UNITED STATES DEPARTMENT OF LABOR
                      MINE SAFETY AND HEALTH ADMINISTRATION



In the Matter of:                      )
                                       )  
PROPOSED RULES ON HEALTH STANDARDS     )
FOR OCCUPATIONAL NOISE EXPOSURE        )














Pages:    1 through 187

Place:    Denver, Colorado

Date:     May 13, 1997
              UNITED STATES DEPARTMENT OF LABOR
            MINE SAFETY AND HEALTH ADMINISTRATION
     
     
     In the Matter of:                      )
                                            )  
     PROPOSED RULES ON HEALTH STANDARDS     )  
     FOR OCCUPATIONAL NOISE EXPOSURE        )
     
     
     
                                  Tuesday,
                                  May 13, 1997
     
                                  Mt. Evans Ballroom
                                  Four Points ITT Sheraton
                                  3535 Quebec Street
                                  Denver, Colorado
     
     
              The public meeting commenced, pursuant to notice,
     
     at 9:00 a.m.
     
     
              APPEARANCES:
     
              On behalf of the Mine Safety and Health           Administration:
     
              ROBERT A. THAXTON, MODERATOR
              Mine Safety and Health Administration
              Coal Mine Safety and Health
              4015 Wilson Boulevard, Suite 818
              Arlington, Virginia 22203
              (703) 235-1358
     
              MARVIN NICHOLS, JR.
              VICTORIA PILATE
              MICHAEL VALOSKI
              JAMES CUSTER
              JACK POWASNIK
              ROSLYN FONTAINE
     
                                 C O N T E N T S
     
     STATEMENT OF:                                      PAGE
     
     GARY E. MADSEN, DEPARTMENT OF SOCIOLOGY, SOCIAL WORK 15
     AND ANTHROPOLOGY, UTAH STATE UNIVERSITY
     
         ACCOMPANIED BY:
         SUSAN E. DAWSON, DEPARTMENT OF SOCIOLOGY, SOCIAL
         WORK AND ANTHROPOLOGY, UTAH STATE UNIVERSITY
     
     DAVID S. JAMES, M.D., DEPARTMENT OF INTERNAL MEDICINE, 21
     UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE
     
     JERRY POWERS, COLORADO MINING ASSOCIATION            32
     
     WAYNE JEFFERY, CHAIRMAN, SAFETY COMMITTEE, WYOMING   33
     MINING ASSOCIATION
     
     STEVEN LAIRD, MANAGER OF LOSS PREVENTION, BELAIR MINE44
     
     LINK DERICK, TECHNICAL SAFETY MANAGER,
     TWENTYMILE COAL COMPANY                              64
     
     JIM STEVENSON, INTERNATIONAL HEALTH AND SAFETY
     REPRESENTATIVE, UNITED MINE WORKERS OF AMERICA       95
     
     ROBERT A. DOBIE, CHAIRMAN, DEPARTMENT OF OTOLARYNGOLOGY,
     UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER           102
     
     DAVE HUTCHINSON,
     FMC/SOUTHWEST WYOMING SODA ASH PRODUCERS            124
     
     RANDY TATTON, INTERWEST MINING COMPANY              135
     
     GORDON BRANNON, BIG SKY COAL COMPANY                139
     
     BOB PAYOVICH                                        147
     
     MELINDA PON, BHP MINERALS                           148
                                                         171
     
     BERT WISNER, BHP MINERALS                           154
     
     LARRY JIM, BHP MINERALS                             165
     
     ROGER CONNETT, GLEN ROCK COAL COMPANY               176
                              P R O C E E D I N G S
              MR. NICHOLS:  Good morning, everybody.  Can you
     hear me in the back?  Can you hear okay?
              My name is Marvin Nichols.  I am the Administrator
     for Coal Mine Safety and Health.  Welcome to MSHA's public
     hearing on its proposed standards for noise exposure in coal
     and metal and non-metal mining.
              Let me introduce the rest of the panel.  On my far
     left is Jim Custer.  Jim is with Metal and Non-Metal in our
     headquarters office in Arlington, Virginia.  Michael Valoski
     is with the Office of Tech Support.  On the far end is
     Roslyn Fontaine.  She is with the Office of Standards,
     Regulations and Variances in MSHA headquarters.
              On her left is Jack Powasnik.  Jack, if you want
     to do a better pronunciation of that name, I would entertain
     it.  Jack is with the Office of the Solicitor.  Victoria
     Pilate, on his left, is also with the same office as Roslyn,
     the Office of Standards, Regulations and Variances in our
     headquarters office.
              To my right is Bob Thaxton.  Bob is with Coal Mine
     Safety and Health in our Arlington headquarters office, and
     Bob will be the moderator for the hearing today.
              We have one other person in the audience that I
     want to introduce, Andrea Hricko.  Andrea is the Deputy
     Assistant Secretary for MSHA.  It is good to have you here.
              We are here today to listen to your comments on
     the December 17, 1996, proposed rule revising certain
     portions of the existing health standards for noise exposure
     in coal and metal and non-metal mines.  The hearings are
     being held in accordance with Section 101 of the Federal
     Mine Safety and Health Act of 1977.  As is the practice of
     the agency, formal rules of evidence will not apply at this
     hearing.
              Let me give you some of the background on the
     proposed rule that we are here to talk about today.  MSHA
     published an advanced notice of proposed rule making on
     December 4, 1989, as part of the agency's ongoing review of
     its safety and health standards.  The agency's existing
     noise standards, which were promulgated more than 20 years
     ago, are inadequate to prevent the occurrence of
     occupational noise induced hearing loss among miners.
              In the advanced notice of proposed rule making,
     the agency solicited information for revision of the noise
     standards for coal and metal and non-metal mines.  The
     comment period closed on July 15, 1990.  
              On December 17, 1996, in response to information
     received on the advanced notice of proposed rule making,
     MSHA published the proposed standard.  The agency has
     developed a proposal that it estimates can reduce by 
     two-thirds the number of miners currently projected to
     suffer hearing loss, but which it estimates can be
     implemented at a cost of less than $9,000,000 to the mining
     industry as a whole.
              The focus of the proposed rule is on the use of
     the most effective means to control noise; engineering
     controls to eliminate the noise or administrative controls,
     for example, rotating miners' duties to minimize noise
     exposure whenever feasible.
              The proposed standard would retain the existing
     permissible exposure limit.  It would also establish a new
     action level of an eight hour time weighted average of 85
     dBa.  If a miner's exposure exceeds the permissible exposure
     limit, the proposal would require that the mine operator use
     feasible engineering and administrative controls to reduce
     the noise exposure to the permissible exposure limit.  
              If engineering and administrative controls do not
     reduce the miner's noise exposure to the permissible
     exposure limit, the operator must use those controls to
     lower exposure to as close to the permissible exposure limit
     is as feasibly achievable.  In addition, the operator would
     have to provide any exposed miner annual audiometric
     examinations, properly fitting hearing protection and insure
     that the miner take the annual audiometric examination and
     uses such protection.
              The comment period was extended from February 18,
     1997, to April 21, 1997, due to requests from the mining
     community.  MSHA received a broad range of comments from
     over 60 different interests, which include mine operators,
     industry trade associations, organized labor, colleges and
     universities and most equipment manufacturers.  The comments
     addressed the primary provisions of the proposed rule such
     as the action level, the permissible exposure limit, methods
     of compliance, the exposure monitoring and audiometric
     testing.
              Let me talk for a few minutes about the provisions
     of the proposed rule.  Exposure to noise is measured under
     proposed Section 62.120.  The proposed section would require
     that a miner's noise exposure not be adjusted for the use of
     hearing protectors, that a miner's noise exposure
     measurement integrate all sound levels from 80 dBa to at
     least 130 dBa during the miner's full work shift and that
     the current five dB exchange rate to measure the level of
     the miner's noise exposure would continue to be used.
              An action level of 85 dBa during any work shift or
     equivalently a dose of 50 percent would also be established
     under the proposed rule.  For miners who are exposed to the
     85 dBa action level, the proposed rule would not require the
     use of engineering and administrative controls.  Rather,
     operators would be required to provide personal hearing
     protection upon a miner's request, annual employee training
     and enrollment in a hearing conservation program.
              The proposed rule would also retain the existing
     permissible exposure limit of 90 dBa, requiring that no
     miner be exposed to noise exceeding a time weighted average
     of 90 dBa during any work shift or equivalently a dose of
     100 percent.
              While the permissible exposure limit would not
     change, the actions required nor the exposure exceeds
     permissible exposure limit are different from the current
     requirements.  MSHA's existing metal and non-metal noise
     standards, for example, already require the use of feasible
     engineering or administrative controls when a miner's noise
     exposure exceeds the permissible exposure limit.  
              The existing standards, however, do not require
     the mine operator to post the procedures for any
     administrative controls used or to conduct specific training
     or to enroll miners in a hearing conservation program. 
     Under MSHA's current coal mining standard, a citation is not
     issued when a miner's exposure exceeds the permissible
     exposure limit if appropriate hearing protection is being
     used by the miners.  
              In the event of a violation of the coal mining
     standard, operators are required to promptly institute
     engineering and/or administrative controls and to submit to
     MSHA a plan for the administration of a continuing effective
     hearing conservation program.
              The proposed rule would establish a hierarchy of
     controls for all miners when exposure exceeds the
     permissible exposure limit.  In addition, other aspects of
     the rule increase protection to miners and further reduce
     the potential for hearing loss.  
              Under the proposal, mine operators must first
     utilize all feasible engineering and administrative controls
     to reduce sound levels to the permissible exposure limit
     before relying on other controls to protect against hearing
     loss.  Furthermore, an operator would be required to insure
     that miners whose exposure exceeds the permissible exposure
     limit take the hearing examination offered through
     enrollment in a hearing conservation program.
              Under proposed Section 62.120(f), MSHA would
     require operators to establish a system of monitoring which
     effectively evaluates each miner's noise exposure.  The
     proposal would also require that within 15 calendar days of
     determining that a miner's exposure exceeded the action
     level, the permissible exposure level, the dual hearing
     protection level or the ceiling level, the mine operator
     must notify the miner in writing of the overexposure and the
     corrective action being taken pursuant to Section 103 of the
     Mine Act.
              The proposed rule also provides for hearing
     protection and training.  Under proposed Section 62.125,
     miners would be given a choice from at least one muff type
     and plug type hearing protector.  Under Section 62.130,
     miners would be given the required training.
              Additionally, under proposed Section 62.140,
     operators would be required to offer baseline audiograms to
     miners enrolled in a hearing conservation program; that is,
     when a miner's exposure exceeds the action level.  Prior to
     conducting the baseline audiogram, operators would be
     required to make certain that miners have at least a 14 hour
     period where they are not exposed to workplace noise.  Use
     of hearing protectors as a substitute for this quiet period
     would be prohibited.
              The proposed rule would also require mine
     operators to offer a valid audiogram at intervals not
     exceeding 12 months for as long as the miner remains in the
     hearing conservation program.
              Proposed Section 62.150 would require the operator
     to assure that all audiometric testing is conducted in
     accordance with scientifically validated procedures.  MSHA
     would also require that audiometric test records be
     maintained at the mine site for the duration of the affected
     miner's employment plus at least six months thereafter.
              Under proposed Section 62.160, operators would
     have 30 days in which to obtain audiometric test results and
     interpretations.  Additionally, under proposed Section
     62.180, MSHA would require, with limited exceptions, that
     within 30 calendar days of receiving evidence of a standard
     threshold shift, the operator must do the following:  
              One, retrain the miner; two, allow the miner to
     select a hearing protector or to choose a different hearing
     protector if the miner has previously selected one; three,
     review the effectiveness of any engineering and
     administrative controls to identify and correct any
     deficiencies.
              Proposed Section 62.190 would require that within
     ten working days of receiving the results of an audiogram or
     receiving the results of a follow up evaluation, the
     operator notify the miner in writing of the results and
     interpretation of the audiometric test, including:  One, any
     finding of a standard threshold shift or reportable hearing
     loss; and, two, if applicable, the need and reasons for any
     further testing or evaluation.
              Finally, the proposed rule would require that the
     operator provide the miner, upon termination of employment,
     with a copy of all records that the operator was required to
     maintain under this part without cost to the miner.
              This is the third of six hearings.  We will also
     receive comment and testimony on the proposed rule in Las
     Vegas, Nevada, on May 15, in Atlanta, Georgia, on May 28,
     and in Washington, D.C., on May 30.  The hearings will all
     begin at 9:00 a.m. and end at 5:00 p.m., but, if necessary,
     MSHA will continue the hearings into the evening hours.  In
     other words, we will stay as long as we have people wanting
     to testify.
              A verbatim transcript of this hearing is being
     taken.  It will be made an official part of the rule making
     record.  Hearing transcripts, along with all the comments
     that MSHA has received to date on the proposed rule, will be
     available for review by the public.  If you wish a personal
     copy of the hearing transcript, however, you can make your
     own arrangements with the court reporter.
              I am now going to turn the hearing over to Bob
     Thaxton, who will be the moderator for the rest of the day.
              MR. THAXTON:  Good morning.  As Marvin said, my
     name is Bob Thaxton, and I will be the moderator for today's
     hearing.
              For those of you that came in a little late, I
     would like to restate that there is a sign up sheet on the
     front table just as you come inside the door.  If you have
     not had a chance to sign that, during one of the breaks that
     we take today we would appreciate it, please, if you would
     just sign that sheet indicating your presence.
              MSHA views these rule making activities as
     extremely important.  We realize that by your presence here
     that you also place an importance on this rule making
     activity.  To insure that an adequate record is made during
     this proceeding, we ask that when you come forward to do
     your testimony that you approach the podium, state your
     name, spell your name and state the organization which you
     represent.
              The order of presentation for the public
     statements will be in the order in which we received
     requests.  The order today is as follows:  Patrick James;
     Gary Madsen; Susan Dawson; David James; Stuart Sanderson;
     Wayne Jeffery; Steve Laird; Link Derick; Robert Dobie; Dave
     Hutchinson; United Mine Workers of America represented by
     Nick Ortega, Rick Snyder, Forrest Addison and Jim Stevenson;
     Randy Tatton; Gordon Brannon; Bob Payovich; Melinda Pon and
     company; and Roger Connett.
              It is MSHA's intent that all persons that wish to
     make public statements will get the opportunity during this
     hearing.  Anyone who has not previously requested to speak
     should indicate their intention to do so by coming forward
     and signing the sheet for speakers that will be located at
     my far right with Ros.  Time will be allowed at the end of
     the hearing for anybody else that signs up.  You will get an
     opportunity to speak.
              The Chair will also attempt to recognize all
     speakers in the order in which they requested to speak.  If
     necessary, though, we reserve the right to modify the order
     of presentation in the interest of fairness.  Also, as
     moderator, I may exercise discretion to exclude irrelevant
     or unduly repetitious material.  In order to clarify certain
     points, the panel may ask questions.
              MSHA will accept written comment and other
     appropriate data on the proposed rule from any interested
     party, including those who will not make oral presentations. 
     Written comments may be submitted to Roslyn Fontaine during
     this hearing or sent to Pat Sylvia, Director of MSHA's
     Office of Standards at the address listed in the hearing
     notice.
              All comments are important to the agency.  Should
     anyone desire to modify their comments or submit additional
     comments following the hearing, the record will remain open
     until June 20, 1997.  If possible, the agency would request
     that you forward your comments and provide us with a copy on
     disk.  
              The comments are essential in helping MSHA develop
     the most appropriate rule that will improve the health of
     our nation's miners.  MSHA has received extensive comments
     on this proposed rule.  We appreciate the constructive
     criticism and the hard work and careful thought which your
     comments represent.  
              On behalf of Assistant Secretary David McAteer and
     MSHA, I would like to take this opportunity to express our
     appreciation to each of you for your being here today and
     for your input.  We look forward to your continued
     participation in this rule making activity.
              Before we begin with the first speaker, I would
     like to remind you again that we would like you to sign the
     attendance sheet and if you are wishing to speak and are not
     currently listed on the speakers' list that you come forward
     and sign the sheet with Ms. Fontaine.
              Finally, again I would like to remind everyone
     that when you come to the podium please state your name,
     spell your name and state the organization which you
     represent.  If you have copies of your prepared statement at
     the time that you come forward to make your testimony,
     please present them to the panel at that time.
              With that, we would like to begin this morning's
     hearing with the first speaker.  That would be Patrick
     James.
              MR. JAMES:  I am Pat James.  I am going to pass
     right now to the next speaker.
              MR. THAXTON:  Gary Madsen?
     
