen roof

          21     control plans and other plans get passed around and

          22     they've been Xeroxed a hundred times from mine to mine.

          23     Some miners never even get to see them, even if they

          24     ask to see them, and operators don't even know what's

          25     in them sometimes.  And I see the same thing happening

                                                                      68


           1     there, where you are going to say, well, we're going to

           2     take a cheaper alternative so we're going to say we can

           3     promptly drill into this secure location within 48

           4     hours and, you know, you are going to borrow a plan

           5     that some guy in the next county told you about and you

           6     are not really on top of the situation.

           7                       And again, I don't think we need to

           8     be in a situation where we have people in a quote,

           9     unquote, secure place, that's a permanent location with

          10     the capability to drill and they're in there and

          11     they're injured.  And then when it comes to drilling

          12     you have all sorts of problems, you know, you haven't

          13     made arrangements with a drilling rig or the strata

          14     is -- the drill bits break.  I'm just thinking about

          15     all of the problems they had at Quecreek drilling down.

          16                       And I've been to that site too, it's

          17     near my hometown, and it's right near the surface.  And

          18     there was a road right next to it.  I mean it was like

          19     the ideal situation to get a drill rig in there and

          20     still they had problems.  I think it's risky having

          21     that in there and, again, I think too many people are

          22     going to rely on that and may not be able to follow

          23     through when an emergency actually takes place.

          24                       In conclusion, I think if we had had

          25     refuge chambers at Sago and at Kentucky Darby, we

                                                                      69


           1     probably would have fourteen miners alive today who are

           2     not.  And you know, their families would have been

           3     spared untold grief.  And that's what we're trying to

           4     do and what you are trying to do.

           5                       And so we appreciate your work on the

           6     rule and ask you to take our comments into

           7     consideration and do what's best for coal miners.

           8     Thanks.

           9                       MS. SILVEY:  Thank you, Tony.  One of

          10     the things in my opening statement I said -- I

          11     mentioned that the approval requirements for the

          12     communication facility should have been the same as

          13     they were in Part 75.  So I just want to bring that to

          14     your attention because you commented on 7.504 which was

          15     the communication one.  You said the two-way wireless

          16     but I just want you to know that the communication,

          17     that provision should have been the same as it was for

          18     75.1600 on that.  It was a two-way communication

          19     facility but the wording was supposed to be the same as

          20     in 75.1600.

          21                       On the location of the refuge

          22     alternative, I want everybody to hear this, and we take

          23     into consideration what you said about, you know,

          24     facilitating the location, these alternatives being

          25     marked, and later we'll talk about that.  But just so

                                                                      70


           1     you know, and I'm sure some of you do know this, that

           2     other proposal that we have out now which we're going

           3     to take comment on, have public hearings on in a couple

           4     of weeks from now, as a matter of fact, we'll have

           5     another hearing here in Lexington.  That proposal does

           6     have a provision in there to help facilitate the things

           7     in the escapeway including the location of the

           8     refuge -- some marking for the refuge alternative.

           9     There are things in there to better facilitate escape

          10     in terms of standardized signals, in terms of the means

          11     of egress, how to get out of the escapeway.  But also

          12     tactile indicators.

          13                       And somebody -- I had to ask somebody

          14     when we were writing the rule, what do you mean this

          15     tactile indicator.  And you-all probably know, but I'll

          16     be honest, I have to confess, I really didn't.  And

          17     somebody said, well, you can feel the difference.  So

          18     anyway, the refuge alternative or the refuge chamber, I

          19     should have brought one with me but for the next

          20     hearing we'll take one.  But it's a spiral-type

          21     indicator, wire spiral thing so you can feel and you

          22     know that you are approaching the refuge chamber.  And

          23     there are other things in there that you feel for and

          24     you know what that means, you are getting to an

          25     impediment in an escapeway.  I don't want to turn this

                                                                      71


           1     hearing into that one but that part of it does relate

           2     to a refuge alternative and it is a provision in there.

           3                       I want to ask you just one thing,

           4     with respect to the -- with respect to the

           5     prearrangements that you commented on, the

           6     prearrangements, and I look forward to your comments

           7     too, your specific -- hopefully before the record

           8     closes.  If the operator had the prearrangements

           9     already made for connecting up to a bore hole, I mean

          10     you know, everything prearranged, what's your feeling

          11     on that for the connection to a bore hole?

          12                       And now I mean everything arranged,

          13     not even having to go out and get the drill but have

          14     the arrangements for everything, the contract in place,

          15     et cetera, et cetera.

          16                       MR. OPPEGARD:  This would be for the

          17     secure place that's permanent; right?  You are talking

          18     about the bore hole that would be drilled?

          19                       MS. SILVEY:  The bore hole.

          20                       MR. OPPEGARD:  So am I correct

          21     that --

          22                       MS. SILVEY:  The bore hole would be

          23     providing the breathable air.  And supplies, it could

          24     provide supplies too.

          25                       MR. OPPEGARD:  So they would only be

                                                                      72


           1     required to have the 48 hours.

           2                       MS. SILVEY:  Right.  Or you can let

           3     me know what you feel about that before --

           4                       MR. OPPEGARD:  I think I probably

           5     need to think that over.

           6                       MS. SILVEY:  Sure, think that over

           7     though.  I don't want to put you on the spot.  That's

           8     the only thing I had.  Did anybody else have anything?

           9                       MR. SHERER:  I've got a couple of

          10     things.

          11                       MR. OPPEGARD:  Kenny just wanted to

          12     make another comment if that's okay.

          13                       MR. JOHNSON:  I meant to say it

          14     earlier and I neglected to do that.  About the hearing

          15     itself.  I had to start about 5 a.m. this morning.

          16     Paul the same.  We drove from Harlan County back in the

          17     coal fields.  Just the physical location of the hearing

          18     itself is a problem.  I think there would probably be

          19     more actual coal miners attend this type of hearing if

          20     it was held in closer proximity to where they live.

          21     And it would be less burdensome on them financially.

          22     Speaking for myself as well.  Thank you.

          23                       MS. SILVEY:  Okay.

          24                       MR. OPPEGARD:  I think we had

          25     mentioned that several times but it tends to fall on

                                                                      73


           1     deaf ears.  And I know you-all have travel restrictions

           2     too.  But you never have many coal miners testify at

           3     these things.  I mean hardly ever.  And we had two

           4     widows who wanted to be here and they had car problems,

           5     but they probably could have been there if it were in

           6     Harlan.  They could have found a way there but, you

           7     know, traveling three hours or three and a half hours

           8     is a whole different matter.  And it would really, I

           9     think, speak well for the agency if you made an effort

          10     to inconvenience, although, it would inconvenience

          11     yourselves it would be more amenable or more convenient

          12     for coal miners and maybe would have some miners

          13     testify.  Because those are the people you need to hear

          14     from more than anyone.  Thank you.

          15                       MS. SILVEY:  Thank you.  Eric had

          16     something.

          17                       MR. SHERER:  If you don't mind.

          18     First of all, I really appreciate your input and your

          19     comments.  Mr. Ledford, I especially appreciate your

          20     input, I think you are in a unique position to help the

          21     agency protect miners in the future.

          22                       As you know, we've got a new

          23     regulation that we've put in place a couple of years

          24     ago as far as emergency evacuation with life lines and

          25     an additional SCSR.  So if that would have been fully

                                                                      74


           1     implemented you would have hopefully had more

           2     opportunities to get out.

           3                       Can you help us as far as addressing

           4     where to put these emergency refuge alternatives,

           5     particularly for outby people, I understand that you

           6     were working outby, and how to get to them?  Can you

           7     help us out with some comments on that, please?

           8                       MR. LEDFORD:  Can I get back with you

           9     later and think about that a little bit?

          10                       MR. SHERER:  Sure.

          11                       MR. LEDFORD:  I'm going to think

          12     about that.