     
     
          STATEMENT OF GARY E. MADSEN, DEPARTMENT OF SOCIOLOGY,
     SOCIAL WORK AND ANTHROPOLOGY, UTAH STATE UNIVERSITY
     
              MR. MADSEN:  I will have to get this focused for
     my bifocals here.  
              Members of the committee, it is an honor to be
     with you today to present findings from our recent research
     with western coal miners.  Our names are Gary Madsen, 
     G-A-R-Y, M-A-D-S-E-N, Susan Dawn, S-U-S-A-N, D-A-W-S-O-N,
     and David James, D-A-V-I-D, J-A-M-E-S.  Dr. Dawson and I are
     professors at Utah State University.  Dr. James is a
     pulmonary physician and on the faculty of the University of
     New Mexico School of Medicine, and Curtis Hunt is a
     statistician at the University of New Mexico School of
     Medicine.
              We would like to identify the study in terms of
     the sample and the method for gathering the data for this
     particular study.  In the fall of 1995, we conducted a
     randomly selected sample of 102 current and former male coal
     miners who were residing in the communities of Raton, New
     Mexico, and Trinidad, Colorado.  The respondents ranged in
     age from 31 to 92 with a mean of 56.  The mean number of
     years mined was 17.
              Ninety-seven coal miners worked underground with a
     mean of 12 years, 43 worked above ground in an underground
     operation with a mean of eight years, and 29 worked on the
     surface with a mean of nine years.  Thirty-one worked all or
     most of their mining careers before 1970, 29 worked all or
     most of the time from 1970 or later but were not currently
     mining, and 42 were current miners who had worked all or
     most of the time from 1970 on.
              In person interviews contained questions about
     mine related injuries and illnesses, including hearing
     impairment and the use of hearing personal protective
     equipment.  All of the data were self-reported based upon
     the perceptions and knowledge of the respondents.
              In terms of the findings, almost 60 percent of the
     respondents reported suffering from hearing impairment,
     which is identified in Chart 1.
              (Overhead shown.)
              Furthermore, the highest reported prevalence was
     found among the pre-1970 miners, approximately 80 percent,
     compared with about half of the 1970 or later non-working
     and working miners.  The differences between the earlier
     working subgroup and the later ones were statistically 
     significant using the Pearson chi square statistic.  
              One might expect a higher prevalence among the
     pre-1970 subgroup.  Their mean age was 74, as compared with
     52 for the non-working and 46 for the current working 1970
     or later subgroups.  While the earlier working group was
     employed prior to the creation of MSHA, the latter two
     subgroups worked primarily under the MSHA noise regulations
     which are currently in effect.  Certainly this is about 50
     percent in terms of the prevalence of hearing impairment.
              The National Center for Health Statistics conducts
     annual interviews with a large representative sample of the
     U.S. population.  Included in this survey are percentages of
     those reporting hearing impairment.  The national data are
     reported for three age categories for males:  Under 45
     years, 45 through 64, and 65 and older.  The coal miner
     sample allowed for direct comparisons with the latter two
     age categories.  This is presented in Chart 2.
              (Overhead shown.)
              We did not compare the 45 years and under because
     our youngest person was 31.  When you go back to childhood,
     there is not much of a comparison there, so we compared the
     latter two subgroups.
              The coal miner sample, in allowing for the
     comparison, will view the two older subgroups.  The 45
     through 64 year aged miners reported hearing impairment
     three times the percentage of the national sample.  The 65
     years of age and older miners reported twice the percentage
     of the national sample.
              Of the 60 respondents who identified hearing
     impairment, 28 or 46.7 percent attributed hearing problems
     to noisy mine machinery and blasting.  Furthermore, nine or
     29 percent of the miners from the pre-1970 subgroup, six or
     27.7 percent of the 1970 or later non-working miners, and 13
     or 31 percent of the 1970 or later current miners attributed
     their hearing problems to mining.  The subgroup differences
     were not statistically significant using the Pearson chi
     square test.  
              The following are examples of respondents'
     perceptions of noise:  "I was a roof bolter for five years. 
     That's where my hearing went."  "It's really noisy with the
     fans used for ventilation.  It sounds like an airport." 
     "The noise from the machinery is constant.  It leaves your
     ears ringing.  High pitch and constant hum.  Dragline house
     is noisy.  Shovel was real loud."  "I was a prep plant
     operator for about ten years.  It was noisy in the plant."
              "When I was underground, the noise from machinery
     caused my ears to ring for a long time after work." 
     "Everything I worked with was noisy.  Even in the mine, the
     mine cars were noisy."  Another commented, "Real noisy in
     the mine.  You could hear it for a mile in there."
              Furthermore, several miners described their
     hearing impairment.  Typical examples included the
     following:  "I notice the hearing loss the most.  It bothers
     my wife the most."  "I can't separate voices in a group. 
     Can't hear the secretary at work very well because she
     speaks in low tones."  "People complain that I can't hear
     them."  "I have a lot of problems understanding people." 
     These were typical comments that we identified.
              Respondents were asked if they used hearing
     protective devices, that is earplugs or earmuffs or both. 
     The possible responses were never used, used part of the
     time, used most of the time, or always used.  Only five
     respondents answered always.  Consequently, most of the time
     and always were combined.  In Chart 3, we present the
     results of the use of hearing protective devices.
              (Overhead shown.)
              What is striking about the results relates to
     results of ever having used any hearing protection.  Among
     the pre-1970 subgroup, only one miner reported having worn
     any hearing protection at all.  It was only among those
     mining post 1970 that ear protection was used with any
     regularity, with the highest levels among those who were
     currently employed.  The differences in subgroup use were
     highly statistically significant using the chi square test.
              It is noteworthy that among the currently working
     miners, half reported hearing loss, and almost one-third
     felt the loss was attributed to their mine work.
              Our recommendation.  The results of this study are
     generalizable to the Raton, New Mexico, and Trinidad,
     Colorado, coal miner population.  However, there is no
     reason to assume that they would not be applicable to the
     entire U.S. coal mining population since the mechanization
     of mining is system wide.  Therefore, this research
     indicates a need to further reduce the risks of developing
     hearing impairment among coal miners.
              Thank you.
              MR. THAXTON:  Ms. Dawson, are you talking next?
              MS. DAWSON:  No.  Dr. James will.
              MR. THAXTON:  Is it possible to get copies of your
     slides that you were using?
              MS. DAWSON:  Yes.
              MR. THAXTON:  Thank you.
              MS. DAWSON:  How many copies?
              MR. THAXTON:  Just one.
              MR. THAXTON:  Dr. James?
     
     
     
     
     
     
     
     
     
          STATEMENT OF DAVID E. JAMES, M.D., DEPARTMENT OF INTERNAL
     MEDICINE, UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE
     
              DR. JAMES:  Good morning.  I am David James, 
     J-A-M-E-S.  I am with the University of New Mexico in
     Albuquerque.  The work I am going to be presenting here is
     some results of an ongoing screening program of miners in
     New Mexico, as well as coal miners from southern Colorado. 
     I am also on the staff at the Miners' Colfax Medical Center
     where this work originates from.  
              The funding for the study is from the Miners'
     Colfax Medical Center in Raton, New Mexico, as well as a
     federal Black Lung grant from the Health and Human Services. 
     The title of the work is Hearing Loss in Miners from the
     Southwestern United States.
              Since 1987, miners from New Mexico and southern
     Colorado have been screened through the Miners' Outreach
     Screening program with the Miners' Colfax Medical Center. 
     This is a voluntary screening program which takes place in
     the local communities of the miner on a mobile facility and
     is offered at no charge.
              The screening protocol consists of an in depth
     respiratory health and mining work history questionnaire, a
     chest x-ray, spirometry and pure tone audiometry. 
     Audiometry is performed in a sound booth using a pure tone
     audiometer at frequencies from 500 up to 8,000 Hz.  Testing
     is performed by a technician who is accredited by the
     Council for Accreditation in Occupational Hearing
     Conservation.  Otoscopic examination of the external ear is
     not routinely performed as part of our screening protocol.
              For the analysis of the audiometric data, results
     are presented from the best ear.  Results are not included
     if there was testing for whatever reason in only one ear or
     if the subject reported a recent head cold, ear drainage or
     had been around loud noises in the prior 14 hours.  
              Miners with low frequency hearing loss defined
     here as a hearing threshold of greater than 25 dB at
     frequencies of 500 Hz and 1,000 Hz were excluded for this
     analysis.  High frequency hearing loss was defined as a
     hearing threshold of greater than 25 dB at frequencies of
     4,000 Hz and 6,000 Hz.
              To control for several factors at a time which may
     result in high frequency hearing loss, logistic regression
     modeling was used.  In this technique, results are presented
     as odds ratios which express the likelihood of high
     frequency induced hearing loss compared to the control.  
              An odds ratio or OR of greater than one indicates
     increased risk of high frequency hearing loss from that
     factor when you compare it to the control group.  An odds
     ratio of less than one indicates that there is less risk of
     high frequency hearing loss when compared to the control.  
              The statistical significance for each estimate is
     given by 95 percent confident intervals.  If a confidence
     interval includes one, then the results would not meet other
     tests of statistical significance.
              The results.  A total of 1,364 miners had
     acceptable audiometry results.  The demographics of the
     miners are given in Table 1 and are shown on the overhead.
              (Overhead shown.)
              It is primarily a male population.  The ethnicity
     varied quite a bit with a large population of not only a
     Hispanic white population, but non-Hispanic whites and
     Native Americans.  The mean age of the miners was 56 years
     of age.  Self-reported hearing loss occurred in 48 percent
     of all miners, and 52 percent reported working in other
     noisy occupations or industries other than mining.  The
     majority of miners were retired, 70 percent.  
              The predominant type of mining, location of mining
     and years of mining are given in Table 2 on the second
     overhead.
              (Overhead shown.)
              The predominant type of mining performed was in
     uranium mining.  The predominant type of mining as well as
     predominate mining location were determined by the maximum
     number of years that a miner may have worked in any one
     location or type of mining.  
              Miners frequently worked in different types of
     mines.  For example, 18 percent of miners who worked
     predominantly in coal mines also worked in non-metal mines,
     and 17 percent of miners who worked predominantly in metal
     mines also worked in uranium mines.  As a whole, miners did
     different types of mining work.  The predominant location of
     mining was in underground operations.  The mean years of
     mining was 17 years.
              (Overhead shown.)
              In the next figure, the mean hearing thresholds at
     frequencies from 500 to 8,000 Hz by age group for all miners
     is shown.  The increasing hearing thresholds at higher
     frequencies in the older age groups is well observed here. 
     On the Y axis we have decibels starting at the top from zero
     on down to 100 dB.  On the X axis starting at the left-hand
     part of the screen 500 Hz going out to 8,000 Hz on the
     right-hand side broken down again by age group.
              Using logistic regression, there was no
     statistically significant difference in the odds ratios for
     the development of high frequency hearing loss in different
     ethnic groups or between active or retired miners.  Miners
     reporting work in the other noisy industries or occupations
     were 36 percent more likely to develop high frequency
     hearing loss than miners without this factor.
              (Overhead shown.)
              In Table 3, the results of logistic regression
     modeling are given for the variables of predominant mining
     type, predominant mining location and years of mining.
              Although the prevalence of high frequency hearing
     loss was high in miners who performed different types of
     mining, there the first column of numbers is the percent of
     miners who mined predominantly coal, uranium, metal or 
     non-metal, the percent of miners with high frequency hearing
     loss.  That ranges from 68 percent up to 75 percent.  Even
     though the prevalence was high, there was no difference
     between the groups in terms of the occurrence of high
     frequency hearing loss.
              Underground miners were more likely to have high
     frequency hearing loss than miners who worked predominantly
     above ground or at open pit or surface mines.  For example,
     above ground miners were 39 percent less likely to have high
     frequency hearing loss than underground miners.  
              The longer a miner worked, and this is the last
     set of rows there, Years of Mining, the more likely he was
     to develop high frequency hearing loss.  A miner with more
     than 20 years of mining experience was 231 percent more
     likely to have developed high frequency hearing loss than
     miners with less than ten years of experience.  That is
     shown on Table 3 and on the overhead in that last row, Years
     of Mining, greater than 20 years.  
              Eighty-nine percent of miners had high frequency
     hearing loss if they worked more than 20 years, and that
     worked out to this odds ratio, looking at the overall risk,
     of 3.31, which is highly significant.
              Conclusion.  In this voluntary sample of
     predominantly retired miners from southern Colorado and New
     Mexico, high frequency hearing loss was common and occurred
     most frequently in miners who were older, had more years of
     mining and who worked underground.  
              In the current analysis, we did not attempt to
     determine how much of the miners' high frequency hearing
     loss was due to age related changes or presbycusis and how
     much was due to noise induced damage from mining or other
     work in other industries.
              All the figures and tables are included in the
     handout.
              MS. PILATE:  I have some questions.
              DR. JAMES:  Sure.
              MS. PILATE:  You stated in the study that you had
     1,364 miners who took the audiometric test.  Were there any
     that refused to take the exam?
              DR. JAMES:  We don't have that information. 
     Again, this is a summary of all individuals who were tested,
     but we do not have a refusal rate.  
              I could say, though, that that rate is very low
     since this is a voluntary program, but I do not have the
     exact -- that information just is not available.
              MR. NICHOLS:  How long do you estimate that it
     took to give an audiometric exam?
              DR. JAMES:  In our protocol as outlined here, the
     one person who does the majority of the testing, it takes
     him about 15 minutes.
              MS. PILATE:  Thank you.
              MR. THAXTON:  Any other questions?
              VOICE 1:  Do you have a percentage of the total
     mining population versus your sample?
              MR. THAXTON:  I am sorry.  Excuse me, sir.  You
     need to direct questions to the panel, not to individual
     speakers.  If you have comments or concerns about the
     individual speakers' material, that is what the record is
     held open until June 20 for.
              MR. CUSTER:  Dr. James, is there a reason that you
     did not make presbycusis loss adjustments from standard
     tables?
              DR. JAMES:  Partly, yes.  Partly we wanted to just
     present the raw data.  
              At least in my understanding of the literature,
     there is still some debate as to how best to do that.  We
     are working on that.  I think eventually we will attempt to
     submit this material for publication, and we would try to
     include some of the age corrections that have been used in
     the literature.  
              The main reason is, at least in my mind, there is
     still some debate how best to do that, so we did not do it.
              MR. CUSTER:  Thank you.
              MR. THAXTON:  Dr. James, on Page 2 of your report
     in the first paragraph under Results --
              DR. JAMES:  Yes.
              MR. THAXTON:  -- you state that self-reporting
     hearing loss occurred in 48 percent of miners, and 52
     percent reported working in other noisy occupations or
     industries.
              DR. JAMES:  Right.
              MR. THAXTON:  The 52 percent that reported working
     in other industries, is that 52 percent of the 48 percent
     that reported hearing loss?
              DR. JAMES:  No.  That 52 percent is the entire
     sample of 1,364.
              MR. THAXTON:  Thank you.
              Any other questions?
              MR. VALOSKI:  I have questions for both Dr. James
     and Dr. Madsen.
              You said underground coal mining.  What type of
     underground coal mining?  Was it long wall?  Conventional? 
     Continuous?  Do you have that data?
              DR. JAMES:  We do have that data to an extent.  We
     have some information on what the main occupation that the
     miner would report, but we do not specifically ask them how
     much time they may have spent on different main areas in the
     mine, so we have limited data on that.
              I have not done this analysis looking at changes
     in audiometric results based on more specific mine site
     location of work.
              MR. VALOSKI:  Do you record the occupation of the
     miner or just coal miners in general?  In other words, a
     roof bolter versus a continuous miner operator.
              MS. DAWSON:  We do have that for the 102 miners. 
     Would you like me to read that to you?
              MR. VALOSKI:  Yes, please.
              MS. DAWSON:  The job categories?
              MR. VALOSKI:  Yes.
              MS. DAWSON:  Under roof bolter/timber man, there
     were 32 miners, and that is 31.4 percent of the 102.  Under
     laborer/pick and shovel category, there were 26 miners. 
     That is 25.5 percent.  Under mechanic/equipment maintenance
     --
              Excuse me.  What we could do is send you a copy of
     this paper if that would help.
              MR. VALOSKI:  Yes, it would.
              MS. DAWSON:  Under mechanic/equipment maintenance,
     there were 24 miners.  This is 23.5 percent.  Under
     continuous miner/coal cutter category, there were 22 miners. 
     That is 21.6 percent.  Under foreman/supervisor, 19 miners,
     18.6 percent.  Under long wall operator category, there were
     18 miners at 17.6 percent.  Under conveyance operator, 17
     miners, 16.7 percent.  
              Those categories represent probably the largest
     number of workers associated with those particular
     occupations.
              MR. VALOSKI:  Thank you very much.
              MS. DAWSON:  You're welcome.
              MR. MADSEN:  They are not mutually exclusive
     either.
              MS. DAWSON:  Right.
              MR. MADSEN:  Also in the end of our presentation,
     the first publication that is identified is being published
     this year.  That will include all of this.  It has been
     accepted for the journal Society and Natural Resources. 
     Included in that are the data that she presented, so there
     will be two sources to identify that.
              MR. THAXTON:  Excuse me, Dr. Madsen.  Could you
     come to the podium when you are making statements, please?
              MR. MADSEN:  A breakdown of the occupational
     categories for the miners for the 102 randomly selected
     sample that we received from Trinidad, Colorado, and Raton,
     New Mexico, will be published in the journal Society and
     Natural Resources under the title Working Environment and
     Respiratory Health: A Case Study of Western Coal Miners.
              The material that we presented today, with some
     other materials concerning arthritis and other areas that
     look at general health, is under review by the same journal. 
     It is also listed.  Hopefully it will be published this
     year.
              MR. THAXTON:  Thank you.
              Our next speaker is Stuart Sanderson.
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF JERRY POWERS, COLORADO MINING ASSOCIATION
     
              MR. POWERS:  I am not Stuart Sanderson, but I am
     Jerry Powers, and I represent the Colorado Mining
     Association in Mr. Sanderson's absence.  He apologizes for
     not being able to be here today, but he is involved in other
     hearings.
              The Colorado Mining Association, of course, is an
     industry association that represents both large and small
     operators in the State of Colorado and throughout the west. 
     Many of these companies are represented here today or will
     be represented at other hearings and will present testimony
     at the other public hearings.
              Because of Mr. Sanderson's absence, we will only
     file additional comments following these hearings.  We did
     file comments on April 7, 1997, which we would like to have
     incorporated into the testimony.
              As such, that is all I have to say.
              MR. THAXTON:  The next speaker is Wayne Jeffery.
     
     
     
     
     
          STATEMENT OF WAYNE JEFFERY, CHAIRMAN, SAFETY COMMITTEE,
     WYOMING MINING ASSOCIATION
     
              MR. JEFFERY:  My name is Wayne Jeffery, 
     J-E-F-F-E-R-Y.  I am chairman of the WMA Safety Committee,
     and I am presenting these comments on behalf of the Wyoming
     Mining Association.
              The Wyoming Mining Association is an industrial
     association that represents bentonite, coal and uranium
     mining associates throughout Wyoming.  Wyoming leads the
     nation in production of bentonite, coal, soda ash and
     uranium.  
              We are proud of the fact that our members have
     some of the safest mines in the country.  The Wyoming Mining
     Association supports MSHA in its efforts to provide a safe
     and healthy working environment for all miners.  
              While the members of the WMA agree with the need
     to prevent hearing loss to miners, we disagree with MSHA's
     position that there is a need to change current regulations. 
     These current regulations are more than adequate to minimize
     hearing loss.  However, MSHA has not enforced them
     effectively.
              The issuance of new regulations under Part 62 will
     only put additional burden on those operators who are
     presently complying with MSHA.  To illustrate this point,
     the mines in the Powder River Basin have conducted
     audiometric testing for their employees, and there has never
     been one case of a 25 dBa shift in over 4,000 audiometric
     examinations.  In addition, there have only been two cases
     of a ten dBa shift that might be constructed as occupational
     hearing loss.  One of these individuals is also an avid
     shooter, and the other is a snowmobile racer.
              We are concerned that the equipment that enhances
     safety of employees in our operations, for example, two way
     radios, AM-FM radios, will become a casualty in the pursuit
     of compliance with regulations.  MSHA needs to address
     whether or not these noise regulations shall have a priority
     over other safety communications and warning devices.  
              This same scenario would also apply to mine radios
     used for two way communication, particularly the AM-FM
     radios that are placed in the operator's cab to help them
     overcome monotony and drowsiness which could lead in an
     accident.
              We do not believe that MSHA in these new proposed
     regulations has allowed for the advancement of new
     technology in the area of noise reduction.  An example of
     technology showing potential that clearly would not fit
     these regulations is the application of active noise
     cancellation technology and personal hearing protection. 
     This technology does not necessarily lower noise levels, but
     it attenuates noise by generating a wave canceling mirror
     image.  This is just one example.  
              If these regulations are to be meaningful and
     exist for another 20 years, they must be written in such a
     way as to allow for the utilization of the best and most
     current technology whether it is classified as personal
     protection or administrative or engineering controls.
              Since MSHA has published the proposed rules and is
     seeking comments, the following is the position of the
     Wyoming Mining Association on some of these areas:
              First of all, MSHA has indicated that the new
     proposal will save coal companies over $3,000,000 or
     $3,500,000.  We strongly disagree with MSHA's assessment of
     savings.  
              In order to comply with this proposed 62.120, the
     operator has to continue to conduct noise surveys at the
     same level.  The proposed regulations will require surface
     operators to implement hearing conservation programs for a
     large segment of our work force, along with extended record
     keeping.  
              We do not feel that MSHA has adequately calculated
     the potential cost of engineering and administrative
     controls should these proposed regulations become law if
     operators are expected to reduce noise levels to the lowest
     possible level.  Therefore, we ask MSHA to reassess the cost
     of the proposed regulations on the industry to realistically
     portray the cost to our industry.
              MSHA has indicated that there will be a savings of
     88,740 paperwork hours in coal as a result of these proposed
     regulations.  We disagree.  We feel that the paperwork
     necessary to meet all aspects of the proposed regulations
     will actually increase.
              While it is true that MSHA does not require the
     maintenance records in the proposed regulations, in reality
     records will have to be maintained on all surveys, training,
     audiometric testing, administrative and engineering controls
     to prove compliance under the proposed regulations. 
     Therefore, we believe that MSHA has significantly
     understated the time required to comply with the proposed
     regulations.
              MSHA has indicated that it is committed to
     publishing a compliance guide prior to the effective date of
     the regulations.  We would request that all aspects of 
     compliance be contained in the regulations rather than
     relying on MSHA policy to determine how operators are to
     comply with the regulations.  
              If MSHA insists on publishing a compliance guide
     outside the rule making process, then we believe that it
     should at the very least be available for review prior to
     the closing of the comments to allow operators to better
     understand MSHA's position.
              Too often operators have been surprised by MSHA's
     interpretation of a regulation which resulted in lengthy and
     costly litigation to clarify issues.  Therefore, we request
     that the comment period on the regulations remain open until
     such time as the compliance guide is published.
              In the supplemental information, MSHA has
     requested comments on how to minimize the burden on mine
     operators to provide audiometric examinations for those
     miners with only a temporary attachment to the mining work
     force.  
              Applying the proposed regulations to temporary
     miners, especially at service mines who utilize a high
     number of specialty contractors to perform certain jobs on
     the mine site, will be a significant problem if MSHA does
     not allow for the usage of hearing protection as a method of
     preventing hearing loss while they are working on mine
     property. 
              Some major construction projects require the
     presence of construction personnel for several months. 
     Because contractor employees will work on and off mine
     property, the mine operator cannot be held responsible for
     any hearing loss that occurs off the mine property.  
              Unless MSHA provides the operator with the ability
     to rely on hearing protection, the operator may be forced to
     conduct a baseline audiogram each time a contractor employee
     comes to work on the mine property and again each time a
     contractor employee completes a job.  We believe that MSHA
     should allow a minimum of six months continuous work on a
     mine before audiometric testing would be required.
              The proposed rules require that no miner be
     exposed at any time to a sound level exceeding 115 dBa. 
     There are times just by the nature of the work where miners
     will be exposed to noise levels exceeding 115 dBa for
     instantaneous periods of time; for example, a door slamming,
     a piece of steel dropping on concrete, an engine or starter
     pressure relief valve.  Another example is with regard to
     blasting warning sirens, ambulances, emergency equipment, a
     pressure relief valve popping off.
              Because this noise is infrequent and unpredictable
     as to occurrence, the only realistic means of preventing
     exposure is with personal hearing protection.  We believe
     that MSHA should take this into consideration and allow for
     higher levels of noise exposure up to a maximum of 140 for
     short durations or instantaneous exposure with hearing
     protection.
              The proposed rules require that the primary means
     of preventing hearing loss should be all feasible
     engineering and administrative controls.  We would request
     that this be changed to establish that the primary means of
     preventing hearing loss should be based on what is the most
     effective and technologically feasible for a given
     application between personal protective equipment,
     engineering or administrative controls.
              MSHA defines hearing protection as any device that
     has a scientifically accepted indicator of noise reduction. 
     If MSHA by its definition requires that hearing protection
     have a scientifically accepted indicator of noise reduction,
     we believe that MSHA should recognize that scientifically
     accepted value for calculations of noise reduction.
              Section 62.123(i) should be changed to read
     adjusted to account for the use of hearing protection.
              In conclusion, as we stated earlier, the members
     of the Wyoming Mining Association do support MSHA in its
     efforts to provide a safe and healthy work environment for
     all miners.  We do, however, take strong exception to the
     regulations as proposed.  
              We believe these regulations as proposed will not
     positively impact reduction in hearing loss and may at times
     expose our miners to higher noise levels.  We believe these
     regulations will have a negative impact on safety and the
     quality of work for many of our miners.
              It is clear that there will be an increased cost
     to operators.  It is also clear that these regulations do
     not allow for advances in personal protection technology. 
              Last, but not least, we request that the comment
     period remain open until the compliance guide has been
     published and the industry has had a chance to consider it
     in their comments.
              We thank you for this opportunity to comment.
              MS. PILATE:  I have some questions.  You spoke of
     the engineering control costs being underestimated.  Can you
     elaborate on that?
              MR. JEFFERY:  The engineering costs being
     underestimated?  Well, it depends on what definition
     ultimately comes out under the area of feasible and what
     MSHA considers to be feasible.
              There have been stories out there particularly in
     the metal area where there has been over $100,000 spent to
     try to reduce the noise level by three dBa on a continuous
     miner.  
              I guess really it depends a lot on what you
     determine as being feasible.  If money is no object, I think
     you have underestimated the cost.
              MR. VALOSKI:  Do you have a specific example where
     somebody requested $100,000 be spent on a continuous miner?
              MR. JEFFERY:  Yes.  It was one up there in
     Wyoming.
              MR. VALOSKI:  Could you provide us with the
     report?
              MR. JEFFERY:  Yes.  I can get that information.
              MR. VALOSKI:  I would like to ask a couple
     questions on the 4,000 audiometric exams in the Powder River
     Basin.
              MR. JEFFERY:  Right.
              MR. VALOSKI:  Were they on 4,000 miners?
              MR. JEFFERY:  No, no, no.  This is over the 20
     years in operation up there.  
              Some of the mines have a hearing conservation
     program.  Not all do.  During that period of time, we just
     totaled them up.  There were over 4,000 audiometric exams
     conducted.
              MR. THAXTON:  Is it possible to get copies of that
     data?
              MR. JEFFERY:  I will go back to the member
     companies and ask for it.
              MR. THAXTON:  It could be summary data.  We do not
     want to know the names of the people.
              MR. JEFFERY:  Oh, no.  
              MR. THAXTON:  Something similar to what Dr. James
     and Dr. Dawson and Dr. Madsen presented.
              MR. JEFFERY:  One of the things I think MSHA has
     to keep in mind, at least in surface mining, is our trucks
     and our equipment now run consistently somewhere between 84
     and 86 dBa.  That is the noise inside the cab with the
     windows rolled up.  
              If you put in the mine radio, the AM-FM radios,
     everybody is going to be above the actual level.  We found
     that the AM-FM radios, while not required by regulations,
     have been very beneficial to the safety of the miners for
     helping them maintain alertness on the night shifts.  
              I just hope that you keep in mind the whole scheme
     of things, the safety of the people and your interest in
     noise reduction.
              MS. PILATE:  I have another question.  You spoke
     of the proposal not having record keeping requirements for
     training and other areas.  Are you aware that there are --
              MR. JEFFERY:  Yes, I realize that there are, but
     it is going to take a lot more than what is required in the
     regulations per se in order to maintain the records
     necessary to assure compliance.
              MS. PILATE:  What in particular are you thinking
     of?
              MR. JEFFERY:  For example, that we offered anybody
     that would be an actuarial we would have to show a record of
     the date and when we offered them to be in the hearing test,
     the hearing testing program, this type of thing.  
              That is just one example off the top of my head
     that I can come up with real quick.
              MR. THAXTON:  Have you gone through and prepared
     like an itemized listing then of what time costs you think
     are involved with this rule?
              MR. JEFFERY:  I think one of our members will
     present that today.
              MR. THAXTON:  Today?
              MR. JEFFERY:  Yes.
              MR. THAXTON:  Okay.  If they do not present that,
     is it possible for you to provide us something like that?
              MR. JEFFERY:  I can get it, yes.  I believe that
     they are going to present that.
              MR. THAXTON:  Okay.  Thank you, Mr. Jeffery.
              At this time we would like to take a 15 minute
     break.  We will recess until 10:30 a.m.
              (Whereupon, a short recess was taken.)
              MR. THAXTON:  The next speaker will be Steven
     Laird.  Am I pronouncing that right?
              MR. LAIRD:  That is correct, yes.
     
     
     
     
     
     
     