          13                       MS. SILVEY:  Anybody else have

          14     anything?  Okay.  Well, Tony then on behalf of MSHA I

          15     want to say that we appreciate, for you and for your

          16     entire panel -- and to, again, to Ms. Thomas and Ms.

          17     North, I didn't have to look down, I was trying to

          18     remember, we appreciate very much your testimony.

          19                       And to Mr. Johnson, your assistance.

          20                       And then finally, Mr. Ledford.  So on

          21     behalf of MSHA, for you and your entire panel, we

          22     appreciate it, again.

          23                       And we look forward to getting

          24     comments from you, Mr. Addington, and also from you,

          25     Tony, before the record closes on August the 18th.

                                                                      75


           1     Thank you.

           2                       MR. OPPEGARD:  Thanks.

           3                       MS. SILVEY:  At this point I guess

           4     people are sort of looking at me.  And they are

           5     probably saying that they would like to take a break.

           6     So you know, we had planned -- you know what they say,

           7     that we'd sort of go on here.  But I think I probably

           8     should take a ten-minute break.

           9                       So please, within ten minutes if we

          10     could reconvene here.  We're just going to take a

          11     ten-minute break and come back.  I'm asking everybody

          12     now, please.  Thank you.

          13                       (A brief break is taken.)

          14                       MS. SILVEY:  We will now reconvene

          15     the Mine Safety and Health Administration's Public

          16     Hearing on the agency's Proposed Rule on Refuge

          17     Alternatives for Underground Coal Mines.  Our next

          18     speaker will be Stuart McLean, Mine Site Technologies.

          19                       MR. McLEAN:  I provided these records

          20     last week but I'd like these ones to be the ones I

          21     officially enter.

          22                       MS. SILVEY:  So the record will show

          23     that the graphics which Mr. McLean is giving us today

          24     will be the ones that are officially a part of the

          25     public hearing record on the agency's proposal on

                                                                      76


           1     refuge alternatives.  And that's today's date, 5

           2     August, 2008.

           3                       MR. McLEAN:  Firstly, thank you for

           4     the opportunity to address the panel and yourself, Ms.

           5     Silvey.  As MSHA was soliciting comments on the

           6     proposed two-way communication facility, Mine Site

           7     Technologies is attending MSHA's public hearings and

           8     making comments to inform MSHA that MST are actually

           9     working on a dedicated and truly wireless solution for

          10     communications with refuge structures.

          11                       Mine Site Technologies has spent

          12     twenty years designing and developing mining-specific

          13     communication systems dedicated for use in underground

          14     coal environments, and always with an emphasis on

          15     safety.

          16                       MST has been widely known for their

          17     through-the-earth communications technology, and recent

          18     collaboration with Australia's Commonwealth Scientific

          19     and Industrial Research Organization have developed and

          20     demonstrated a "Proof of Concept" two-way system highly

          21     suited to refuge environments.

          22                       MST proposes a communication system

          23     suited to a refuge and rescue environment consisting of

          24     a near field bi-directional synchronous

          25     through-the-earth communications link.

                                                                      77


           1                       This link will provide the miner

           2     retreating to a refuge with the ability to send and

           3     receive text messages from the surface without any

           4     dependence on extensive underground infrastructure such

           5     as antennas, cables, or numerous underground nodes or

           6     devices that would possibly be destroyed or severely

           7     disabled in any major incident underground.

           8                       The communication link's proprietary

           9     protocol and modulation scheme are noise-tolerant,

          10     advantageous, self-adjusting, and specifically devised

          11     to provide a robust transfer of data considerate of the

          12     noise and geophysical strata typically associated with

          13     underground coal mining environments.

          14                       The system consists of a permanently

          15     fixed refuge based unit.  We call this a slave, whilst

          16     there will be a master on the surface.  And it is

          17     intended to be portable and will be deployed on the

          18     surface above the refuge.  The master could also be

          19     deployed beside the refuge in case there was like a

          20     rock fall or mine collapse or hazard.

          21                       Other than the different requirement

          22     the components of the system are primarily what we call

          23     a high sensitivity magnetic moment receiver, or a

          24     receiving device; simple single turn transmit loop,

          25     which is a coil of wire or just one turn of wire away

                                                                      78


           1     from the refuge bay, and within the actual refuge bay

           2     would be the hardware and electronics and user

           3     interface for the miner to use.

           4                       I have a few more points on this

           5     piece of paper but they're probably a bit too technical

           6     for this forum.  And I'd like to invite everyone that

           7     around lunch time we will set up a system to

           8     demonstrate the principle operation of the system to

           9     show you that we have proven concept system, that a

          10     system exists, and we can explain to people how the

          11     system is being used and employed.

          12                       And that's pretty much it for me.

          13     And we'll set up the system at lunch time for people to

          14     view.

          15                       MS. SILVEY:  As we all know, Mr.

          16     McLean, you testified at one of our prior hearings, I

          17     believe our hearing in Charleston.

          18                       MR. McLEAN:  Yes.

          19                       MS. SILVEY:  West Virginia.  And I

          20     just have one comment really, as you said you want this

          21     to be the graphic that was entered and part of the

          22     record, but we're talking about a wireless

          23     communication system and this graphic that -- with your

          24     key notes here, I would just like to -- I know

          25     everybody in the room is not looking at it, but --

                                                                      79


           1                       MR. McLEAN:  If I can anticipate your

           2     question --

           3                       MS. SILVEY:  You do, I know you can.

           4     If this is marked, and I believe it's different from

           5     the one you had the other day because I think it was

           6     No. 8 that had this marking on the one the other day, I

           7     might be wrong, and this one is Key No. 9 which shows

           8     the permanent refuge loop, and you have here, usually

           9     buried.  So there is a part of it that is a wire loop

          10     that's buried?

          11                       MR. McLEAN:  The term wireless

          12     communications simply infers there is no wires

          13     connecting the transmit aspect of the system with the

          14     receive aspect of the system.  So I am talking to you

          15     without wires as such but I need tools to talk to you.

          16     Here we're using ears and a mouth.  In these systems we

          17     run a transmit antenna which would be the mouth, and a

          18     receive antenna which would be the ears for each

          19     system.

          20                       But in the current view of wireless

          21     with a lot of underground systems that run

          22     comprehensive backbone or infrastructure, the system

          23     has no reliance on underground infrastructure that

          24     would be a part of providing communications to a miner.

          25     So this system is distinctly different but other than

                                                                      80


           1     what's there and around the refuge there is no reliance

           2     on anything else.

           3                       MS. SILVEY:  Except for this buried

           4     loop, that's what I'm talking about.

           5                       MR. McLEAN:  Yes.  The loop is the

           6     trick, the loop provides that magnetic moment to

           7     transmit our signal up to the surface and vice versa,

           8     from the surface back down.  It's the type of antenna

           9     that are used with those very special low frequency

          10     systems.

          11                       MS. SILVEY:  Okay.  Thank you.

          12                       MR. McLEAN:  Thank you.  We'll see

          13     you at lunch time then.  Thank you.

          14                       MS. SILVEY:  Our next speaker is Bill

          15     Caylor with the Kentucky Coal Association.  Mr. Caylor.

          16                       MR. CAYLOR:  Madam Chairman and

          17     Member of the Committee, my name is Bill Caylor.  It's

          18     spelled C-A-Y-L-O-R.  I'm President of the Kentucky

          19     Coal Association.  The Kentucky Coal Association is the

          20     trade association comprised of surface and underground

          21     coal operations in both the Eastern and the Western

          22     Kentucky coal fields.  Our members mine a major portion

          23     of Kentucky's coal.