          STATEMENT OF STEVEN LAIRD, MANAGER OF LOSS PREVENTION,
     BELAIR MINE
     
              MR. LAIRD:  Good morning, Administrator Nichols,
     ladies and gentlemen of the panel.  My name is Steven Laird,
     L-A-I-R-D.  I am the Manager of Loss Prevention of Belair
     Mine up in Gillette, Wyoming, and I represent Amax Coal
     West.
              I am here this morning to comment on MSHA's newly
     proposed occupational noise exposure regulations found in
     the Federal Register, Volume 61, No. 243, dated Tuesday,
     December 17, 1996, Pages 119 through 123.
              Today I want to talk specifically about three
     subjects.  Number one, I want to talk about Belair's
     audiometric program, one that we have had in place for ten
     years.  Secondly, I would like to talk about the cost of
     compliance with MSHA's proposed program based upon our
     current program.  Third, I would like to talk about the
     requirements concerning feasible and reasonable engineering
     and administrative controls.
              By way of background, Belair Mine is located in
     the Powder River Basin of Wyoming.  Geographically, the
     Powder River Basin is bounded on the west by the Big Horn
     Mountains and on the east by the Black Hills of South
     Dakota.  It extends as far north as central Montana and as
     far south as central Wyoming.  It covers conservatively
     approximately 30,000 acres.
              Historically, mining in the Powder River Basin
     began just about as soon as the settlers arrived in that
     area.  Farmers, ranchers, loggers, miners, railroaders --
     all kinds of people -- converged into that area.  They mined
     the easily accessible coal to heat their homes, their
     businesses and their campfires.
              Most of the early mining in the Powder River Basin
     was localized.  It was small scale.  Powder River Basin coal
     runs the gamut from about 8,200 BTU to about 9,000 BTU, plus
     or minus a few hundred BTUs in there.  
              It wasn't until the 1970s that coal mining in the
     Powder River Basin really became large scale.  Now, 25 years
     after the first large mines were put in in the Powder River
     Basin, there are 24 producing coal mines.  These mines
     directly employ around 5,500 people, and they supply
     approximately 30 percent of the nation's coal needs.
              Belair Mine itself where I work was actually
     opened in 1972.  It is a classic open pit truck and shovel
     operation.  
              (Overhead shown.)
              If I may, this is an overhead of our truck and
     shovel operation stripping overburden in the Powder River
     Basin.  That is a Marion shovel.  That is a 54 yard bucket. 
     It is loading out a 240 ton cab truck.  
              Sequentially, what we do when we load out
     overburden is we strip off the overburden, we drill it, we
     blast it, and then we load it out with these shovels and
     haul it to the dump.  The truck is 240 tons, as I said.  It
     has been likened to pulling your favorite easy chair up to
     your front room window and driving your house.  That is how
     big they are.
              After we strip off the overburden, we mine the
     coal.  At Belair, we have approximately an 80 foot thick
     seam of coal.  As compared to people that mine in the east,
     they might be two to three feet upwards of ten feet.  We
     have one seam.  Some mines in the Powder River Basin have
     three seams upwards of 120 foot thick.
              The above comments are important, I believe,
     because they provide a setting for our mining operation.  As
     you can see, we have a large scale, world class coal mining
     operation.  We have mined coal in the Powder River Basin for
     approximately 25 years.  During that period of time, we have
     had an extremely good safety record.  We have won Sentinels
     of Safety awards in 1987, 1989, and we were runners up in
     1994.
              How do these comments relate to the proposed
     regulations?  Well, several ways.  First, the regulations
     require that companies provide an audiometric testing
     program for their employees.  Amax Coal has provided this
     program of its own accord since 1987.  
              (Overhead shown.)
              I do not know if we can get that all on there, but
     this is a stripped down version of the audiometric testing
     program that we provide.  It was originally Amax Coal
     Company, but since we were bought out several years ago it
     is now Amax Coal West.  As you can see, this is our policy
     loss prevention guideline concerning our particular program.
              Pursuant to this policy, we first require that
     each employee fill out a personal history form.  This allows
     us to see what they do on their spare time.  Many times our
     miners are a rough and tumble bunch.  You know, it is not a
     prissy operation.  The people that you employ are pretty
     rough characters in some instances.  
              They do a lot of shooting in our area, a lot of
     hunting, a lot of snowmobiling, snowmobile racing.  You name
     it.  If it has a motor on it, they like to do it.  They do a
     lot of skeet shooting, trap shooting and those kinds of
     things.
              As you know, these kind of off job activities can
     greatly impact a person's hearing.  We see in our hearing
     program a lot of right side hearing losses with our people. 
     When you go back into their background, you can see that
     they are shooters, hunters, or they do other things off the
     job that we cannot control.
              When a new employee comes on, the first thing that
     we do is conduct a baseline examination for that employee. 
     Thereafter, we conduct yearly audiometric tests.  They are
     compared with the baseline and with the previous year's
     test.  
              Employees found to possess a 25 dBa hearing loss
     in either or both ears within the speech ranges of 1,000 to
     3,000 Hz are referred to a hearing specialist for further
     testing and evaluation.  
              Employees with a hearing loss greater than 40 dBa
     within the speech range in either range are required to be
     equipped with a hearing aide device if the hearing loss is
     correctable.  If it is not correctable, then we review the
     individual's job responsibilities to insure that it does not
     adversely affect that person's safety in the job and in the
     work place.  
              If a person is found to have either a 25 dBa or a
     40 dBa hearing loss, then we put that person on a six month
     testing program.  Very seldom do we ever find that kind of a
     hearing loss in any of our employees.
              It is our policy that all employees use hearing
     protection of some kind, usually plugs or muffs.  We furnish
     the hearing protection, and it has been our experience that
     when used they are highly effective in preventing job
     related hearing losses.
              Because we do have a ten year track record of a
     hearing conservation program, we also have certain facts
     available to us about that program.  For example, because we
     have to be cost accountable to our corporation, we do track
     the costs of such a program.  
              MSHA asserts that the cost of the program will be
     offset by less paperwork for the noise monitoring
     requirements.  We disagree.  We believe that the tangible
     cost of the program will greatly exceed the cost of the
     current noise monitoring noise regulations and that
     intangible or undefined costs have the potential of being
     extremely large.
              For example, I went through the proposed
     regulations on a line by line basis and looked at the
     requirements of these particular regulations.  Using the
     regulations, it is my understanding that companies will have
     to develop a hearing conservation program, a monitoring
     program, a training program, a hearing protection program,
     and they will also have to institute administrative and
     engineering controls.
              (Overhead shown.)
              As you can see, you are going to have one, two,
     three, four, five major programs.  Under each one of those
     programs, you are going to have to institute sub-programs of
     various kinds.  
              Now, what I did for this particular handout was
     try to define exactly what the sub-programs might be.      On the right-hand side, the defined sub-program is the
     area in the regulations, in the proposed regulations, where
     you would find a mandate or requirement for that particular
     program.  
              I looked at the implementation costs of our
     program, the hours per year that I thought, based upon our
     current information and background, it would take to do the
     sub-program, the cost of that program and the total dollars
     just for implementing the program.  After the program is
     developed and implemented, you have the total yearly cost of
     running that program.
              As you can see, let's just take an example.  If
     you develop and maintain an audio test program as required
     by 62.140 et seq., we think that will take 16 hours to
     develop at a cost of about $30 per hour for a total cost of
     $480 on that line item.  
              If you follow that same pattern on down through,
     you can see that the total cost in developing and
     implementing the program proposed is about $62,760. 
     Thereafter, you will see the yearly cost of developing and
     maintaining your audio test program -- that is, keeping it
     up to speed -- is about five hours at $30 an hour, which
     totals about $150.  
              Those are all, of course, added up on line items
     at the bottom of each one of the major programs so that you
     can see the total cost of the yearly cost of administering
     the program is about $48,000.
              In the Powder River Basin, if you assume about
     $50,000 for the cost of administering the program and assume
     about 5,500 employees employed by the mines in the Powder
     River Basin, you can see that that is about $200 per
     employee, if my math is right.  
              I am sorry.  Let me rephrase that.  If you have
     $50,000 for your program, and we have 250 people at our mine
     site.  That is about $200 per employee.  If you take that
     $200 per employee and apply it to the 5,500 people employed
     in the Powder River Basin directly by mining companies, you
     are already approaching $10,000,000, so it far exceeds in
     the Powder River Basin the $9,000,000 that MSHA has said is
     the cost of the program.
              By the way, I do not have this available at the
     present time, but I will submit this particular overhead
     with my written comments at a later date.
              MS. PILATE:  Could I ask a question real quickly?
              MR. LAIRD:  Yes.
              MS. PILATE:  For example, you have to report a
     hearing loss to MSHA at five hours initially, five hours
     annually.  What is included in that five hours?
              MR. LAIRD:  That will include my time.  That will
     include the EMT's time.  That will probably include writing
     the report, maintaining the records of the report, those
     kinds of things.
              The cost that you see and the hours that you see
     are a conglomeration of our EMT, who keeps track of our
     noise records, and my time.
              MS. PILATE:  What are you going to do?  I am going
     to guess you are going to give yourself two and one-half
     hours to do what?
              MR. LAIRD:  You would have to review the
     audiometric exam, decipher exactly what caused the hearing
     loss, the kinds of hearing loss.  You would certainly have
     to have some kind of a report for MSHA.  You would have to
     prepare a letter, for example, to send it off to MSHA.  You
     would have a secretary, for example, that would either type
     your letter, etc.
              The cost that you see, the five hours, I think are
     fairly credible when you sit down and start looking at all
     the manpower associated with making a report and getting
     that report to MSHA's headquarters.
              MS. PILATE:  I cannot really see it that well. 
     Does that say $60 an hour?
              MR. LAIRD:  On which one?
              MS. PILATE:  In I guess that is the hourly cost or
     hourly wage rate for that item.
              MR. LAIRD:  I am sorry.  I do not see which one
     you are talking about there.
              MS. PILATE:  Reporting a hearing loss to MSHA.  Is
     that $60 an hour?
              VOICE 2:  It is $30.
              MS. PILATE:  $30?  Okay.
              MR. LAIRD:  Yes, $30.
              MS. PILATE:  And that is the average of the mine
     operator's time?
              MR. LAIRD:  That is what I would estimate would be
     the average of our particular set up.  If we had to develop
     a program and report to MSHA, I would assume that it would
     take me about five hours throughout the year for all of the
     people that we work with.  
              We have 250 people, actually 270, at our property. 
     Any hearing losses that should be reportable to MSHA will
     have to be reportable to MSHA.  Five hours might be a very
     conservative estimate when you look at that.
              Any other questions about that particular
     overhead?
              MS. PILATE:  Do you have an overhead with the cost
     of your existing audiometric program?
              MR. LAIRD:  I do not have that.  I think in the
     preamble to the regulations the statement was made that the
     cost of the current noise monitoring program would
     significantly offset the cost of the proposed program.  
              I guess my comment is I don't agree with that. 
     Our current noise monitoring program, just the noise
     monitoring program itself, takes about 100 of our EMT hours. 
     At $15 an hour, that is only $1,500.  
              As you can see, if we do this proposed program
     according to the regulations, it will cost us right around
     $48,000 to do every year.  There is a greatly increased cost
     in maintaining this kind of a program.  
              I can go on with my prepared text here if you
     would like, and I can address that.
              Compare the cost of our noise monitoring program,
     which runs about 100 EMT hours per year.  At $15 an hour,
     the noise monitoring program costs us about $1,500 per year. 
     The cost of implementing the new regs will be 4,184 percent
     greater.  The cost of operating the program will be 3,250
     percent greater.
              On Page 3 of the preamble to these regulations,
     MSHA asserts that the cost of control will be significantly
     offset by the elimination of the paperwork intensive noise
     monitoring and reporting requirements.  Logically, replacing
     the current program that costs us about $1,500 per year with
     one that costs 30 to 40 times as much does not seem to
     result in significant offsets.
              Finally, I would like to comment on the
     requirement of proposed Rule 62.120(c)(1) that if a miner's
     noise exposure exceeds the PEL, the operator shall use all
     feasible engineering and administrative controls to reduce
     the miner's exposure to the PEL. 
              The term all is quite inclusive.  All means
     everything.  All means all.  That is what all means,
     regardless of the cost, availability or other limiting
     factors that might be tried.  One could even envision a
     Goldberg design for equipment in which control is piled on
     top of control to abate noise.  I suggest that the term all
     be stricken.
              The same concern applies to the term feasible. 
     Feasible is defined in Webster's dictionary as that which is
     capable of being done.  In my experience, a task may be
     feasible, but it may not be reasonable.  
              For example, you could use administrative control
     to shut down a coal crushing operation until engineering
     defines a quieter rock crusher.  That may be years.  The
     shutdown would certainly be administratively feasible, but
     absolutely unreasonable from a business standpoint.  
              I suggest that this rule be revised to provide
     that engineering and administrative controls not only be
     feasible, but they also be reasonable.  
              These terms are completely undefined except that
     in the preamble to these regulations, Page 5, in the answer
     to Question 4 MSHA makes the comment that a cost that is one
     percent of revenue does not have an appreciable impact on a
     mining operation.  
              When I read this passage, I question the
     conclusion reached by the author.  That aside, several other
     factors arose in my mind.  For example, is this one percent
     of revenue for each and every control?  What if a regulator
     decides that 20 different controls are required?  Is that
     one percent of revenue for each control so that the
     aggregate could be 20 percent of revenues?  
              I could envision numerous scenarios that would
     take place if the regulatory agenda included trying to
     expand the scope of these regulations.  Is it one percent? 
     Is it less?  Is it aggregated, or is it not?  
              In summary, my concerns with the proposed
     regulations are threefold.  First, our hearing conservation
     program is simple, it is cost effective, it is successful,
     and it is voluntary.  Our current controls work quite well. 
     Our records show that hearing protection works.
              (Continued on next page.)
     //
     //
          //         MR. LAIRD:  As you can see, if we do this proposed
     program according to the regulations, it will cost us right
     around $48,000 to do every year.  So, there's a greatly
     increased cost in maintaining this kind of a program.
              You know, I can go on with prepared text here, if
     you like, and I can address that.  Compare the cost of our
     noise monitoring program which runs about 100 EMT hours per
     year.  At $15 an hour, the noise monitoring program costs us
     about $1,500 a year.  The cost of implementing the new regs
     will be 4,184 percent greater.  The cost of operating the
     programs will be 3,250 percent greater.
              On page three of the preamble to these
     regulations, MSHA asserts that the cost of controls will be
     significantly offset by the elimination of the current
     paperwork intensive noise monitoring and reporting
     requirements.  Logically replacing the current program that
     costs us about $1,500 a year with one that costs about 30 to
     40 times as much does not seem to result in significant
     offsets.
              Finally, I would like to comment on the
     requirement of proposed Rule 62.120(c)(1), that if a miner's
     noise exposure exceeds the PEL, the operator shall use all
     feasible engineering and administrative controls to reduce
     the miner's exposure to the PEL.  The term "all" is quite
     inclusive.  All means everything, all means all, that's what
     all means, regardless of the cost, availability or other
     limiting factors that might be tried.  
              One could even envision a Rube Goldberg design for
     equipment in which control is piled on top of control to
     abate noise.  I suggest that the term "all" be stricken.
              The same concern applies to the term "feasible". 
     Feasible is not defined in Webster's Dictionary as that
     which is capable of being done.  In my experience, a task
     may be feasible, but it may not be reasonable.  
              For example, you could use administrative control
     to shut down a coal crushing operation until engineering
     designs a quieter rock crusher.  That may be years.  The
     shut down would certainly be administratively feasible, but
     absolutely unreasonable from a business standpoint.  
              I suggest that this rule be revised to provide
     that engineering and administrative controls not only be
     feasible, but they also be reasonable.  These terms are
     completely undefined, except that in the preamble to these
     regulations, page five, and the answer to question four,
     MSHA makes the comment that a cost that is 1 percent of
     revenue does not have an appreciable impact on a mining
     operation.
              When I read this passage, I question the
     conclusion reached by the author, but that aside, several
     other factors arose in my mind.  For example, is this one
     percent of revenue for each and every control?  What if a
     regulator decides that 20 different controls are required? 
     Is that 1 percent of revenue for each control so that the
     aggregate could be 20 percent of revenues?  I could envision
     numerous scenarios that would take place if the regulatory
     agenda included trying to expand the scope of these
     regulations.  That is, 1 percent, is it 1 percent, is it
     less?  Is it aggregated or is it not?
              In summary, my concerns with the proposed
     regulations are three-fold.  First, our hearing conservation
     program is simple, it is cost effective, it is successful
     and it is voluntary.  Our current controls work quite well. 
     Our records show that hearing protection works quite well. 
     We do not see the need for cluttering our successful program
     with additional mandates, rules or other undefined
     requirements.
              On the other hand, the proposed rules are complex
     and extensive.  As you can see, there are numerous -- I
     think I counted 27 -- subprograms required by the proposed
     rules.  I can visualize, and many terms in the proposed
     rules are undefined -- I can visualize years of litigation
     trying to define those undefined terms.
              Secondly, the mandate found in the proposed
     regulations are quite expensive.  By my analysis, they cost
     30 to 40 times more to develop, implement and maintain than
     our current program.  
              Finally, the clause, "All feasible engineering
     administrative controls..." seems to be a blank check.  This
     clause must be more clearly defined and some form of
     reasonableness must be inserted into that clause.
              Ladies and gentlemen, these are my comments.  I
     will submit written comments, including this particular
     overhead at a later date, but for today, I thank you for
     your time and bid you good day.
              MS. PILATE:  I have one more thing.
              MR. LAIRD:  Yes?
              MS. PILATE:  You mentioned earlier in your
     comments that, as part of your job or as part of the
     company's policy that you have done, the company has done a
     cost analysis of the existing audiometric testing program.
              MR. LAIRD:  Yes.
              MS. PILATE:  Is that something that you could
     submit to us in writing in the form that you've given us?
              MR. LAIRD:  Under our current program, I could do
     that.  I believe, and I'm just recalling this from memory, I
     believe that costs us about $1,500 per year to do the noise
     and about $5,000 per year to maintain, implement and
     administer our current program.  But, I will get you those
     numbers.
              MS. PILATE:  I think we might be speaking on
     different things.  I'm not particularly interested in the
     cost of monitoring those determinations, I'm interested in
     the cost of the audiometric testing program, providing
     hearing protective devices, doing the test.
              MR. LAIRD:  Okay, I can do that.  Thank you.
              MR. CUSTER:  Sir?
              MR. LAIRD:  Yes?
              MR. CUSTER:  A question here.  To follow up on a
     statement that you made in regard to miners who demonstrate
     a 15 or 25 dB loss that at least in the 15 dB or 25 dB loss,
     you refer them for further evaluation.
              MR. LAIRD:  Right.
              MR. CUSTER:  In those cases where the hearing is
     correctable, then you go ahead and do that, I assume?
              MR. LAIRD:  Yes.
              MR. CUSTER:  Now, in those cases where the hearing
     is not correctable by use of hearing aids, what happens to
     that miner?  Does that miner transfer, because you mentioned
     you do a re-evaluation of their duties.  The question I
     have, then, is do you transfer these miners to other
     occupations or is their employment generally terminated for
     reasons that they cannot hear or cannot communicate or work
     effectively?
              MR. LAIRD:  I would like to answer that question
     straightforwardly.  I don't know that I can.  I've been in
     my present position for two years.  In my term here, I've
     not seen any person like that come through.  I'm sure,
     according to our personnel regs, what we would do is analyze
     anything like that on a case by case basis.  We very seldom
     terminate anybody for any reason such as you suggested.
              If they are in a hazardous area where they need to
     hear, we will probably evaluate their job and transfer them
     to another job of equal or like character and pay.
              MR. CUSTER:  I was merely trying to determine if
     your company's policy has an implicit miner transfer
     provision, for example?
              MR. LAIRD:  It does.  I don't think that it is
     written.  We handle those particular types of things on a
     case by case basis, so we would probably, in my experience,
     we would probably not terminate a miner, the kind you talked
     about.
              MR. CUSTER:  Thank you.
              MR. VALOSKI:  You said that you had an audiometric
     testing program, but you didn't give any results of it, of
     the testing, like our first several speakers.  Do you have
     any summary results, number of people tested and how their
     hearing has changed over the course of the, what, ten years
     of the audiometric testing program?
              MR. LAIRD:  I have those graphs and charts.  I
     provided those to the next speaker, and I think that he will
     summarize what I gave him and tell you more about the
     results.
              MR. THAXTON:  You had indicated that you would
     provide us with a copy of the chart that's on the overhead
     at this time.  You also used a chart of your loss prevention
     guidelines, employee audiometric testing program, which
     detailed your program.
              MR. LAIRD:  Yes.
              MR. THAXTON:  Would you be willing to share a copy
     of that with us, as well?
              MR. LAIRD:  I'll certainly cover that with my
     BPGM, and if he approves that, I will have no problem
     providing you with that guideline.
              MR. THAXTON:  Thank you.
              The next speaker is Link Derick.  You're not going
     to read this to us, are you?
              (Laughter.)
     
     
     
     
     
     
     
          STATEMENT OF LINK DERICK, TECHNICAL SAFETY MANAGER,
     TWENTYMILE COAL COMPANY
     
              MR. DERICK:  My name is Link Derick, L-I-N-K, D-E-R-I-C-K, one R.  I'm with Twentymile Coal Company, and
     that's one word.
              Ladies and gentlemen, Chairman Nichols, I
     appreciate the opportunity to talk today.  I actually have
     two separate testimonies and I'll stop in the middle.  One
     covers one mine, one previous employer that was bought by
     our company and then our current.  They address separate
     issues.
              I'm an active member in the Colorado Mining
     Association Health & Safety Task Force and also with the
     National Mining Association Task Force on this noise issue. 
     I'll take just one second and Bruce is going to help me with
     some overheads.
              MR. THAXTON:  Before you start with your
     overheads, if you don't mind, we want to adjust the screen,
     because we have trouble up here seeing the screen.
              (Pause.)
              MR. DERICK:  Again, my name is Link Derick, and
     I'm currently the Technical Safety Manager for Twentymile
     Coal Company, a division of Cypress AMAX Coal Company.  Our
     operation is located near Oak Creek, Colorado.  I previously
     worked at the Orchard Valley Mine in Paonia, Colorado.
              MSHA has requested any information that
     demonstrates the effectiveness of hearing protection,
     especially with regard to earplugs.  MSHA has made reference
     to several studies which suggest that earmuffs should
     receive a considerably lower reduction rating than they
     presently have and they further propose the same lower
     rating for earplugs, due to a lack of information available
     to evaluate their effectiveness.
              Furthermore, MSHA states that earmuffs are less
     effective for low frequency noise, a fact that has always
     been known, but which should not be expanded to earplugs. 
     Several of the reference reports in the preamble refer to
     lost data on western mines.  Apparently, these documents
     were purged due to their age, but they will now be retrieved
     from company records and submitted to MSHA.
              MSHA has also proposed that industry should rely
     primarily on feasible engineering and administrative
     controls for exposures above the 90 dBA levels.  MSHA should
     consider the limited success of reports previously written
     by their technical support staff, which demonstrate the
     difficulties associated with controlling noise with
     engineering controls.
              I intend to discuss the effectiveness of hearing
     protection versus the effectiveness of engineering controls. 
     I will present information that will support that hearing
     protection is effective for exposure to high noise levels,
     where the benefits of engineering controls are questionable.
              Some background.  In the early 1980s, extensive
     work and research on the noise levels and resulting employee
     noise exposure from the newly purchased fleet of four wheel
     drive haulage units was undertaken at the Orchard Valley
     Underground Coal Mine, in conjunction with MSHA technical
     support from Denver.  I will submit four MSHA technical
     support reports, two which summarize engineering control
     efforts and two which summarize the effectiveness of
     personal protection.  I will submit an internal company
     report written at the same time.
              At the conclusion of this project, MSHA technical
     support personnel stated that this work was the final
     supporting data that the national office would use to
     support the use of hearing protection to comply with the
     noise regulations and underground coal mines, which would be
     similar to surface coal mine operations.  This data could be
     regarded as actual experiences versus expert testimony.
              However, the benefit of this data may actually be
     greater than any of the professional reports I reviewed in
     the preamble of the proposed regulations.
              At Orchard Valley, we realized that our newer
     fleet of haulage units drastically raised the employee noise
     exposure levels.  Therefore, we met with the MSHA district
     manager, who offered technical support and assistance from
     the noise control group of District 9, which proved to be
     invaluable.  These experts in this field who possess the
     equipment to match their skills defined the problem and
     implemented sound engineering controls.  These experts
     suggested a reasonable and practical approach concerning the
     type of controls that would be feasible and would not cause
     overheating, safety or other problems.  If you'd put that
     first overhead up?
              This overhead illustrates the noise exposures that
     were involved.  The differences between monitored and
     unmonitored noise dosimeter samples and the limited
     effectiveness of engineering controls.  These were, after
     all, engineering controls recommended where implemented.
              You can see we were dealing with eight hour
     exposures in the average of an 97, 98 decibel area.  While
     in the process of evaluating several engineering control
     recommendations, the haulage units did overheat, the noise
     reduction fiberglass fan disintegrated, and the sound
     barrier material became a nuisance by collection of water or
     other materials and interfered with adequate head room.
              The overall benefit obtained appeared to be
     approximately a three decibel improvement in noise levels,
     however, the difference in noise exposure by dosimeter
     readings was negligible.  Actually, that ended up being
     about one tenth of a decibel.  It quickly became obvious
     that engineering controls were not the answer to our
     immediate concern, and an effective hearing conservation
     program would be required.  At that time, hearing protection
     was not accepted or utilized, except when noise caused pain
     or where it was obvious that protection was required.
              In order to encourage use of proper hearing
     protection, we explored methods to demonstrate the negative
     health impact and the hazard of noise.  A joint decision was
     made by MSHA and the company to perform before shift and
     after shift audiograms on high risk employees.  This route
     was chosen because hearing loss is a result of daily
     temporary threshold shift over the employee's working
     lifetime and beyond.
              A textbook description demonstrates that hair
     cells in the ear canal will wear down after each exposure
     and recover after each rest period.  Eventually, those hair
     cells fail to return to the normal position.  It becomes
     apparent that an employee who had a daily temporary
     threshold shift that returned to normal during a rest cycle,
     then a measurable temporary threshold shift should occur
     each day.  
              A more significant threshold shift should occur
     when the noise exposure is greater.  If noise exposures were
     similar each day, the temporary threshold shift should be
     easily distinguishable if effective hearing protection was
     utilized.
              Because of the importance of demonstrating the
     need for hearing protection, MSHA did not object to
     performing these tests with and without hearing protection
     being utilized.  On the screen now is a copy of the approval
     letter.  The bottom paragraph is from the district manager. 
     It says they would cooperate in anyway and would have no
     objections to not wearing hearing protection.
              When MSHA technical support finalized their
     observations and conclusions of the audiometric testing data
     from the before and after shift tests, they did not include
     the shifts which did not utilize hearing protection.  There
     are about two pages of overheads, Bruce, if you'd put it up
     quickly, that showed just the format that MSHA technical
     support used.  They were interested in the before and after
     shift, temporary threshold shift for categories like
     frequencies, age of miners, and a few other variables that
     are all in the technical reports.
              As shown on the overhead, we both added up the
     hearing levels and divided by the number of frequencies
     tested in order to reach an average number for the
     audiometric data.  If you'd put that next overhead up,
     please, Bruce.  This overhead shows a typical audiometric
     test and an example of how we calculated the single number
     for comparison purposes.  Because of the type of printout
     produced from the audiometric test, it was easy to arrive at
     an estimate of the hearing level.  You can see what we're
     doing there.  We take all 14 frequencies, divide by 14 and
     come up with just a single useful number to talk to the
     employees with.  
              The equipment used at this time was MSHA technical
     support equipment.  The final audiograms, after we used them
     for our internal use, would be shipped to Denver.
              Because we wanted to minimize the potential that
     the temporary threshold shift would return to normal before
     the after audiometric test, we only tested employees who
     trammed the haulage unit up a significant grade to the
     surface and performed the after test as soon as possible
     thereafter.  Several sample summary sheets of the test
     employees will now be reviewed.
              The haulage unit noise levels were higher in the
     lower frequency, which demonstrates that earmuffs were not
     the optimum type of protection from a diesel engine, diesel
     fan noise source.  However, no changes were undertaken until
     several additional tests were performed.  This graph
     indicates the severity of a temporary threshold shift, when
     hearing protection was not utilized, and demonstrates that
     the measured temporary threshold shift was reduced when the
     employee was switched from earmuffs to earplugs.  The
     haulage unit noise levels were high in the lower
     frequencies.
              If you look at that graph, it may not look as
     significant as it is.  If you look at the stars, those are
     after shift audiograms, when hearing protection was not
     worn.  That difference in the first few days there is an
     average of 17 decibels over all 14 frequencies, so the
     number is a little more significant than it appears.
              You can see it on the days the hearing protection
     was worn, we still were not happy with the before and after
     shift temporary threshold shift, so the last columns over is
     that employee was switched from earmuffs to earplugs and
     that temporary threshold shift was closed.
              The next graph illustrates the effective use of
     hearing protection and the increased threshold shift when
     hearing protection is not utilized.  Again, the stars are
     shifts when hearing protection was not worn.  In this case,
     there are some teletram out that says no.  That's because
     the mining section was real close to the mine portal.
              The next graph -- this illustrates that when an
     employee is exposed to higher noise level haulage unit, the
     temporary threshold shift higher than the other employees
     still existed when earplugs only were utilized.  This
     employee was eventually instructed to utilize both earmuffs
     and earplugs, thus minimizing the temporary threshold shift. 
     So, by tracking the audiograms, you can look at the
     dosimeter reading averaged around 101 on this teletram for
     an eight hour shift.  So, it was significantly higher than
     the others.
              Later, in an effort to control noise through an
     effective hearing conservation program, MSHA assisted us in
     evaluating the effectiveness of earmuffs.  They did this by
     installing recording noise instruments inside and outside
     earmuffs, while operators, or while employees operated their
     haulage units in a normal manner.  The overhead, the results
     of these tests indicate an almost exact match of the R
     rating for two types of earmuffs, as expected.  Protection
     from lower frequencies was less than higher frequencies,
     however, noise levels are also lower in those lower
     frequencies.  If you'd put the next overhead up first?
              That shows the octave band breakdown of inside and
     outside the muff.  The top part is the tape that they use to
     determine the octave bands.  Over on the left side, it's
     clear that the protection from lower frequencies is less
     than higher frequencies.
              The next two slides or overheads are examples of
     the teletram noise, actually the diesel haulage noise, with
     the black being the difference with and without control. 
     That's what we gained in the black range.  But, as you can
     see, the lower frequency has lower levels of sound, too. 
     You can put the other one up.  It's just similar.
              In conclusion, I believe that the use of hearing
     protection is critical to an effective hearing conservation
     program.  I also believe that relying on engineering
     controls, in order to avoid exposure to high levels of
     noise, would be difficult and may ultimately lead to a near
     compliance level of achievement without encouraging the use
     of hearing protection.  The type of testing which was done
     at the Orchard Valley Mine could be repeated in other mines,
     if the effectiveness of hearing protectors continues to be
     of primary importance to MSHA.  In that book, there are four
     MSHA technical support reports and then quite a bit of
     Orchard Valley reports.
              I can't retrieve, we don't own that mine at the
     current time, and I couldn't retrieve the actual audiograms,
     because they were forwarded to MSHA tech support.  I was
     hoping to be able to retrieve those so I could look at
     individual frequencies now that this issue came up.  I'm
     still going to try to pursue that data.
              If you have any questions, it would probably be
     better now before we move on to Twentymile comments.
              MR. THAXTON:  Proceed.
              MR. DERICK:  As I stated before, my name is Link
     Derick and I'm currently the Technical Safety Manager for
     Twentymile Coal Company, division of Cypress AMEX Coal
     Company.  Our operation is located near Oak Creek, Colorado,
     with the neighboring cities of Craig and Steamboat Springs
     close by.
              Our mine consists of two continuous miner sections
     and one long wall section.  We presently produce
     approximately six million tons annually.  We're planning in
     progress to produce more than eight million tons annually. 
     The mine has steep haulage ways that range from 6 percent to
     26 percent entry grades, with up to 17 percent cross-cut
     grades.  The continuous miners we utilize have dust scrubber
     systems and auxiliary fan face ventilation.  The long wall
     shearer speed is normally operated at approximately 125 feet
     per minute, and shift production of 18,000 to 22,000 tons is
     frequently reached.  The mine operator operates on ten hour
     shift schedule, because of the long drive to the property
     and employee preference.  These facts are pertinent to the
     comments I'm about to make.
              Although many of my comments will touch on a
     variety of subjects, my focus is towards MSHA's request for
     data on employee noise exposures, related use of hearing
     protection and the related audiometric testing results. 
     MSHA has stated in the preamble that because information is
     unavailable to correlate the above items, and utilizing only
     reports submitted to MSHA from NIOSH, the hearing loss
     observed by NIOSH in a select group of audiograms, either is
     a result of ineffective use of hearing protection or the
     lack of use of hearing protection.
              Our experience indicates that hearing protection
     is effective and must be worn in all areas or occupations
     where the six month noise surveys indicate exposures above
     90 decibels.  The process utilized to assemble this data has
     been intense.  First, since our employees are offered a
     complete voluntary wellness physical each year on their
     birth date at their choice of several participating medical
     clinics in several communities, assembling this data takes
     time.  These physicals are considered to be confidential,
     and each request for audiogram history was accompanied by a
     signed medical release form.  I'll put that up after.  The
     copy of the release form by letter sent to each employee is
     displayed.
              If you'd put the other one back up, Bruce, just
     for a second, this wa sin answer to MSHA's statement about
     the data correlating exposure to work history to audiograms,
     to the use of hearing protection was not available.  That's
     what we requested our employees to provide.  If you could
     put the other one back up, Bruce?
              We mailed out 385 of these medical releases to
     each employee, did find out that then, when we wanted a
     follow up audiogram, the clinics insisted on a new, fresh
     date, because they would not release any information without
     the available release.  So, it was kind of a burdensome
     process.
              Knowing that the process of receiving the
     audiometric testing results would be slow, all of the
     available six month noise survey data that is submitted to
     MSHA was reviewed from the start of the mine until December
     of '96.  Two data bases were established.  One compiled with
     long term employees who were still at the mine, including
     some high risk employees that are still performing the same
     duty.  A second data base was established that included all
     over exposures reported to MSHA in the six months surveys. 
     Noise dosimeters were used for the data collecting.  The
     over exposures are being submitted as they were compiled by
     miner and by occupation, so three sets of noise data are
     being submitted.
              This is an example of taking all of the over
     exposures reported to MSHA and then selecting it by
     occupation.  These are just examples of what are in the
     book.
              The next is then separating them by name, and as
     we said on the medical release, no names would be used, but
     so you can tie these to some audiometric results and
     everything, the miner's name has been turned to miner
     number.  So, that was the first chart, but this is
     separating it by their job title.  
              The third was targeting people that we could that
     were at the mine for the longest.  The mine started
     underground coal mining in 1983, so this was taking a select
     group of people that were still at the mine.  Both target
     groups, high risk and long term employees, were personally
     contacted for releases and follow up audiograms if a current
     one was not available.  The noise exposure data and
     audiograms have been assembled on a two page report for each
     employee.  This data is corrected for aging for the MSHA
     method and also for the OSHA method.  We recommended that
     the OSHA method replace the MSHA proposed methods for noise
     regulations.  
              Only the first and last audiogram were used for
     age correction, however, some of the intermediate audiograms
     may normally have been used for a new baseline.  When the
     medical profession would go through these, there may be one
     of the cases where a more recent one would be a new
     baseline, but I didn't correct for that.
              By assembling data on both high risk employees and
     long term low risk employees, if hearing protection was
     affected, it should be difficult to distinguish which type
     of employee was being studied.  This was the apparent
     noticeable result.  If you could go ahead and put up the
     first, and then we'll just look at that.  
              This is page one of a two page summary of each
     employee.  It's all their audiograms.  The bottom two are
     just looking at their first and last audiogram.  If you'd
     put the second page up, I'm going to reuse those, Bruce,
     too.  This is then taken, the audiometric results,
     correcting them for the OSHA and the MSHA, and then at the
     bottom is the summary data, their exposures.
              If we quickly look at the overexposures reported
     to MSHA, there's quite a few columns on there.  One is the
     percent dose -- I know it's hard to read, but I'll just
     explain them -- the percent dose that would have to be used
     to be reported to MSHA with a corresponding dBA level for
     480 minutes and then we're on ten hour shifts, the dose is
     corrected for the length of shift, and a new dBA average,
     and then the hearing protectant value that is submitted on
     the MSHA noise card is included, and then it's an adjusted
     dose.
              What's important on that is when we're talking
     about noise protection, the length of shift, the actual
     percent dose is not what's important.  It's the equivalent,
     actual dBA average that's important, because you're trying
     to use a hearing protector for that level of noise, not the
     dose of noise.
              One major difference that could be noticed was the
     impact of apparent exposure and loss to one ear from big
     game hunters and target shooters.  Many of our employees at
     our operation hunt big game.  Some of the largest elk herds
     in North America are bordering our mine site.  I asked our
     environmental department, who administers hunting on our
     mine property, like I say, the clerk informed me that we
     also have a handicap season, which is one of our benefits
     that we do for the local area and all over Colorado, plus
     some of our customers.  But, we have 380 people.  You can
     see this is just on mine property that we had 260 people
     apply for hunting licenses of big game.  Most of them
     succeed.
              If you put the overheads back up, the first
     audiogram, please -- if you put that up, you can see the gap
     on the left ear.  If you put the second page up, now.  If
     you notice, the right ear actually had on the MSHA, 2,000,
     3,000 and 4,000 Hz range he actually gained versus hearing
     versus aging, I'm sorry, by one decibel.  Yet, on the left
     ear, he had a 12 decibel.  I personally know this employee's
     family is from Paonia all the way up through Cypress Empire
     and over to the Cypress Twentymile, very avid hunting
     family.  In fact, his brother was a safety rep for me at
     Orchard Valley and when the elk were starving, I lost him
     because he'd quit if I wouldn't let him go out and feed the
     elk.  So, very active hunting family.  Typical one ear loss.
              The next audiogram, the employee with the right
     ear loss displayed was asked if he was a left handed hunter. 
     The comment back was, how did you know that?  We know that
     from this data.  We continue to encourage hearing protection
     while target shooting and suggest the use of a single
     opposite handed earplug while big game hunting.  That is,
     you're not going to talk the big game hunters into wearing
     their typical sighting ear protection, but our
     recommendation now is, if you're right handed, where a left
     ear plug.  That way, you can still talk and that when that
     instant elk jumps out there and you want to shoot, you're
     going to turn a protected ear.
              The proper hearing protection while off the job
     can be stressed to reduce the potential of a standard
     threshold shift.  However, the off the job exposure must be
     considered when investigating the on the job effectiveness
     of hearing protection.
              In gathering this data, one employee's audiograms
     were unusual and warrants discussion.  Put the next up,
     please.  It should be miner 19.  It should have been in
     order there.
              This miner was asked to participate because of his
     length of time operating a shearing machine on the long wall
     face.  He suggested that we use someone else, since he had 
     a serious ear problem in the left ear, from an accidental
     gunshot going off in the 1980s, before coming to work for
     Cypress Coal.  I told him that did not matter, because the
     baseline would indicate the impact of the traumatic injury,
     which required surgery.
              In obtaining the audiograms, three early
     audiograms did not indicate this loss.  He was then sent for
     another test in 1997, which indicated a very severe loss in
     the left ear.  We have been working with the specialists who
     are assisting this employee.  The hearing loss was present
     in 1995, when the employee saw the specialist.  They have
     stated that a loss can occur in this delayed manner.  The
     specialist recommended that we remove this employee from the
     database, but we believe including this type of data
     supports the use of medical explanations for unusual
     audiograms.  The proposed regulation also recognized this
     situation, however, as proposed, this may only be a decision
     of the medical profession.
              Looking at the right ear is an example of an
     effective use of hearing protection.  This operator, you
     can't get him to even eat lunch if that shearer is running,
     and his right ear shows an actual gain in hearing versus
     age.  But, if you look at his left ear, a 70 dBA loss, which
     didn't show up on three baselines.  I thought because it
     didn't show up on three consecutive earlier tests, it's kind
     of a good example of a medical situation.  The specialist
     continues to work with this employee.  They're doing an MRI,
     doing lots of others, to make sure it is strictly the result
     of a gunshot wound, or gunshot accidently going off in his
     ear back in the '80s.
              Okay, we've discussed some of the unusual
     findings, but now let's look at the typical findings.  We
     targeted three occupations that have regular overexposures: 
     long wall shearer operators, continuous miner operators and
     diesel scoop operators.  All of these employees work ten
     hour shifts.
              I was going to put back up the list of the
     overexposures, but I'm not going to do that.  Previous
     overhead showed the effect of the extended shifts, and I
     covered it there, where we have to look at what I'm trying
     to present testimony on, the effectiveness of hearing
     protection.  It's important that we define the underlying
     dBA level, not the dose.  A lot of our other operations work
     12 hour shifts.  The dose could be way high, but when you do
     them on a corresponding dBA level to produce that, it's a
     lot lower.
              MR. VALOSKI:  Before he goes on, could you please
     explain that last statement?
              MR. DERICK:  Right now, if we put a noise
     dosimeter say in our operation where Steve Laird was talking
     about, and they run 12 hour shifts, it's going to produce a
     dose.  Most people are going to take that dose, look at the
     corresponding eight hour dBA equivalent, okay.
              MR. VALOSKI:  Okay.
              MR. DERICK:  However, the 12 hour dBA level is
     much lower than that.  So, what I'm trying to emphasize is
     how little we need of the R rating of a hearing protector to
     actually provide adequate protection.
              If hearing protection is being utilized at either
     level, and we're talking about eight hour or ten or 12 hour,
     the level of protection required from the hearing protector
     is very low to obtain an equivalent low 80 level of noise
     exposure.  This would reasonably imply that the audiograms
     of the two groups, high exposure wearing hearing protection
     and low exposure, not wearing hearing protection, should be
     similar.
              The next overhead are three examples, I'm going to
     put two examples of low exposure.  Can you put the second
     page up, please?  This is a typical low exposed female
     office worker.  In this case, the low exposure resulted in
     seven decibel gain and a four decibel gain, respectively, in
     the two ears.
              The next is a low exposed underground miner.  If
     you put the second page up, it will show the exposures.  You
     can see on the six months back to December of '84, this
     employee is typically a beltman fire boss.  All of his
     exposures using a 90 dBA threshold were in compliance, and
     he showed a two decibel loss and a zero decibel gain or loss
     in the other ear.
              The next one, in case you want to ask any
     questions, I put my own up.  I know there's questions about
     presbycusis and aging -- of course, I'm just about ready to
     turn 30 -- the numbers lie up there.  I wanted to put my own
     up there, in case there are any real questions.  You look at
     the left ear, starting to see significant threshold shift. 
     If you then correct for aging on the second page, you can
     see over my time at Twentymile or Empire and Twentymile, had
     an eight decibel gain versus aging in my right ear, and a
     four decibel loss in my left ear.
              Now, let's quickly look at several examples of
     high risk occupation employees.  The scoop operators travel
     extremely steep grades throughout their shifts, which
     require high RPM and work load.  The continuous miner
     operators have additional noise sources with the auxiliary
     fan noise and dust scrubber systems on all of the continuous
     mining machines.
              The shearer operators are sometimes cutting coal
     the entire shift.  Shift tonnages of 25,000 tons have been
     reached and this level is expected to be fairly common in
     the future.  To look at the entire -- well, let's put some
     of those up.  We'll go through them.
              This is scoop operator with the ages, I'm having
     trouble seeing, but I think they're nine years difference. 
     I think it was 49 to 56.  You can see the overexposures
     reported to MSHA.  If that is a snapshot in time on a six
     month noise test, we take it every working day those are the
     levels he's exposed to.  You can see high levels and with
     hearing protection versus the aging process, he's actually
     gained in his hearing threshold by five decibels in both
     ears.
              Put the next one up is another scoop operator that
     was our primary material handler for years in the mine. 
     Again, he had a one decibel gain in one ear versus aging, a
     four decibel gain versus aging in the other ear.
              Next, there are some shearer operators.  You can
     see the length of the time operating the long wall shearer. 
     The time operating the long wall shearer, five decibel loss,
     standard threshold shift, six decibel.  This is another
     shearer operator, gained in one ear, lost in the other.  I
     do need to ask him about whether he's a hunter, and I'm
     pretty sure he is.
              To look at the entire database of this limited
     study, I've developed a chart of anticipated results as
     compared to the actual results that are indicated by the
     data.  It's important to remember that employees selected
     for the study were selected by length of service and
     frequency of overexposure.  The employee selection was made
     prior to obtaining any audiometric data.  We actually biased
     the study with high risk employees so that we would be
     investigating the worst case situations.
              The fact that hearing protectors are being
     regularly utilized can easily be confirmed by the purchasing
     data of such devices.  We utilize quite a few earmuffs, but
     usually as an additional control, the earplugs.  An example
     of this is the concern of flying chips of coal from the long
     wall face.  The shearer operators will regularly wear
     earplugs for noise control, whether or not their air stream
     helmets are being used, and then utilize earmuffs on the air
     streams for protection from the possible flying coal.  
              The use of earplugs is so economical that boxes
     are provided throughout the operations near any high risk
     area.  You can see that that represents probably under
     25,000 sets of earplugs, just 12 month purchasing data taken
     off the computer.  
              With a number of employees and defined occupations
     of reported overexposures to MSHA, compliance requiring
     hearing protection has never been a concern for MSHA or
     company officials.  Use of hearing protectors is taken for
     granted, as employees consider it a matter of culture,
     similar to wearing safety glasses at all times or never
     operating the shearer without air stream helmet protection.
              In fact, hearing protection really seems to be the
     easiest employee adoptable device.  It's one that, as far as
     I've seen, all the way back to the Orchard Valley data, it's
     not even a question.
              Administrative controls, rotating operators in any
     one of the high risk areas is only feasible when it's
     performed at the convenience of the normal operating
     practices.  Some crews do this for flexibility and some do
     it for training reasons.  When mining conditions warrant,
     there are times when only a select few employees are chosen
     to operate certain pieces of equipment.  We are
     discriminating when it comes to a selection of scoop
     operators to drive on steep grades and severe cross-pitches. 
              Similarly, we are selective on who operates the
     continuous miner in steep cross-pitching, steep grades or
     adverse roof conditions.  Not all employees are capable of
     maintaining proper horizon control while walking 11 miles on
     a steeply pitching long wall face, wearing an air stream
     helmet and other safety equipment.  These dedicated
     employees don't want to perform other tasks, and it is
     difficult to find suitable replacements.
              It takes an extended period of time to train
     someone to be a skilled professional miner in today's
     current technology.  The fact is that administrative
     controls are implemented as a matter of normal operation,
     rather than a matter of compliance with the regulation. 
     Exceptions to this are areas where the only manner of
     achieving proper hearing conservation is through
     administrative controls due to very high noise levels.
              We believe that hearing protection provides
     adequate protection to our employees, relative to the levels
     of exposure that we experience and that the results of
     audiometric testing verifies this effectiveness.  In
     conclusion, we support the proposed regulations for the 80
     dBA measuring threshold and the 85 dBA action level.  We
     also support the adoption of the MSHA method of allowing
     hearing protection in the exposure ranges from 90 dBA to 100
     dBA.  In this range, compliance would be achieved with the
     method of subtracting seven dBA and dividing by two of the R
     factor of each hearing protector.
              These employees would be part of the action level
     group requiring audiograms.  Extended shifts that have noise
     levels below 100 dBA would be adequately protected with the
     use of hearing protection.  Exposure to over 100 dBA would
     be addressed by the feasible and reasonable engineering
     controls first, and/or dual protection at 105 dBA levels, as
     specified by the regulations.  Additional written comments
     will be submitted before the close of the public record,
     however, we suggest that MSHA keep the record open for a
     longer time period so that additional audiometric data can
     be assembled.
              We are participating with the National Mining
     Association that requested a 60 day opening of the record
     past the close, and I'm not sure where that stands as of yet
     today.  Part of what Steve Laird talked about is, as Cypress
     AMEX, there will be additional speakers in Las Vegas from
     our topper operation in Cerita and Baghdad, and then
     audiometric data will be forwarded to the National Mining
     Association for additional inclusion.
              Thank you for the opportunity to speak here today.
              MS. PILATE:  I have some questions.  On the
     overhead that presented the audiometric testing data, it
     stated the person that gave the exam was the company safety
     manager, yourself.  Are you normally the person that
     administers the exam?
              MR. DERICK:  You are looking at the Twentymile or
     the Orchard Valley?
              MS. PILATE:  It was one of the first ones.
              MR. DERICK:  One of the first?  That was all
     before and after shift done right on the property for
     evaluation of hearing protection, not really establishing
     baselines.  All of them were done under my direction.  I
     have been, I am a certified audiometric tester, but I
     haven't kept that up current in the last decade.
              One of the concerns I had personally is back in
     the 1980s, with the help of MSHA tech support, we felt we
     adequately chose the right direction for protecting people
     from loud noise, and that was hearing protection.  Then we
     see, 13 years later, we see reports written as early as the
     mid-80s that questioned the use of hearing protection, but
     we were never notified of now that questionable use of them. 
              So, noise has been one of the many issues from
     mine rescue to mine fires to ventilation to roof control
     that we worked on that I felt we really had the right
     answer, and that was encourage hearing protection and insist
     upon it in the high risk areas.  
              When I went to Twentymile Coal, they were a step
     ahead of where I'd been at Orchard Valley, not doing the
     testing results, but it is just without question, you will
     wear hearing protection.  You will never operate the shearer
     without an air stream helmet, and you will never work
     anywhere without safety glasses.  Those are just imbedded in
     the culture of that operation.
              MS. PILATE:  On the records for the first company,
     it stated that the tests were administered, one was given in
     the training room, the other one was given in the mine
     office.  Was a hearing booth used in either case?
              MR. DERICK:  No.  In the MSHA tech support report,
     you'll see where they did background testing of those rooms,
     to make sure they would use the data.  We used the
     audiometric testing as a safety tool versus a medical tool. 
     It was trying to evaluate and demonstrate to employees --
     some of the other employees in that sheet refused.  You'll
     see where there is no shifts where they didn't wear hearing
     protection, because once we went through the whole subject,
     they refused to work the shift without hearing protection,
     which they were working them without universally until all
     this was analyzed.
              MS. PILATE:  How long do you estimate that it
     takes to administer an audiogram?
              MR. DERICK:  The actual test itself is probably
     about 15 minutes, once you get the person there.  In order
     to complete this -- when I said we selected that group, as
     of Friday, I had one person that promised he'd go in and get
     his after, and another guy that was one of the first miners,
     and their first day back to work was Friday.  We put him in
     the car, drove him 38 miles to Craig and got the sample and
     brought him back.  I mean, that's how much we wanted to get
     a complete database of the people we chose.
              On a normal, it would be part of their wellness
     physical, and so the timing would be, when I have mine, it's
     about 15 minutes, but it's while you're waiting for them to
     look at your chest x-ray.  If you have the instrument on
     site, which I know some of our other operations in Colorado
     do it with a booth on site, I would assume probably 20
     minutes would be an accurate timing.
              MR. THAXTON:  Thank you, Mr. Derick.  It's now
     11:50 and we're going to recess until 1 p.m. for lunch.  The
     hearing will reconvene at 1 p.m.
              (Whereupon, at 11:50 a.m., the hearing was
     recessed, to reconvene at 1:00 p.m. this same day, Tuesday,
     May 13, 1997.)
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          //              A F T E R N O O N   S E S S I O N
                                                   1:00 p.m.
              MR. THAXTON:  Okay, at this time we'd like to
     reconvene the hearing, if everybody would please take a
     seat.  
              Before we get started with the next speaker, one
     item of clarification.  Is Steve Laird still here?  He left? 
     Link, I guess you're the only one left of the people that
     presented this morning.
              If you have the data that you've referenced in
     making your comparisons, if it's available on diskette or
     computerized, we'd request that you submit a copy to us of
     that data, computerized.  In order for us to be able to do
     any meaningful evaluation of the data, we would almost have
     to have some type of database.  So, if it's possible, if you
     have it available, we'd request that you send us a copy of
     it on computer disk, as well.
              MR. DERICK:  The only thing that wouldn't be would
     be the overheads from Orchard Valley, because they were
     right out of the report.  
              MR. THAXTON:  Okay, we appreciate it.
              One other matter of clarification and business. 
     Vicky would like to make a request of those people that are
     doing comparisons for the cost.
              MS. PILATE:  I have a suggestion, that if you have
     a copy of the readout, that you mark up the areas that you
     disagree with.  For instance, if we have something that says
     one hour and you believe it should be two hours, mark that
     down.  If we have a wage rate of $16 for a secretary and you
     think it should be $25, mark that down and submit a copy of
     the marked up readout to the address that's listed in the
     proposed rule.
              MR. THAXTON:  Okay, with that, we'd like to go
     back to the schedule of presenters.  Our next speaker is Jim
     Stevenson.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF JIM STEVENSON, INTERNATIONAL HEALTH AND SAFETY
     REPRESENTATIVE, UNITED MINE WORKERS OF AMERICA
     