          24                       The very first thing I would like to

          25     say today is express my deepest condolences to the

                                                                      81


           1     families here today who have recently lost loved ones

           2     and the many in the audience who have lost fathers,

           3     grandfathers and relatives to accidents, mining

           4     accidents over the many years.  And let's also not

           5     forget the other workers across America like

           6     construction, manufacturing, farming, and a host of

           7     other industries where many more lives have been lost

           8     compared to coal mining.  We need to strive today to

           9     make all workplaces safer for workers, both coal and

          10     non-coal.

          11                       Our industry is a very modern high

          12     tech industry today compared to what it was many years

          13     ago and we take great pride in workplace safety.  We

          14     have seen dramatic safety changes and improvements over

          15     the coal miners' workplace over the years.  Our

          16     fatalities have continued to decline and we believe we

          17     will see a year when we have no fatalities at our

          18     workplace.  And that date cannot come too soon as far

          19     as I'm concerned.  Our workplace injuries are

          20     comparable to the average Kentucky worker.  We have

          21     fewer injuries than construction, manufacturing,

          22     agricultural, and a host of other occupations.

          23                       On the handouts, I did this at 4:30

          24     yesterday, and my secretary put in the wrong chart on

          25     the left.  I had actually done two charts, one that had

                                                                      82


           1     changed statistics.  I did a seven-year chart on the

           2     left, and then I did about a four-year chart on the

           3     right.  And the reason I changed the charts was because

           4     they added health care and social assistance, and as

           5     they modified the transportation warehousing so that it

           6     wasn't apples and oranges.  So I did a seven-year

           7     period comparing injuries in the coal industry to other

           8     occupations, and then I had to start brand new with the

           9     latest four-year period comparing coal mining injuries

          10     to other occupational injuries.

          11                       Now, this one on the left is a little

          12     bit inaccurate so I want to get the correct one to you

          13     at a later date.  But both of them show that the

          14     average coal miner in Kentucky, and these figures came

          15     from US Department of Labor statistics, but the average

          16     coal miner is as safe as the average worker when he

          17     goes to work from injuries everyday.

          18                       And that holds true in the last four

          19     years of statistics, that the average coal miner is as

          20     safe as the average worker.  Safer than construction,

          21     manufacturing, transportation, agriculture, forestry,

          22     fishing, and health care and social assistance.  So

          23     we've got to keep in mind that we are doing a good job

          24     on improving workplace safety in the coal mines.  We

          25     don't want to lose sight of that.

                                                                      83


           1                       But each fatality that we have is one

           2     fatality too many and we strive for that day when we'll

           3     see zero fatalities.  On the next page you will see a

           4     chart that we just graphed the number of fatalities

           5     over the years.  And you can see steady improvement.  I

           6     think that is due to a -- a lot of the credit of that

           7     is due to the state and federal mine safety agencies as

           8     well as the commitment to safety from coal companies.

           9                       We should never miss an opportunity

          10     to inform the news press of our continuing improvement.

          11     Last year we had two surface fatalities in Kentucky but

          12     we had no underground fatalities.  That was the first

          13     year, I think -- it had been since November the 4th,

          14     2006, and Johnny Green, you correct me if I'm wrong on

          15     that date, but roughly that date, we went a full year

          16     before we had an underground surface fatality.  And

          17     then we just had one a couple of weeks ago.  So we went

          18     at least one year, it was the first time since 1890, I

          19     think 1890 when records were kept that we had zero

          20     underground fatalities in Kentucky.  And we were very

          21     proud of that fact and, again, we are striving for no

          22     fatalities because one fatality is one too many and

          23     there's no excuse.

          24                       But when that was printed in the

          25     press in the Herald Leader, we saw that, not on the

                                                                      84


           1     front section, but in the second section of the paper,

           2     not on the front page but on the third page, and buried

           3     at the very bottom of the third page.  And we were very

           4     frustrated that such improvements went unnoticed.  And

           5     I think that's a compliment to the industry, to state

           6     safety agencies, and to MSHA for the hard work that

           7     we've done over the years.

           8                       As an industry we are committed to

           9     making refuge alternatives a viable option.  As you

          10     will note in our comments, we will express some

          11     frustrations over the process and over some of the

          12     specifications for the alternatives.  Our intent is to

          13     improve the function and sustainability of refuge

          14     alternatives.  Any quick solution to a problem brings

          15     inherent logistical problems.  These chambers and

          16     alternatives are expensive and are a long way from

          17     perfection.  What we strive for are pragmatic solutions

          18     that can improve and involve -- evolve overtime,

          19     without unnecessary major financial expenditures.

          20     These issues that we highlight do not argue against

          21     safety of our miners, rather our comments argue for

          22     building a better and sustainable refuge alternative.

          23     Please keep this in mind when considering our comments.

          24                       The following are some general

          25     concerns with the new proposed rule on refuge

                                                                      85


           1     alternatives:  First I want like to speak to

           2     grandfathering.  Shelters good enough for existing

           3     mines really should suffice for future mines when

           4     they're moved.  The proposed rules in the preamble are

           5     confusing and they are in contradiction to the PIB

           6     07-03.  This PIB was issued and used by operators to

           7     comply with the breathable air provisions of the MINER

           8     Act.  A great deal of money has been expended by coal

           9     operators and vendors to provide refuge alternatives

          10     much earlier, much earlier than the effective date and

          11     now these refuge chambers appear to be required to be

          12     discarded after five or ten years.  The PIB 07-03 had

          13     no guidance or requirements as to the surface area of

          14     the volume for miners.

          15                       We question whether the requirement

          16     for the ability to signal the surface from the refuge

          17     alternatives should be required since this method has

          18     not been deployed by MSHA in many years.  The concern

          19     is having to potentially leave the chamber to make

          20     these signals.  This could be unduly dangerous or

          21     hazardous to the coal miner himself.  The proposed

          22     rules would require total redesign and reengineering of

          23     the current refuge chambers/alternatives.  And it is

          24     unlikely these units that have been produced or are

          25     currently in production could be modified to meet

                                                                      86


           1     proposed requirements.  This requirement is viewed as

           2     unduly penalizing those operators who, in good faith,

           3     have ordered refuge chambers or constructed refuge

           4     alternatives in advance to promote safety for their

           5     workers.

           6                       Many coal companies have tried to be

           7     proactive and be one of the first to comply with the

           8     breathable provisions of the MINER Act, but now they

           9     seem to be punished.  These companies have dedicated a

          10     lot of time and money and effort to constructing safe

          11     havens and are confident they would provide a safe

          12     shelter for miners for a proper period.  They feel that

          13     ten years should be a minimum length of time they

          14     should be allowed to use their safe havens which have

          15     currently been approved in their Emergency Response

          16     Plans.

          17                       Grandfathered refuge chambers should

          18     be allowed to be moved from mine to mine, if needed.

          19     MSHA requests comments on the apparent temperature and

          20     mitigation of heat stress and heat stroke.  Comments

          21     should address the generation of heat and the methods

          22     for measuring heat stress on persons occupying the

          23     refuge alternative.  Another miner issue is lighting.

          24     Lighting is an issue that was not initially addressed

          25     but now is and we require design, engineering, and

                                                                      87


           1     retrofitting.  MSHA should consider flexibility on this

           2     issue.  Glow sticks, as an example, are a very

           3     effective source of lighting which should be considered

           4     at least.  We also believe this proposal requires

           5     technology that may not be currently available.  We

           6     must be pragmatic in our approach to solving this

           7     issue.

           8                       Now, until we have a history of how

           9     refuge chambers hold up we question why don't we place

          10     a ten year replacement.  The proposed rules would

          11     require total redesign and reengineering of the current

          12     refuge chamber alternatives and it is unlikely that

          13     those units already produced or currently in production

          14     could be modified to meet the proposed requirements.

          15     The proposal requires technology that many believe are

          16     not currently available.