              MR. STEVENSON:  Thank you.  I appreciate the
     opportunity to be here today to make some comments or an
     overview of the proposed rule.  My name is Jim Stevenson, S-T-E-V-E-N-S-O-N.  I'm an International Health and Safety
     Representative for the United Mine Workers of America,
     covering the Western United States, including Arizona, Utah,
     Wyoming, New Mexico, Colorado, Montana, North Dakota,
     Washington state and Alaska.  I've been in the mining
     industry for 28 years.  Twenty-three and a half years of
     that was in an underground in Sunnyside, Utah, which I
     worked in conventional filler sections with drilling and
     shooting, using joy loaders, continuous miner development
     sections, and 14 years on a long wall, about 11 years as a
     shearer operator.
              What I'd like to do, for the record, is I have
     detailed comments on each section.  You may already have
     this, I'm sure you do, but I don't want to go through the
     whole thing.  I'll just do an overview.  I've got four
     copies of this and I'll give them to you now.
              What I'd like to do is, like I say, just give an
     overview of what we feel about the new proposal, the
     improvements, which we think are technical improvements that
     we like in the proposed rule, and also the negative aspects
     of it.
              First of all, in the technical requirements,
     there's definite improvement, because establishing an action
     level at a time weighted average exposure above 85 decibels,
     which requires the operator to require training to the
     exposed miner and enroll the miner in a hearing conservation
     program, if the miner so chooses.  When a miner's exposure
     to noise exceeds the TWA of 90 decibels, the operator must
     use all feasible engineering and administrative controls to
     reduce the miner's exposures to the PEL.  We feel that's
     very important that you have to deal with the noise at the
     source.
              Exposure above 90 decibels in practice measured
     the exposure at or above 130 percent of permissible exposure
     limit, which is equal to an average exposure of 91.7
     decibels.  This is a continuation of MSHA policy, and is
     designed to accommodate uncertainty in the measuring
     equipment or instrument.  
              The noise exposure, and we feel this is very
     important, too, is not reduced if the miners are wearing
     hearing protectors, earmuffs or plugs.  For purposes of
     issuing a citation requiring engineering controls and
     enrolling the miner in a hearing conservation program, the
     miner is given no credit for the use of hearing protectors,
     muffs or plugs in calculating exposure.  In the past,
     operators were allowed to reduce major exposure by
     subtracting the noise reduction rating minus seven decibels
     from exposure as measured from dosimeter or sound level
     meter.
              Mine operators must monitor exposure to noise and
     inform exposed miners annually if it is above the action
     level.  When measuring noise, all noise above 80 decibels,
     the threshold has to be measured for its contribution to the
     average exposure.  The present policy considers only noise
     above 90.  
              If a miner has a hearing loss by specified amount,
     it has to be recorded and he or she is required to be
     offered hearing protectors and annual hearing tests.  When a
     hearing loss has occurred, a significant threshold shift,
     recording is done according to Part 50 regulations, the way
     all other injuries and illnesses are recorded. 
              When a miner is enrolled in a hearing conservation
     program, the operator must offer the miner the opportunity
     to have a baseline audiogram and subsequent audiograms, as
     long as the miner remains in the hearing conservation
     program.  The time weighted average of an eight hour shift
     will not be affected by extended work shifts, since the
     noise exposure will be measured for the entire shift. 
     Compliance will be based upon their measured dose.  If the
     measured dose exceeds 100 percent, the miner will be
     considered to be overexposed to noise.  
              Example, if a miner works eight hours at 90
     decibels, in compliance, then works an additional four hours
     at the same level, exposure would be calculated to eight
     hours plus the four by eight, which is 150 percent of the
     PEL and thus, sufficient to issue a citation, since it's
     greater than 130 percent of the PEL originally.
              The negative aspects.  We feel that although the
     proposed rule appears to provide clear improvements over the
     current noise standards, much of this is subverted by the
     lack of sound agency monitoring and enforcement
     requirements.  The most damaging aspect of the proposed rule
     is the fact that it is performance oriented, or, in other
     words, self-enforced by the operator.  The operator will be
     solely responsible for establishing a system of monitoring
     noise and taking appropriate action under the rules whenever
     they find themselves out of compliance.  The entire language
     of the rule consists of 14 words.  "Operator shall establish
     a system of monitoring, which effectively evaluates each
     miner's noise exposure," 62 120 at paragraph one.  
              Compare the regulations covering monitoring
     respirable dust.  Four pages on when, how, under what
     conditions and who does the sampling, and five pages on the
     sampling method.  Under these rules on respirable dust, mine
     operators have been perpetuating fraud for 25 years.  
              The proposed rule on monitoring noise is an
     invitation to abuse.  Furthermore, MSHA's role will be
     limited to taking their own measurements whenever they deem
     appropriate and checking the operator's records at the mine
     site for compliance.  I don't see many operators admitting
     they have a noise problem and self-imposing costly
     engineering controls.
              Under the proposal, the operator will no longer be
     required to report the results of their noise surveys to
     MSHA.  Instead, a record is maintained at the mine site and
     made available to the agents' authorized representatives. 
     The miners' representative will not have access to some of
     these records without written consent of the affected miner.
              The rule does not conform to recommendations by
     NIOSH.  The rule proposes to permit the operator to apply
     correction factor for presbycusis or presbyacousias acuity
     associated with aging, to the results of the audiograms,
     when determining whether a reportable hearing loss has
     occurred.  NIOSH recommended the presbycusis factor not be
     used, because the data on age related hearing losses
     described only the statistical distributions of populations
     and cannot be generalized to the presbycusis experience by
     an individual in the age group.
              The proposed rule sets a 90 decibel permissible
     exposure level, the level at which mine operators are
     required to use all engineering and administrative controls
     feasible to reduce noise.  However, MSHA admits that it's
     concluded that there's significant risk of material
     impairment from noise exposures at or above the threshold
     limit of 85 decibels.  The agency rationalizes that this
     could not require a PEL of 85 decibels, because it would
     require about two-thirds of the mining industry to use
     engineering and administrative controls to reduce current
     exposures, which would be too costly.  We strongly disagree
     with that.
              Under the proposed rule, whenever a miner's noise
     exposure exceeds the action level, the operator must provide
     training.  Although the agency strongly argues against
     including this training as part of Part 48 annual refresher
     training, the rule permits the operators to do so.  With all
     the training we have to cram into that eight hours now, we
     just don't think there's a sufficient place to put that.
              Interlaced throughout the preamble are breaks to
     small operators.  Some include a longer phase in period,
     consideration of economic feasibility of corrective actions
     for each operator and the possible redefinition of a small
     entity to include mines employing less than 500.  If that's
     going to be the definition of small operators, I don't think
     we're going to have two mines in the country that aren't
     going to have to fall under that.  Most of them have less
     than 500 miners.
              The proposed rule adopts a five decibel exchange
     rate.  NIOSH recommends, and most other industrial countries
     use a three decibel exchange rate.  The exchange rate is the
     amount by which loudness, measured as decibels, can be
     increased if exposure time is reduced to half.  For example,
     with a PEL of 90 decibels for eight hours, a five decibel
     exchange rate allows exposure to 95 decibels.  If exposure
     is reduced to four hours or half of eight, with a three
     decibel exchange rate, the time of exposure could be
     decreased to four hours, if loudness is increased to 93
     decibels.
              A three decibel exchange rate has stronger
     scientific foundation, is more protective and is used in
     other industrial countries, therefore, it is feasible. 
     Thank you, that's all I have.  Thanks for the opportunity.
              MR. THAXTON:  Thank you.
              The next speaker is Robert Dobie.
     