          17                       In terms of needing additional time

          18     for comments, MSHA acknowledged it had two years to

          19     study this issue, and then to propose this rule and to

          20     expect the industry to evaluate the comment within a

          21     two-month period.  We feel a little additional time is

          22     warranted for review and comment, and respectfully

          23     request an extension on the comments period.  And I

          24     know we've got some restrictions from the MINER Act but

          25     the ability to submit some additional comments with a

                                                                      88


           1     little extra time, I think would be very helpful for

           2     everybody.

           3                       In addition, the proposed rule has no

           4     implementation schedule or effective dates but many

           5     provisions that are not currently available and would

           6     require extensive design, engineering, production and

           7     implementation work, this needs to be addressed.

           8                       Now, regarding pre-shifting multiple

           9     times daily.  The proposed rule requires a pre-shift

          10     examination.  When in most cases the manufacture itself

          11     requires only weekly examinations.  The manufacturer's

          12     recommendations we feel should be followed.  It serves

          13     no practical purpose to examine refuge chambers too

          14     many times, especially when there are three shifts

          15     working each day.  This a pragmatic problem.  And I

          16     want to give you an example of how it can be a

          17     pragmatic problem.

          18                       There's one system currently in use

          19     as a safe haven to provide breathable air that is not

          20     hooked up to pressure gauges.  The company stores

          21     twelve compressed oxygen tanks in their safe haven, and

          22     if they had to hook the pressure gauge up to each tank

          23     every eight hours, which is every shift, which is the

          24     time interval which is required for a pre-shift

          25     everyday, it would leak valuable oxygen from the tank

                                                                      89


           1     that would be needed if an emergency did, in fact,

           2     occur and they would have to eventually be replaced.

           3                       The company doesn't have time --

           4     doesn't have their tanks hooked up during storage to

           5     help prevent leakage, and they truly believe if the

           6     tanks were hooked up a leak is more likely to occur.

           7     Tanks that are hooked up during the transportation of

           8     the safe haven sleds would have a much greater chance

           9     to start leaking and, therefore, they believe that it

          10     would not be of benefit for their employee's safety to

          11     leave them hooked up during storage or transportation.

          12                       The oxygen tanks that are stored in

          13     their safe haven sleds are fully enclosed and protected

          14     in metal compartments and, therefore, the company

          15     believes that if the tamper-evident seal is in place at

          16     a weekly examination of a safe haven it would be

          17     sufficient.  And an examination after the safe haven

          18     sleds are moved would be sufficient to ensure the

          19     mechanisms required to activate the refuge alternative

          20     and the ready availability of compressed oxygen and air

          21     are in good working order.

          22                       Regarding expectation training, no

          23     time frame, no implementation schedule has been

          24     expressed.  The requirement for expectation training is

          25     complex and complicated.  It would be difficult to

                                                                      90


           1     subject miners to the heat and humidity that miners

           2     would be exposed to in the refuge alternative.  No

           3     expectation training is currently required and

           4     simulators are not developed or available.  The

           5     proposed rules do not address an implementation

           6     schedule in this area.

           7                       And I would like to make one note at

           8     this point, where it was mentioned that there was a

           9     failure of qualified training in east Kentucky, I don't

          10     think that statement has any basis in fact.  The MINER

          11     Act has improved dramatically the training in smoky

          12     conditions all over the United States and it is simply

          13     unfair to try to single out east Kentucky as reportedly

          14     showing having less training than any other area of the

          15     United States.

          16                       The need to move refuge chambers from

          17     section to section, there should be a maximum distance

          18     for the refuge chamber to be located from the face but

          19     there should not be a minimum.  There should not be a

          20     prohibition of placing the refuge alternative within

          21     the line of sight of the bases due to mining plans and

          22     conditions requiring such placement.  There should not

          23     be a requirement that a refuge alternative cannot be

          24     placed within 500 feet radially of a belt drive, et

          25     cetera, because limits imposed by mining plans or

                                                                      91


           1     mining conditions.

           2                       The provision requiring the location

           3     of a refuge alternative where mechanized mining

           4     equipment is being installed or removed would require

           5     duplication and may effect fewer people than on a

           6     normal active section.  There may be only four to six

           7     or fewer miners in these areas.

           8                       And I'd like to make another note at

           9     this point, there is available rapidly inflatable seals

          10     that inflate in a matter of one or two minutes which

          11     seal off areas very, very tightly.  They are safe and

          12     quick alternatives available.  We try to conduct

          13     quarterly problem solving meetings down in Hazard,

          14     Kentucky where we involve MSHA, the State, and the

          15     mining industry.  And many times we'll have vendors

          16     come in.  And we did have a vendor come in, and it's

          17     almost like an inflatable life raft, that thing went up

          18     immediately and it's a very tight seal.  So there is

          19     some very pragmatic solutions without having to

          20     actually construct, take and try to construct an

          21     alternative.  So there is a lot of very valuable and

          22     very effective alternatives in the marketplace today.

          23                       The need to tie refuge chamber

          24     location from section, there should be a -- excuse me,

          25     I just went over that --

                                                                      92


           1                       There should not be a requirement

           2     that miners be evacuated if the refuge chamber is

           3     removed from service for some reason.  The operator

           4     should be able to provide an alternative that would

           5     provide the same level of protection and continue to

           6     operate.

           7                       Now I'd like to touch on the capacity

           8     of the refuge chamber.  The refuge alternative is an

           9     emergency life saving product that should not be

          10     required to be this spacious.  The required 96 hours of

          11     oxygen seems to be excessive and we recommend that it

          12     be reduced to 48 hours.  MSHA has not demonstrated the

          13     need for 96 hours in its preamble in the proposed

          14     regulation through example, incident, or research.

          15                       The use of 48 hours appears to be

          16     confirmed as a reasonable value based on Table 4 on

          17     Page 22 of the 2007 Foster Miller Phase II Chapter 3

          18     study which was commissioned by NIOSH under the MINER

          19     Act.  In this report, NIOSH examined a total of twelve

          20     past mining disasters where refuge stations would have

          21     had a positive impact on saving lives.  Table 4 of the

          22     study indicates in all but one of the twelve cases

          23     rescuers would have made contact with trapped miners

          24     within 48 hours.  We feel this indicates a substantial

          25     safety factor compared to the proposed present 96 hours

                                                                      93


           1     and that as time increases so does the complexity of

           2     sustaining trapped miners.

           3                       There have been many enhancements to

           4     mine emergency programs and rescue capabilities over

           5     the past two years.  There has been a substantial

           6     increase in the number of mine rescue teams since 2006

           7     and the response time has been cut in half.  There has

           8     been a substantial increase in the number of SCSRs and

           9     distribution of the SCSRs along escapeways.  Additional

          10     life lines, wireless communications, which are still

          11     proving to be somewhat problematic, and individual

          12     mine-tracking devices have been installed.

          13                       Substantial improvements in training

          14     allows miners to better understand their escape

          15     options, and there are many other improvements which

          16     collectively will reduce the miners' need to barricade

          17     as well as reduce rescue response time.

          18                       The proposed requirement of 15 square

          19     feet and a minimum of 60 cubic feet of usable volume

          20     per person is based more on comfort rather than

          21     providing life-sustaining atmosphere to trapped miners,

          22     and if implemented as currently written will

          23     unnecessarily de-rate the occupancy and in some cases

          24     preclude the use of these devices, especially in

          25     thinner seams.

                                                                      94


           1                       The other issue, miner issue, is

           2     lighting.  This issue was not initially addressed but

           3     is now and would require design, engineering, and

           4     retrofitting of existing refuge chambers.

           5                       I'd like to touch briefly on issues

           6     that may arise on tracking and communication devices.

           7     Communication devices are required in the refuge

           8     alternative and MSHA seeks comments on this proposal

           9     but there has not been a resolution of the wireless

          10     communication required in the open portions of the

          11     mines.  We need to keep that in mind at this point.

          12                       We were pleased to see that the

          13     proposed rule purports to grandfather state-approved

          14     units, and we feel it is imperative that the final rule

          15     clearly and unconditionally accepts current

          16     state-approved units as meeting all requirements of

          17     MSHA's rule on refuge alternatives, especially the

          18     square footage and the volume requirements found in the

          19     proposed rule.  And that such grandfathering extends

          20     for the life of the units or for a ten-year maximum

          21     period at the minimum.  Many states do not approve

          22     refuge chambers and I think that includes Kentucky.

          23     The proposed rule is not clear on this point as it

          24     needs to be, and consequently widespread confusion

          25     reigns within the industry as to the agency's intent on

                                                                      95


           1     this issue.

           2                       The question is very simple, will

           3     breathable air solutions that have been approved in

           4     mine-specific emergency action plans be acceptable?

           5     Many of the chambers and alternatives have been

           6     approved by MSHA in various states.

           7                       In closing I'd like to make three

           8     points.  Number one, the state mine rescue team concept

           9     is very important.  I feel like Kentucky has the best

          10     state mine rescue teams or the best state rescue teams

          11     in the nation.  We're very proud of what Kentucky has

          12     done and we would ensure that these teams remain

          13     available.  I think they're critical for mine rescue.

          14     These are the guys that have the guts to go in, just

          15     like firemen, into dangerous situations and rescue

          16     people and many, many times they do not show concern

          17     for their own safety like firemen.  But they go after

          18     people and try to rescue people and I'm very proud of

          19     our state run rescue team.

          20                       The second point I'd like to mention

          21     today is the need to focus on behavior modification.  I

          22     truly believe in my heart if we're going to take safety

          23     to another level, we need to focus on the education of

          24     the individual miner; not just for the miner himself or

          25     for the operator, but more importantly for his family.

                                                                      96


           1     We need to teach the miner safe work habits.  MSHA has

           2     an excellent program of the "Walk and Talk" where we

           3     sit and observe the miner as he works and try to teach

           4     the miner safe work habits.  We need to be more

           5     teachers and less policemen writing tickets.  I think

           6     that's the way that we're going to take safety to the

           7     next level.

           8                       And we can do that and we can do that

           9     through what I call behavior modification.  That is

          10     scientifically -- that was shown to me by Dr. Hank

          11     Cole, a doctor from the University of Kentucky many

          12     years ago.  And he sold me on that concept.  And I

          13     think that concept needs to be constantly reinforced,

          14     like with MSHA's work on problems.  I think we can do

          15     more to teach safety principles and keep people alive

          16     and teach them why it's important to work safely.  And

          17     the most important reason is for their families.

          18                       The third point I'd like to make is

          19     just a statement.  I think that coal miners truly are

          20     American heroes providing cheap, dependable energy for

          21     our country.  Thank you very much.

          22                       MS. SILVEY:  Thank you, Mr. Caylor.

          23     I have a couple of comments and, first of all, I want

          24     to comment on MSHA's proposed -- what we said included

          25     in the proposed rule for the grandfathering and what we

                                                                      97


           1     said for the estimated -- in respect to that we talked

           2     about an estimated service life.

           3                       Now, first of all, I'm sure that for

           4     the manufacturers who are in the audience, and I know

           5     we have some manufacturers in here that when -- for

           6     those who either, one, have refuge alternatives

           7     approved, the prefabricated self-contained ones or even

           8     portions of refuge alternatives, either constructed in

           9     place ones -- if you have refuge alternatives or

          10     components approved I'm sure that in your -- or

          11     alternatively, no pun intended, if you have refuge

          12     alternatives in the process of being submitted, in the

          13     process of being approved, that when you -- when your

          14     material is all submitted at the end of the day you

          15     will have suggestions for what you consider to be an

          16     estimated service life for that alternative.  That's

          17     the first thing I want to say.  I'm sure manufacturers

          18     will have that in their many sets recommendations for a

          19     lot of things, how to use, you know, what people should

          20     be trained on, the significant elements of the refuge

          21     alternative, and that type of thing.

          22                       We asked in our opening statement for

          23     suggestions on the estimated service life, you know,

          24     when we talked about the grandfathering provision we

          25     included, and I'm going to reiterate here, for the

                                                                      98


           1     prefabricated unit we said we were grandfathering in

           2     the state-approved units or the units that were

           3     approved by MSHA in the ERP for the prefabricated one

           4     for the -- until replaced or a ten-year maximum.  For

           5     the components we said until replaced or a five-year

           6     maximum.

           7                       If you have suggestions for -- and

           8     suggested alternatives to that, if you would include in

           9     your comments any suggestions that you have and

          10     specifically why, and I think Mr. Addington commented

          11     on that earlier.  And so now you, Mr. Caylor, and if

          12     anybody has any suggestions, would you do that before

          13     the comment period closes on the 18th.

          14                       I want to now go to a second comment

          15     which is not in the order in which you raised them but

          16     because it's in the order that I'm thinking about them.

          17     And that is -- so I take note of the fact that you

          18     requested an extension of time, I think that my opening

          19     statement I also said time was of the essence, and I

          20     think everybody here understands that.  I said time was

          21     of the essence because we have to develop a final rule

          22     by December 31, that includes developing, going back --

          23     let's say hypothetically, and I'm going to say more

          24     than hypothetically, the record closes on the 18th of

          25     August, then we've got to go back and develop a

                                                                      99


           1     final -- we've got to evaluate the comments and the

           2     record and we've got to develop a final rule and we've

           3     got to develop the preamble, we've got to develop the

           4     Regulatory Economic Analysis, we've got to send it

           5     through the Labor Department, we've got to send it

           6     through OMB, and then we have to send it to the Federal

           7     Register.

           8                       So that may look like a lot of time

           9     but for everybody who is being -- not that I'm sort of

          10     defending ourselves, or setting up in advance, but

          11     that's really a real short period of time for doing

          12     what we have to do.  And I guess I say that with all

          13     due respect to your request here today, that's almost

          14     impossible to do but we're going to do it because we

          15     have to do it.  So that's one of the reasons I did put

          16     in my opening statement that time was of the essence

          17     and we probably were not going to be able to allow any

          18     extensions of time.

          19                       Now, to specific comments, one of the

          20     things you said, so for anybody who says this, that the

          21     PIB 07-03, and for those of you who don't know that

          22     happens to have been the PIB on breathable air, had no

          23     guidance or requirements as to surface area or volume

          24     for miners.  And it didn't have any guidance on surface

          25     area volume because it was the PIB on breathable air,

                                                                     100


           1     it was not the PIB on refuge alternatives.  Just so

           2     people will know that.  And you know it's hard -- I've

           3     been saying that and saying that and saying that.  So I

           4     say it one more time.  It doesn't hurt to say it one

           5     more time.

           6                       On the -- if you have any comments on

           7     the apparent temperature and mitigation of heat stress

           8     and heat stroke, we ask for comments on that so if you

           9     have anything that you intend any additional to get to

          10     us, please do that.  And I mentioned this earlier at

          11     some point, I think we all take notice of the fact that

          12     some of this -- some of the issues involved in refuge

          13     alternatives do involve developing technology.  So for

          14     all of the people who are involved in this, we

          15     appreciate your efforts but yet we know that by

          16     December 31st we have to put something in place.

          17                       So for everybody here, and I say that

          18     for everybody, I think what that means is we do make

          19     the best decisions we can and do the best job that we

          20     can, and particularly with respect to training and

          21     other elements, and then, you know, because -- and

          22     somewhat because it's developing technology.  As I

          23     said, we do the best we can and then if there comes the

          24     time when we have to learn from that best, then we just

          25     have to do whatever, you know, make whatever

                                                                     101


           1     improvements that we have to.