     
     
     
     
          STATEMENT OF DR. ROBERT DOBIE, CHAIRMAN, DEPARTMENT OF
     OTOLARYNGOLOGY, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER
     
              DR. DOBIE:  Mr. Nichols and committee, thank you
     for the opportunity to testify today.  My name is Robert
     Dobie.  I'm an otolaryngologist, a physician specializing in
     diseases of the ear, nose and related structures.  I'm
     chairman of the Department of Otolaryngology at the
     University of Texas Health Science Center in San Antonio. 
     I'm also chairman of the Medical Aspects of Noise
     Subcommittee of the American Academy of Otolaryngology Head
     and Neck Surgery, and a member of the Council on
     Accreditation and Occupational Hearing Conservation.            However, my testimony today reflects only my own
     views and not necessarily the views of those organizations.
              I want to apologize for coughing and throat
     clearing.  I'm just getting over a cold, so I'll ask your
     indulgence in that regard.  The substance of my comments
     will really be directed not so much to the MSHA proposed
     rule, as to the NIOSH draft criteria that came out last
     year.  The reason for that is that while the NIOSH
     recommendations have not been explicitly adopted in the MSHA
     rule, they are mentioned favorably, and also, there's a
     sense in the MSHA document that this NIOSH document might,
     once it ceases to be a draft criterion, to have greater
     weight with MSHA.  I suspect that other commentors, for
     example, Mr. Stevenson, who just spoke to you, may endorse
     some of the NIOSH recommendations.
              Really, the substance of my comments is to suggest
     that that document is seriously flawed, was offered to the
     community with inadequate time for response and really does
     not offer an appropriate basis for affecting your policy.
              My comments were given in detail in a letter I
     wrote March 27 to the MSHA office in Arlington, so I believe
     you have that.  I'm not going to read that into the record,
     because I assume it will become part of the record in some
     fashion, is that correct?
              MR. THAXTON:  Yes, it is.
              DR. DOBIE:  So, I'll just hit some of the high
     points.  The first point I would make is that the NIOSH
     document argues for an 85 dB time weighted average
     permissible exposure level, based in part on a criterion for
     hearing impairment that I think is inappropriate.  NIOSH
     used the pure tone average of one, two, three and four
     kilohertz as the basis for estimating hearing handicap. 
     This is an idiosyncratic choice.  It's one that is not in
     use in any state or federal jurisdiction that awards
     compensation for hearing loss that I'm aware of.  It was
     recommended by a committee report of the American Speech and
     Hearing Association several years ago, but that committee
     report never became a policy of that organization.  
              Again, I think it's an unusual choice.  It's one
     that's not justified in the literature, and no data were
     given that support the choice of that criterion for hearing
     impairment.  So, I think that's a serious problem with the
     NIOSH draft criteria.
              Based in part on that, NIOSH goes on to recommend
     an 85 decibel deviated time weighted average, with hearing
     conservation programs required for exposures above an 82
     deviated time weighted average.  
              Leaving aside the question of the definition of
     hearing handicap that went into that recommendation, I think
     there's a serious confusion here between standards and
     protection.  Just by making a standard stricter, one doesn't
     necessarily prevent more hearing loss.  It's my opinion,
     based on the thousands of workers with noise induced hearing
     loss that I've seen over the years, and based on talking to
     people who are active in managing hearing conservation
     programs, that when these programs fail -- or rather, when
     workers accrue noise induced hearing loss, it's usually due
     either to failure to run the program appropriately or, in
     some cases, there are industries, for example, that are not
     covered either by OSHA or MSHA or other federal regulators,
     and not due to the placement of the permissible exposure
     level.
              It's my belief that if one were to more adequately
     protect the people whose time weighted averages exceed 90
     dBA, one would, in a far more cost effective way, protect
     hearing than by reducing the permissible exposure level to
     85 dBA.  In that range between 85 and 90 dBA, the level of
     hazard is small.  Based on the recently adopted American
     national standard, and that, in turn, is based on an
     international standard from 1990, the amount of pure tone
     threshold shift in the speech frequencies at a time weighted
     average of 85 dBA for 40 years, is only about two decibels.
              As already has been commented, NIOSH has
     recommended a change in the exchange rate from five dB to
     three dB.  Again, I think that standards and protection are
     not always the same thing.  To begin with, the three dB
     exchange rate is not necessarily even more restrictive.  For
     short exposures and particularly highly time varying
     exposures, the three dB exchange rate will, indeed, end up
     labelling a larger, a higher time weighted average than
     would the five dB exchange rate. 
              But, the opposite is true for long shifts and it's
     already been commented this morning that ten to 12 hour
     shifts are common in this industry.  If you look at the
     graph that's on page 66352 of the Federal Register of
     December 17, 1996 in which the MSHA rule is proposed, you'll
     see that for exposures of eight hours or less, the three dB
     rule is, indeed, more restrictive or stricter than the five
     dB rule.  But, the graph stops at eight hours.  If you were
     to continue that graph on to ten, 12 and higher levels,
     you'd find that, in fact, the three dB rule is less
     restrictive.  In other words, the three dB rule will permit
     more exposure for long shifts than will a five dB rule.
              Another point to be made, which I think is even
     more important, is that I don't agree that three dB has
     superior scientific support in the literature.  The three dB
     rule has the advantage of being, from a scientific and
     engineering standpoint, attractive, perhaps even beautiful,
     because it simply says that the hazard level of an exposure
     is proportional to the total energy delivered, and that's an
     attractive concept. 
              But, when research has been done, while the
     optimal training ratio will vary from study to study, it's
     almost never three dB.  Sometimes it's three dB, sometimes
     it's five, sometimes it's eight.  As Dr. Jack Mills has
     commented, there's probably no one exchange rate that's
     right for every situation.  But, to simply say, then, that
     we use three dB because we don't know what the right rate is
     seems to me to fall far short of an appropriate rule making
     approach.
              I personally think that the evidence in favor of a
     protective effect of intermittency is so great that to
     accept a three dB rule will result in findings that are over
     restrictive, perhaps not overprotective, but at least over
     restrictive for short work shifts and time varying work
     shifts, and under restrictive and perhaps, underprotective,
     for those long shifts that are common in this industry, at
     least.
              The NIOSH document has labelling requirements or
     work place labelling requirements that I think are unusual
     and inappropriate.  They would recommend that your
     regulations require warning signs for every work place where
     a noise exposure would every exceed 85 dBA.  This could
     include, for example, a kitchen in which a garbage disposal
     was turned on for a few seconds, five or six times a day. 
     And, this is the sort of thing that makes these regulations
     subject to ridicule, subject to less respect, and less
     respect means, I think, poor enforcement.
              I think that in the NIOSH draft, they also
     recommend that workers should be required to wear hearing
     protection when their exposure exceeds 85 dBA, regardless of
     duration.  Again, to require that kitchen worker to either
     put on earplugs whenever the garbage disposal is turned on
     or even, perhaps, all day long, depending on you read the
     NIOSH draft, based on the requirement for assigned, saying
     use of hearing protectors required, is simply excessive.
              Moving onto another point, the NIOSH draft
     proposes that audiometric test rooms meet the requirements
     of ANCI S3.1, 1991.  This ANCI standard is the standard that
     we all use in clinical medicine and in audiology when doing
     our hearing tests.  It's important for clinical purposes,
     because it allows us to measure hearing levels down to zero
     dBHL, in other words, to be able to tell the difference
     between exceptionally good hearing and just good hearing. 
     That kind of audiometric ambient noise requirement would be
     nice to have in industry.  I just don't really think it's
     feasible.
              The American Academy of Otolaryngology Head and
     Neck Surgery for many years has recommended an intermediate
     standard.  I'll remind you, the OSHA standard permits
     ambient noise levels that are up to 22 decibels higher than
     the ANCI standard.  Our Academy for many years has
     recommended ambient noise level requirements that would be
     ten dBA less stringent than the ANCI standard and about ten
     dB more stringent, 10 to 12 dB more stringent than the
     current OSHA standards.  We think this would strike an
     attractive balance between feasibility and the desirability
     of measuring very sensitive thresholds.
              The NIOSH standard recommends that significant
     threshold shifts be defined in a different way.  Currently,
     OSHA and in your MSHA draft, as well, requires that a
     significant threshold shift, or actually, it's called a
     standard threshold shift, be required as an average change
     of ten decibels or more in either ear, for the pure tone
     average of two, three and four kilohertz.  I think that's an
     appropriate choice, and the suggestion in the NIOSH draft
     that an any frequency rule be used is, I think,
     inappropriate.  The any frequency rule basically says that a
     15 decibel change for the worse at any frequency, in either
     ear, when seen on two consecutive audiograms, be considered
     to be a real shift.
              There are a couple of problems with this
     definition.  The first is that while the authors of the
     unpublished manuscript that influenced the NIOSH draft
     tested the any frequency rules twice, they didn't test the
     pure tone average rules twice.  So, it wasn't a level
     playing field.  When pure tone average rules have been
     compared against any frequency rules in a comparable
     fashion, they've always outperformed them.  
              The second problem, and really the more
     troublesome problem, is that the definition of a true
     positive, in other words, a real shift for every rule
     tested, was simply self-defined.  In other words, if the
     definition of a shift being looked at was a 25 decibel
     change for the worst.  There had to be a subsequent 25
     decibel change for it to be counted as real.  Whereas, if
     they were going to look at something like a five decibel
     change, the subsequent test only had to reconfirm a five
     decibel change.  This is circular reasoning, and it leads
     really to a reductio ad absurdum, as we were taught in logic
     class.  If you take a very small shift like five decibels,
     you'll find that to be the best rule possible under this
     kind of analysis.
              The NIOSH draft proposes that confirmatory
     retesting within 30 days be required.  At present, OSHA
     permits companies to either do the retest or accept the
     annual test change as real.  I find it hard to understand
     why the employers couldn't continue to have that
     flexibility.  If the employers are willing to accept this as
     a real change, this could -- the only negative outcome of
     that could be that some workers whose changes weren't real
     would then be required to wear hearing protection devices,
     when they otherwise wouldn't be so required.  I don't see
     that as necessarily harmful.  I think employers should have
     that flexibility.
              Further, the NIOSH draft proposes that after every
     STS that's confirmed, the baseline be revised.  There are
     two problems with the way this is raised in the NIOSH draft. 
     The first is that it mandates revisions of the baseline when
     the hearing gets worse, and it says nothing about what to do
     when the hearing gets better.  Program supervisors, I think,
     need to have the flexibility to change baselines in some
     situations when hearing genuinely improves over what the
     baseline audiogram showed.
              Secondly, although the NIOSH draft endorses the
     otologic referral criteria that our Academy, the American
     Academy of Otolaryngology Head and Neck Surgery has
     recommended, and we appreciate that, the mandatory revision
     of baseline can lead to a very unfortunate situation in
     which a series of small shifts can accumulate, none of which
     are large enough to trigger referral guidelines, and a
     person could literally go deaf without ever having met the
     numerical or computer driven recognition of a referral
     criterion.
              To solve this problem, it is essential that when
     baselines are revised, that the initial baseline be retained
     for purposes of rules for outside referral to detect the
     serious problems, the serious medical problems that
     sometimes can occur.  We have to remember that not every
     hearing loss in industry is due to noise or aging.  Some are
     due to ear disease that requires treatment.
              The NIOSH document requires that whenever an STS
     occurs, the audiometric manager determine the etiology of
     that STS, taking all possible steps and considering all
     possible etiologies.  If I read that in a literal fashion in
     plain English, that goal can only be met by referring every
     worker who has an STS to an otolaryngologist or otologist
     for a work up which would probably include an MRI and lab
     tests and would probably cost over $1,000 per worker.  We
     don't think that's probably what was intended and certainly
     we don't think that's appropriate.
              We think that the referral guidelines that our
     Academy has recommended provide very appropriate guidelines
     for referral, and that this language of taking all possible
     steps to consider all possible etiologies probably should be
     changed, because, as a physician, I couldn't do that without
     spending an awful lot of money.
              The NIOSH draft does speak to the issue of age
     correction and recommends against age correction.  While
     there are some arguments against age correction in the
     current OSHA framework, for example, an age correction could
     lead to a worker not getting the additional fitting or
     refitting that he or she needs, because a loss that was
     really noise induced gets age corrected out and then doesn't
     meet the criterion for an STS.  
              The NIOSH proposal, if you'll recall, doesn't even
     call for a gray zone like we currently have between 85 and
     90.  The NIOSH document calls for no particular action to be
     taken upon finding an STS, other than reporting and
     determining the etiology.  In these instances, if you avoid
     some kind of age correction, granted, you can have an
     argument about what particular tables to use and so forth,
     but if you don't do age correction at all, you're going to
     end up grossly exaggerating the number of genuine noise
     induced shifts that occur.  When you evaluate hearing
     conservation programs, you're going to have a lot of errors
     you don't want to have.  
              A work place that has a lot of older workers will
     look worse than a work place that has a lot of younger
     workers, even though neither one may have any noise induced
     shifts.  If you want to compare hearing conservation
     programs from one work place to another, and if you want to
     look at the percentage of STS's that are reported, you know,
     you really can't do that, come close to doing that properly,
     without some degree of age correction.
              (Continued on next page.)
     