           2                       Mr. Caylor, when you said, and you

           3     said this another time too, I'm going to get to it, the

           4     proposal requires technology that many believe is not

           5     currently available.  And I believe over here somewhere

           6     else you talked about the technology.  If you would, in

           7     anyplace where you think -- here it is, many provisions

           8     that are not currently available.  If there are any

           9     specifics that you have where the proposal has

          10     requirements that are not currently available, if you

          11     would be as specific as possible with respect to those

          12     provisions.

          13                       MR. CAYLOR:  We will get that to you.

          14                       MS. SILVEY:  Okay.  And then finally,

          15     on the -- I guess the last -- I have two more comments.

          16     The last one is on the expectations training, and you

          17     said there was no time frame.  There was a -- we

          18     proposed that that be annual expectations training for

          19     the miners in the use, the activation, and there was

          20     one other -- we said construction, if applicable.  And

          21     yet we understand several people's comments about the

          22     ones to be constructed.  But that was annual

          23     expectations training.

          24                       And what we -- when we did our

          25     estimate of the impact of the rule we estimated that

                                                                     102


           1     most operators would chose to do this annual

           2     expectations training, to schedule it along with their

           3     annual expectations training for the emergency mine

           4     evacuation rule.  And that they had to, because we

           5     didn't require that they do that, but that's -- we

           6     thought that they might schedule it at that same time

           7     since it would be annual expectations training.

           8                       Now, while we're talking about annual

           9     expectations training, because we do believe that that

          10     is a very important element in the proposal, I would

          11     also appeal to the manufacturer's again that as they

          12     finish their units and with respect to their

          13     recommendations, if they have any suggestions relative

          14     to training if they would -- in their material, if they

          15     would include that also.

          16                       And then the final thing, you

          17     commented on the capacity of the refuge chamber, and

          18     we've gotten comments on that.  We got comments from

          19     the state of West Virginia on that.  And this goes for

          20     anybody in the room too, if you have a suggestion to

          21     the space and volume requirements that we included in

          22     the proposal, would you be specific.  I'm not asking

          23     you to do it right now, I could ask you, do you have an

          24     alternative suggestion to the 15 square feet of space

          25     and the 60 cubic feet of volume that we included in the

                                                                     103


           1     proposal?  But you know, I'm not putting anybody on the

           2     spot.  If you don't have a suggestion right now, if you

           3     would provide that to us before the record closes on

           4     the 18th I would be most appreciative of that.

           5                       MR. CAYLOR:  Will do.

           6                       MS. SILVEY:  Those are only comments

           7     that I have.  Do you-all have anything?

           8                       MR. SHERER:  Mr. Caylor, at one point

           9     in time you were talking about removing a refuge

          10     alternative from service and allowing the operator to

          11     continue to operate if some -- let's see, alternative

          12     that would provide the same level of protection could

          13     be available.  Could you expand on that or tell us what

          14     you mean?

          15                       MR. CAYLOR:  Well, that could be like

          16     the inflatable.  If they had a sled, a chamber and they

          17     took that out, they could put the inflatable unit in

          18     that would inflate within a minute.  There's other

          19     alternatives that could go in that would be pragmatic

          20     that may or may not be the best alternative but it

          21     would be for a short-term alternative.

          22                       MR. SHERER:  Thank you.

          23                       MS. SILVEY:  Okay.  Well, then, I

          24     don't think we have any further comments or questions,

          25     Mr. Caylor.  But we would be, as I said earlier, we

                                                                     104


           1     would be most appreciative if on the things you

           2     included in your comments and further comments I asked

           3     you, if you would provide those specifics to us before

           4     the record closes.

           5                       MR. CAYLOR:  I will get this back to

           6     the industry in general and we'll try collectively to

           7     respond to those excellent questions.

           8                       MS. SILVEY:  Okay.

           9                       MR. CAYLOR:  Thank you very much.

          10                       MS. SILVEY:  Thank you very much for

          11     your comments.  At this point I sort of have two

          12     options here.  And I'm looking at everybody and I sort

          13     of know what option I would take.  So maybe I will just

          14     do that.  And Mr. Hendren, where is Mr. Hendren?

          15                       MR. HENDREN:  Right here, ma'am.

          16                       MS. SILVEY:  The option is that we

          17     would recess for a period of time, hopefully not too

          18     long, and take a walk through the refuge chamber that's

          19     out on the parking lot and then reconvene and have Mr.

          20     Hendren come back, because I'm sure the panel will

          21     probably have a few questions to ask you after the

          22     walk-through.

          23                       And the other option is to reconvene

          24     for lunch and then do this after lunch.  Okay.  Well, I

          25     guess we could reconvene for lunch.  And we'll

                                                                     105


           1     reconvene for lunch and come back after lunch.  So

           2     would people please come back after lunch at -- it's

           3     about 12:05.  Could you please come back in one hour,

           4     please, and we will reconvene at that time.

           5                       (A brief break is taken at

           6                       12:05 p.m.)

           7                       MS. SILVEY:  We will now reconvene

           8     the Mine Safety and Health Administration Public

           9     Hearing on the Proposed Rule on Refuge Alternatives for

          10     Underground Coal Mines.

          11                       At this time the panel will take a

          12     walk-through through a refuge alternative.  CD -- at

          13     this time the panel will take a walk-through through

          14     the refuge alternative that has been brought here by

          15     Mr. Connie Hendren of CD Safe Shields, Inc.  After the

          16     walk-through we will come back and we will be -- Mr.

          17     Hendren will be available to answer any -- and

          18     representatives of his company, to answer any questions

          19     which the panel might have.  So at this time we will

          20     take a walk-through of the refuge chamber.

          21                       (A brief break is taken

          22                       at 1:07 p.m.)

          23                       MS. SILVEY:  At this time we will

          24     continue with the Mine Safety and Health

          25     Administration's Public Hearing on the agency's

                                                                     106


           1     Proposal on Refuge Alternatives.

           2                       I think we may have -- I first want

           3     to say that we appreciate CD Safe Shield and the

           4     walk-through that we got of the refuge chamber and

           5     maybe some of us may have a few comments, questions

           6     that we might want to ask.  And that's where we are.

           7                       You heard this morning, I know

           8     you-all sat through the testimony we heard this

           9     morning.  And I believe it was Mr. Caylor who made

          10     comments on the examination and the pre-shift.  And as

          11     he did that I believe he was talking about one of the

          12     chambers that was already in the mines.  And he was

          13     talking about the manufacturer had recommended weekly

          14     examination of that particular chamber.  And I was

          15     looking at the one outside, do you-all make any

          16     recommendations on examination of yours yet, or have

          17     you?

          18                       MR. HENDREN:  To date we're looking

          19     more in the form of a monthly, rather than a weekly.

          20     You can do whatever you want to do.  I'll tell you,

          21     from what I understand the reason that that particular

          22     unit is needing to be examined on a weekly basis is

          23     because the possibility of problems that could occur

          24     with the system, the roof system itself, and them not

          25     knowing.  And I think that would be a smart move on

                                                                     107


           1     their part with doing that.  If there's a problem with

           2     our unit I think it could be checked from the exterior

           3     and it could be seen from the exterior.

           4                       If there's a problem with the

           5     inflatable unit, you can have a rip in it and not know

           6     it until you go to inflate it.  And NIOSH had a problem

           7     with that when they started doing that.  So I would

           8     suggest for us on a monthly basis.

           9                       MS. SILVEY:  Okay.

          10                       MR. GEVEDON:  From a design

          11     standpoint I don't think you could ever check a piece

          12     of safety equipment often enough, just due to the

          13     nature of it.  But it's similar to your smoke detector,

          14     you trust the batteries are in.  There's a situation

          15     where it's not, you are asking for logging and

          16     monitoring that could be set up very simply in

          17     relationship to testing this.

          18                       And actually, we've got it down to --

          19     there's four applicable things that would need to be

          20     viewed and inspected, you have got your voltage, your

          21     air supply that guarantees you have got your pressures,

          22     which is a pressure dial and your voltage unit, and

          23     then you have the two subsequent tests.

          24                       Now, they are asking for a structural

          25     test periodically so if you are testing fourteen times

                                                                     108


           1     a day you will have to replace your test air, but it

           2     takes a very small amount of test air to actually test

           3     the integrity of the two chambers.  But that's not your

           4     livable air, that's testing air.

           5                       So if periodically the unit needed to

           6     be opened and the actual testing air replaced, that's

           7     very doable and very simple in relationship to it.

           8                       MS. SILVEY:  Well, you know the

           9     saying, what is it, a picture is worth a thousand

          10     words.  So I will say that I was glad to walk through

          11     that and see it.  With respect to some of the things

          12     that you showed us, for example, the CO2 absorption

          13     system and you had -- obviously you had the food and

          14     the water.  And it got me to thinking that there are

          15     things that the miners have to do, it appears to me,

          16     things that they have to be familiar with.

          17                       And then you heard me say this

          18     earlier, have you-all thought about, and I didn't look

          19     through your book yet, have you-all done any training

          20     materials or have you thought about doing that?

          21                       MR. GEVEDON:  If you will look

          22     through, no need to thumb through that, it is fairly

          23     healthy, but as you look through under those sections

          24     we've outlined the type of pictorial training material

          25     that we would prefer to use.  It would all be charted

                                                                     109


           1     and hung.  It was recommended that due to the

           2     situation, basically the consultants we asked said

           3     basically can you keep it completely pictorial?  You

           4     look at the picture and you do whatever the picture

           5     shows.  You don't have to read anything or calculate or

           6     tabulate or these types of things, which is one reason

           7     we moved away from gauges basically to indicator

           8     lights, if all of your lights are lit and green, you

           9     are in good shape; if you have got some yellow ones,

          10     uh-oh, you have got a problem; you have got red ones,

          11     do something about it now.

          12                       You will find through, I won't take

          13     you to school on the book, but you will find some

          14     examples of the type of cartoon we will use to

          15     demonstrate these.  And I'll give you an example, you

          16     don't have to be able to speak English to pull the card

          17     from the back of the seat on the airplane to look and

          18     see how to get out of the slide.  We will keep it

          19     absolutely as simply as possible for the purposes of

          20     making it as effective as possible, so there's very

          21     little chance for someone to also -- most of the

          22     systems are basically tamperproof.  You can leave the

          23     air but it will meter itself out and shut down, so

          24     there's really nothing you can do under duress like

          25     pull the wrong lever and have any difficulties

                                                                     110


           1     accordingly.  I hope I answered your question.

           2                       MS. SILVEY:  I think you have.  I was

           3     going to say, so we have this requirement in the

           4     proposed rule, the proposal for annual expectations

           5     training which said that miners will, you know, take

           6     the training on actually -- sort of like simulated

           7     process of what they will go through to get it started,

           8     you know, if they were in an actual emergency

           9     situation.

          10                       You heard -- well, you may not have

          11     heard because it might have been at the Charleston

          12     hearing, one of the persons who testified said --

          13     because we said -- one of the things we said that they

          14     should be exposed to actual heat and humidity

          15     conditions.  One of the commenters said that they

          16     didn't think that miners should be exposed to the

          17     actual heat and humidity conditions.  Do you have a

          18     comment on that?  Or if you don't have a comment now if

          19     you have a comment before the record closes, because

          20     I'm not trying to put anybody on the spot.

          21                       MR. HENDREN:  Well, one thing I would

          22     say, certainly, if they're exposed to this they would

          23     be more likely to understand how they would react to

          24     it.  And when you get a controlled atmosphere, an

          25     environment, you are going to make decisions that you

                                                                     111


           1     are not going to make when it's not controlled.  And

           2     that's really -- I'm not trying to talk on both sides

           3     of my mouth but that's how I would answer that

           4     question.

           5                       MS. SILVEY:  I don't have any more

           6     comment.  You have some comments.  I might but I'll

           7     think about it.

           8                       MR. EPPERLY:  You made a comment

           9     outside pertaining to the area and volume for that

          10     particular unit, and from what I saw it looked like the

          11     space for where the miners would be would be eight feet

          12     by eight feet by four feet for this particular unit,

          13     which is 256 cubic feet.

          14                       And you understand too, with our

          15     process that if you don't agree with what the proposed

          16     rules were pertaining to 15 and 60 -- I kind of got you

          17     thought maybe those numbers you don't agree with.  So

          18     we'd like to -- if you do have comments we would like

          19     to get those as to what you feel is the proper or

          20     correct amount of space.

          21                       MS. SILVEY:  Your recommended space

          22     and volume.

          23                       MR. HENDREN:  You understand what

          24     we've done is we've put four people in that space and

          25     then we've put six people in that space and, you know,

                                                                     112


           1     it's just a general -- not necessarily a disagreement

           2     but an assumption on how you feel this space is used.

           3                       We feel like because a stool can be

           4     placed on that area that you can have a place for your

           5     feet, for your backside, and for your back and head

           6     that four panels at two feet wide gives you 16 square

           7     feet.  And we will certainly send our recommendation to

           8     that.

           9                       I certainly believe that it's way too

          10     much personally, you do not need two panels wide to sit

          11     on this and to move around on it, you know, but that's

          12     our opinion.  But we've tried it so many different

          13     ways, and the thing about it is, of course, mine

          14     companies want to get the most they can for their money

          15     and everybody that we've shown it to feel like that one

          16     seat per one person.  And it certainly, you know, four

          17     days may make a difference in how you are in there.

          18     How many people are going to be in there four days.  I

          19     heard this morning that 48 hours would be enough air,

          20     you know, it may be for them but if I'm in there I want

          21     four days because I think it may take four days.

          22                       So one seat, we think, is wide

          23     enough, big enough for it.

          24                       MS. SILVEY:  I think then to

          25     follow-up on what Howard was saying, that's kind of

                                                                     113


           1     what we wanted your recommendation, what you recommend

           2     for the space and volume.

           3                       MR. HENDREN:  We'll do that.

           4                       MS. SILVEY:  If you want to submit

           5     that to us, you can do that.

           6                       MR. HENDREN:  Thank you very much.

           7     Thank you.

           8                       MR. SHERER:  I've got a related

           9     comment.  I notice that your airlock takes up quite a

          10     bit of space, is there some way you could possibly

          11     consider using that for shelter purposes, moving people

          12     in and out of the different compartments as people need

          13     to use the airlock.

          14                       MR. GEVEDON:  Yes.  This is -- and

          15     the discussion that was started out there was the

          16     airlock on that particular unit had been designed to

          17     cycle people in and out and was approximately four feet

          18     wide.  The need for an airlock is not disputed.  The

          19     need for the change out and the wash out of

          20     contaminants in the airlock are understood.

          21                       There are a couple of applications

          22     that we're looking at that I am going to be submitting

          23     that might look at a landscape that looks for the fact

          24     that if we can minimize contamination of that it does

          25     become a living area.

                                                                     114


           1                       The reason that antechamber is so

           2     long, according to the landscape now, we have to be

           3     able to enter and exit cleanly, which means

           4     non-contaminated, with a stretcher.  So it's six feet

           5     long for the purposes of getting two rescue people

           6     and -- to give you an example, when we started building

           7     doors our rescue consultants came in and said listen,

           8     make them this wide and I said why?  He said so I can

           9     get through there with all of my gear on and actually

          10     assist.

          11                       So the need for that stretched out in

          12     relationship to getting a stretcher in and out.  Now,

          13     during our recommendation on some of that we're going

          14     to show you some testing that we've been doing on

          15     something that will allow me the ability to -- not wash

          16     that out is important, but my ability to basically run

          17     people into a safe environment as quickly and

          18     effortlessly as possible.

          19                       And you will see during the white

          20     paper our primary concern, the airlock itself currently

          21     the way it sits is not technically living space due to

          22     the fact that the redundancy of change outs in the air

          23     would require you to keep it set up.  Now, you open the

          24     door between the living chamber and the airlock, you

          25     immediately have warm air in there.  So when you close

                                                                     115


           1     it you retain some.  To give you an example though, we

           2     at least did try to trap that.  You noticed a venturian

           3     air system back in.  If you were exiting the living

           4     chamber and there's good air in the airlock, we can

           5     pull that back in.  And we can try to save some of that

           6     by one way pulling it back in and then entering into

           7     the airlock and moving out.

           8                       So I believe we have a couple of

           9     recommendations that hopefully might make a little

          10     better unit in relationship to getting people in and

          11     out of it and conserving breathable air.  So that's one

          12     suggestion that we would very much appreciate the

          13     opportunity to make because it might thin out a little

          14     bit.

          15                       But if you notice however, our unit

          16     currently meets specs.  We can take a stretcher, we

          17     have enough air to change it out three times, and it

          18     does have doors that close on both sides.  So we've

          19     maintained some flexibility as this continues so that

          20     we can try to meet whatever needs are required.

          21                       MR. HENDREN:  When the unit went from

          22     four to sixteen in order to carry the stretcher, not

          23     only did you make the antechamber longer, you have got,

          24     of course, more air to change out, so the calculations

          25     moved all of the way around.  So it was a trickle-down

                                                                     116


           1     effect.

           2                       MR. GEVEDON:  Somebody had asked, if

           3     you would like to look at Page 162, I won't monopolize

           4     this, but when a question is asked and it can be

           5     answered -- I'll save you the time and trouble.  You

           6     can see it here.

           7                       We're looking basically at using as

           8     much graphic illustration as we can to show the

           9     systems.  So if I can minimize the language almost to

          10     nill I will.  So if you were a German visiting, a

          11     Japanese person visiting or something it would be that

          12     simple.

          13                       My end goal would be to have all

          14     systems in operation on this, and we got talked to

          15     about this pretty good by most of our consultants,

          16     simple enough in an emergency situation for anyone to

          17     try to understand.  So like I said, we will be making

          18     these systems as inherently simple as possible.  If you

          19     have to change a regulator or do this or do that,

          20     hanging next to it will be the card that shows you how

          21     to do this.  And if we have to put in some verbiage

          22     that's one thing, but like I said, I would like to see

          23     these systems simple enough that these people don't

          24     have to learn anything.

          25                       Now, that type of simplicity

                                                                     117


           1     hopefully would fall back under your training program

           2     where most people understand you pull the pin, point

           3     the fire extinguisher at the fire, and squeeze on the

           4     handle.  And you may not have done it but you have seen

           5     it done and it would function.  I would like to have

           6     the system that simple for purpose of doing it so you

           7     can't mess anything up.

           8                       MR. HENDREN:  And an example of this

           9     diagram versus being typed up.  I can take my glasses

          10     and read it typed up.  If I'm in an incident in the

          11     mine and break my glasses or lose my glasses, I can't

          12     read this.  But I can see the diagram on it.  So we're

          13     looking at all aspects of this.

          14                       MS. SILVEY:  Okay.  We appreciate

          15     very much the demonstration as well as, you know, your

          16     staying to answer any questions that we have.  A couple

          17     of questions, I think, we asked you if you would

          18     provide them to us before the record closes.  And if

          19     you think about anything else that you think will be

          20     useful in terms of some of the issues that were raised

          21     this morning and the things that we talked about.  And

          22     particularly, training or any of the ways the chamber

          23     was designed or anything like that, we would be very

          24     interested and appreciative of whatever information you

          25     might want to send.

                                                                     118


           1                       MR. HENDREN:  Thank you all so much

           2     for your time and for listening to us.

           3                       MR. GEVEDON:  Mr. Sherer, as we send

           4     this information, the format, the person, the

           5     website --

           6                       MS. SILVEY:  Just follow the

           7     directions in the proposed rule, please.

           8                       MR. GEVEDON:  All right.

           9                       MS. SILVEY:  Any one of the four

          10     formats listed in the proposed rule because that will

          11     efficiently get it to us and make it a part of the

          12     record.  And as I said earlier, all of the material

          13     then will be eventually put on -- will soon be put on

          14     our website.

          15                       MR. GEVEDON:  We've also, if you

          16     noticed, I don't want you to turn, but in the front of

          17     the book we used the approval application listing an as

          18     index.  As we send you those for clarity we'll try to

          19     refine it.  If you did have a question about something

          20     you were asking I believe this book was built as a

          21     communications document.

          22                       We can say, listen, on Page 132 we

          23     showed this but this is better or that's better.  So

          24     we'll try to be as specific as possible.  And in

          25     reviewing that you should be able to locate that

                                                                     119


           1     information very quickly for the purposes of

           2     understanding the specifics of what we're asking or

           3     what we're proposing.

           4                       MS. SILVEY:  Then let's get one thing

           5     very clear, so the document you gave us today you are

           6     submitting that to us today then?

           7                       MR. HENDREN:  We're submitting that

           8     document for information purposes.

           9                       MR. GEVEDON:  Only as a draft.

          10                       MR. HENDREN:  You will see draft on

          11     the front.

          12                       MS. SILVEY:  So you are not

          13     officially submitting that in the record?

          14                       MR. GEVEDON:  It's a communications

          15     document.

          16                       MR. HENDREN:  If there's a question a

          17     week from now you had about something that was said,

          18     you can turn and get our answers to those questions.

          19                       MR. GEVEDON:  And we were fortunate

          20     enough to go to the MSHA people, and we used this

          21     basically as a communications document so if we had a

          22     question or they had a question we could refer to the

          23     same information and be quote, unquote, on the same

          24     page.

          25                       So this is merely an information

                                                                     120


           1     document, but when we submit we'll try to refer it back

           2     to this section and this heading and keep it as concise

           3     as possible for clarity.

           4                       MR. HENDREN:  Thank you very much.

           5                       MS. SILVEY:  Okay.  Thank you.

           6                       MR. HENDREN:  Are we excused?

           7                       MS. SILVEY:  Yes.  Thank you.  At

           8     this time is there anybody else in the audience who

           9     wishes to make a comment, additional comment?  Anybody

          10     else?

          11                       If nobody else wishes to make a

          12     comment, then I want to say on behalf of MSHA that we

          13     appreciate your comment today.  For those who came and

          14     did not testify, we appreciate your attendance today

          15     because that showed that you had an interest in this

          16     rule making.

          17                       As I stated earlier we will take the

          18     comments and testimony and we will go back and try to

          19     develop the best and most appropriate final rule that

          20     we can.  For those of you who did state that you would

          21     send us additional comments, please try to do so before

          22     the record closes on August 18th.

          23                       Again, we appreciate everybody's

          24     attendance and this hearing is now concluded.

          25       (Whereupon, the hearing was concluded at 2:10 p.m.)

                                                                     121


           1     STATE OF KENTUCKY   )
                 COUNTY OF FAYETTE   )
           2

           3                   I, SUSAN R. ELSENSOHN, Certified Court

           4     Reporter and Notary Public, State of Kentucky at Large,

           5     certify that said testimony was taken down in stenotype

           6     by me and later reduced to typewriting, by computer,

           7     under my direction.

           8                   My commission expires:  September 5,

           9     2010.

          10                   In testimony whereof, I have hereunto set

          11     my hand and seal of office on this the       day

          12     of                 , 2008.

          13

          14
                                   SUSAN R. ELSENSOHN
          15                       Certified Court Reporter
                                   Certification No. 95010
          16                       Notary Public, State-at-Large

          17

          18

          19

          20

          21

          22

          23

          24

          25

                                                                     122