     
     
     
     
     
     
     
     
     
                   DR. DOBIE (Cont'd.):  -- the annual test change as
     real.  I find it hard to understand why the employers could
     not continue to have that flexibility.  If the employers are
     willing to accept this as a real change, the only negative
     outcome of that could be that some workers whose changes
     were not real would then be required to wear hearing
     protection devices when they otherwise would not be so
     required and I do not see that as necessarily harmful.  I
     think employers should have that flexibility.
              Further, the NIOSH draft proposes that after every
     STS that is confirmed, the baseline be revised.  There are
     two problems with the way this is phrased in the NIOSH
     draft.  The first is that it mandates revisions of the
     baseline when the hearing gets worse but says nothing about
     what to do when the hearing gets better.  Program
     supervisors, I think, need to have the flexibility to change
     baselines in some situations when hearing genuinely improves
     over what the baseline audiogram shows.
              Secondly, although the NIOSH draft endorses the
     otologic referral criteria that our academy, the American
     Academy of Otolaryngology and Neck Surgery, has recommended
     and we appreciate that, the mandatory revision of baseline
     can lead to a very unfortunate situation in which a series
     of small shifts can accumulate, none of which are large
     enough to trigger referral guidelines and a person could
     literally go deaf without ever having met the numerical or
     computer derived recognition of a referral criterion.
              To solve this problem, it is essential that when
     baselines are revised, that the initial baseline be retained
     for purposes of rules for outside referral to detect the
     serious problems, the serious medical problems, that
     sometimes can occur.  We have to remember that not every
     hearing loss in industry is due to noise or aging.  Some are
     due to ear disease that requires treatment.
              The NIOSH document requires that whenever an STS
     occurs, the audiometric manager determine the etiology of
     that STS, taking all possible steps and considering all
     possible etiologies.  
              If I read that in a literal fashion, in plain
     English, that goal can only be met by referring every worker
     who has an STS to an otolaryngologist or otologist for work-up, which would probably include an MRI and lab tests and
     would probably cost over $1,000 per worker.  We do not think
     that is probably what was intended and, certainly, we do not
     think that is appropriate.  
              We think that the referral guidelines that our
     Academy has recommended provide very appropriate guidance
     for referral and that this language of taking all possible
     steps to consider all possible etiologies probably should be
     changed because, as a physician, I could not do that without
     spending an awful lot of money.
              The NIOSH draft does speak to the issue of age
     correction and recommends against age correction.  While
     there are some arguments against age correction in the
     current OSHA framework -- for example, an age correction
     could lead to a worker not getting the additional fitting or
     refitting that he or she needs because a loss that was
     really noise-induced gets age corrected out and then does
     not meet the criterion for an STS.  
              The NIOSH proposal, if you will recall, does not
     even call for a gray zone like we currently have between 85
     and 90.  The NIOSH document calls for no particular action
     to be taken upon finding an STS other than this reporting
     and determining the etiology.  
              In these instances, if you avoid some kind of age
     correction, granted, you can have an argument about what
     particular tables to use and so forth.  But, if you do not
     do age correction at all, you are going to end up grossly
     exaggerating the number of genuine noise-induced shifts that
     occur and when you evaluate hearing conservation programs,
     you are going to have a lot of errors you do not want to
     have.  A workplace that has a lot of older workers will look
     worse than a workplace that has a lot of younger workers,
     even though neither one may have any noise-induced shifts.
              If you want to compare hearing conservation
     programs from one workplace to another, and if you want to
     look at the percentage of STSes that are reported, you
     really cannot come close to doing that properly without some
     degree of age correction.
              I only have a couple more points.  One is that the
     noise-reduction ratings for hearing protection devices are
     recognizably -- everyone realized that the current NRR that
     the EPA recommended years ago are not working very well. 
     They overstate real world protection and attenuation.  
              The recommendation in the NIOSH draft of arbitrary
     discounts for different types of protectors is, I think, far
     less convincing that the recommendations of a recent task
     force of the National Hearing Conservation Association.  The
     NHCA task force recommendations have been endorsed by
     American Speech and Hearing Association, American Academy of
     Otolaryngology, Head and Neck Surgery, the Council for
     Accreditation on Occupational Hearing Conservation, the
     Acoustical Society of America and virtually every relevant
     professional organization has recommended to the EPA that
     they adopt these NHCA recommendations.  I would make the
     same recommendation to MSHA, that there is now a better way
     to provide a real world estimate for hearing protection
     device attenuation.
              Finally, the NIOSH draft would permit only
     technicians and audiologists to perform hearing tests.  I do
     not believe that physicians should be excluded from that
     role in the occasional instance when a physician would find
     it appropriate to carry out the hearing test themselves. 
     And, in addition, the role of audiometric program supervisor
     presently permitted by OSHA to be played by any audiologist
     or physician is recommended by NIOSH to be limited only to
     otologists, occupational physicians and audiologists.  I
     think that is inappropriate.  
              An otologist, for the sake of discussion, is an
     otolaryngologist who limits his or her practice just to
     diseases of the ear.  My own practice, for example, is
     limited in that way.  But there are many otolaryngologists -- ear, nose and throat physicians -- who are highly
     competent to manage these types of programs and I do not
     think this should be limited to physicians who treat only
     ear diseases.
              Well, I thank you for the opportunity to discuss
     these matters with you today and I would be more than happy
     to respond to any of your questions.
              MS. PILATE:  I have two questions.  How long does
     it take to give a basic otological exam?
              DR. DOBIE:  Well, in my office, you mean.  Not in
     the workplace, but in the physician's office.
              Are you excluding the audiometric part of it? 
     Because most of these stations, if they come from a hearing
     conservation program to my office, we will usually -- in
     fact, just about always -- conduct a clinical audiogram as
     well because the audiograms that are done in industry are
     not quite as good in a couple of important respects as the
     ones we get in the office.  Do you want to exclude that or
     include that?
              MS. PILATE:  That was the second question.  How
     long does it take to give an audiometric exam?
              DR. DOBIE:  If the worker is reasonably
     straightforward, and most of them are, the audiometric
     evaluation we do is going to take 15 minutes or so -- 15 or
     20.  I am kind of surprised to hear people say this morning
     that the audiogram in the workplace takes the same amount of
     time because it is a much more limited kind of a test in the
     workplace.
              In my evaluation for a new patient from an
     occupational hearing conservation program, usually if it is
     not a compensation case, if it is just a referral out of the
     hearing conservation program because, "Doctor, we found a
     shift.  We do not know what the shift is due to," 15 or 20
     minutes.  If it is a compensation case, it is often going to
     take longer.
              MR. VALOSKI:  I would like to ask you a question.
              DR. DOBIE:  Yes.
              MR. VALOSKI:  You said the qualifications for
     people to conduct the audiometric test program, you would
     like to expand it to include otolaryngologists in that. 
     Would you restrict it to the physicians who have specialized
     in otolaryngology, otology and occupational medicine and
     leave the general practitioners as being unqualified to
     conduct the programs?
              DR. DOBIE:  I do not think I would make that
     restriction.  I think that there are many physicians
     overseeing occupational health programs who are family
     physicians and yet I think do a very good job of it.  
              This is a little off the subject, but the CAOC,
     the Council for Accreditation in Occupational Hearing
     Conservation, CAOC is preparing, within the year, to offer
     our first program supervisor course and we expect that
     occupational physicians and family physicians will be the
     people most interested in that.  I will tell you that a
     family physician who took that course would, in my opinion,
     be better qualified to supervise such a program than the
     average occupational physician.  So, I think it ought to be
     case by case.  If it was my rule to write, I think I would
     write it the way OSHA does -- audiologist or physician.  I
     would like to see a time when these program supervisor
     courses would become widespread and I do think that the role
     of the program supervisor is one of the real weak links in
     the hearing conservation programs as now mandated by OSHA.
              MS. PILATE:  I have two more questions.  Were you
     finished?
              MR. VALOSKI:  Yes.
              MS. PILATE:  For the basic otological exam, MSHA
     estimated that to cost, on average, around $250 per exam. 
     Does that agree, basically, with what you charge?
              DR. DOBIE:  Well, I do not know.  It really is not
     going to be highly variable.  But I can tell you that for
     workers who are referred to me from a hearing conservation
     program in a non-compensation setting, because that is an
     important difference, it would not be that much.
              MS. PILATE:  Can you give us a basic idea of how
     much you would charge for a screening audiometric exam?
              DR. DOBIE:  Well, we do not do in the office very
     many screening exams.  The only screening exams we do --
     well, the only screening tests we do in our office are on
     the noise-exposed workers of the hospital, per se.  And they
     send them over to our office because we are there.  And I
     think we charge 25 bucks for a pure tone audiogram and the
     physician does not even see the patient.  It is the
     audiologist.
              We, essentially, are providing the same kind of
     hearing -- I would call it monitoring audiometry, rather
     than screening audiometry.  And it is the same kind of
     audiometry that you are thinking about and that OSHA
     requires is pure tone audiometry on an annual basis.  Again,
     we charge $25 a head.  I am sure we are not terribly cost-effective because we do not do a high volume of those.
              MS. PILATE:  Thank you.
              MR. CUSTER:  In regard to the audiometry that you
     do, do you have your clients, your subjects, adhere to the
     14-hour quiet period, or do you prefer that to be done?
              DR. DOBIE:  Well, in a compensation setting, we
     are extremely strict about that.  And, in fact, I really
     would require a longer period of time.  But you are not
     really asking about the compensation setting, I think, as
     much as the -- you know, there are two ways that we see
     workers in our office.  
              One is in a compensation setting and the other is
     a referral from a hearing conservation program when they
     have detected a baseline shift or an asymmetry or something
     like that.  And, in that latter case, we do, indeed, want
     them to be free of noise when we do our clinical tests.  But
     I will interject that in the hearing conservation program
     itself, there are arguments being made pro and con.  
              Some people think that it is better not to make
     that requirement because then you will actually catch the
     temporary threshold shifts and have an early warning of
     trouble to come, and others will argue for the added
     reliability of requiring the quiet period so the data is
     cleaner.  So, you can have that debate.  But in the clinical
     setting, we would always require it, yes.
              MR. THAXTON:  Okay.  Thank you.
              Our next speaker is Dave Hutchinson.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF DAVE HUTCHINSON,
     FMC / SOUTHWEST WYOMING SODA ASH PRODUCERS
     
              MR. HUTCHINSON:  I am Dave Hutchinson with FMC,
     but today I am representing the Southwest Wyoming Soda Ash
     Producers, H-U-T-C-H-I-N-S-O-N.
              Members of the committee, thank you for allowing
     me to address you.  Soda Ash Producers are made up of five
     companies.  We are FMC, OCI, General Chemical, Solvay
     Minerals and Tg Soda Ash.  Each of these producers operates
     an underground room and pillar mine and surface processing
     facilities.  Employment is approximately 3,600 people.  We
     are committed to improving the miner's safety and hope you
     find our suggestions helpful.
              I would like to voice our support for the comments
     submitted by the Wyoming Mining Association.  We are members
     of the group and have shared our concerns and questions
     about the proposed standard with them.  
              I will not reiterate all the written comments we,
     the Soda Ash Producers, have made, but instead focus on a
     few high points.
              Past experience, particularly in the guarding
     standards, raises some concerns when the inspectors have a
     large degree of freedom.  In the past, we have changed
     machine guards on a quarterly basis to abate citations. 
     What one inspector is satisfied with, another is not.  Our
     concern in the proposed standard are the phrases, "feasible
     engineering controls" and "ensure."
              We request that MSHA provide an interpretation of
     "feasible engineering controls."  We suggest that MSHA
     should retain and state that "feasible" means significant,
     such as the 3dBA reduction that has been used in metal and
     nonmetal mines.  As the proposed standard is written, any
     reduction, no matter how small, would have to be
     implemented.  We feel that this is unwarranted.
              The Soda Ash Industry also requests that MSHA
     include in the rule-making process a guidebook for noise-reduction controls.  This was part of the Metal/Nonmetal
     Program Policy at one time.  We believe that the guidebook
     should go through the rule-making process so industry may
     have input into its development.  This guidebook should be
     developed in conjunction with the noise standards.
              We request that a definition of "ensure" be
     included.  We do not understand what lengths an operator
     must go to to "ensure" a miner complies with the standard. 
     Another concern is that an operator would be cited for each
     miner that is caught by an inspector not complying, even
     though the operator has provided and required the use of
     appropriate measures.  An operator should make good faith
     efforts, which would include the required training,
     providing enough and a choice of hearing protection, and
     requiring a miner to comply with the MSHA standard.  If a
     definition is not possible, we suggest that "ensure" be
     replaced by "require."
              We also request that the standard incorporate
     allowances for new technology.  One area that is in its
     infancy is noise-cancellation technology.  Would this be
     viewed as engineering controls?  The Soda Ash Industry
     believes that it would be.  
              The Soda Ash Industry would like to see allowances
     for hearing protection and determination of a miner's
     exposure expanded to the rest of the mining industry, as the
     coal standards presently do.  The goal is to prevent
     occupational noise-induced hearing loss.  Allowing the use
     of hearing protection would accomplish this while reducing
     the economic burden on the industry.  If a miner's noise
     exposure exceeds the action level or PEL with the use of
     hearing protection, then engineering and administrative
     controls should be used.  Also, much of the equipment used
     in mining, milling and refining is not manufactured to meet
     any noise limitations.  Until more work is done by the
     manufacturers in eliminating noise at the source, add-on
     controls would be difficult to develop.  The manufacturers
     are in the best position to do that research.
              As proposed, Section 120(a)(3)(i) would not take
     into consideration wearing hearing protection.  We suggest
     that that section be reworded to:  Adjusted to account for
     the use of hearing protection.  In Section 120(b)(2), a
     miner is required to be provided with hearing protection and
     the operator to ensure that the miner wears it.  In the
     sentence, "Moreover, the operator shall, with respect to any
     miner enrolled in such program, provide hearing protection
     in accordance with the requirements of Section 62.125 until
     such time as a baseline audiogram has been obtained," MSHA
     recognizes that hearing protection is an effective method of
     protecting a miner's hearing.
              Sections 120(b)(1) and 190(a) address time
     intervals for the operator to take specified actions.  We
     request that the time intervals be increased to allow the
     operator greater flexibility in meeting the actions.
              Section 120(b)(1) requires the miner to receive
     training at the time noise exposure exceeds the action
     level.  We agree with the need to initially inform and train
     the miner in a timely manner but "at the time the exposure
     exceeds the action level" could mean the same shift.  We
     suggest that a reasonable amount of time be allowed for this
     training to take place, 30 calendar days.  This would allow
     the operator to schedule the training, possibly training
     several miners at the same time, without unduly affecting
     operations.  We believe this will still accomplish the goal
     of the section but allow operators flexibility in scheduling
     the training.
              Section 190(a) requires the miner to be notified
     within ten days.  We suggest the time period for
     notification also be extended to 30 days.  This will allow
     time to collect all pertinent data, have the proper
     personnel involved and allow time for scheduling, such as
     vacations and things like that.
              Section 120(d) addresses the requirement for dual
     hearing protection.  We believe this requirement should be
     deleted.  As written, dual hearing protection would be
     required at a TWA8 of 150 dBA.  Typically, hearing
     protection has an NRR of the mid-20s to the low 30s.  The
     addition of a second layer typically adds only three or four
     decibel reduction.  Wearing only a single layer of
     protection would lower a miner's exposure to below the PEL. 
     We ask that this section be deleted.
              Another concern is the lowering of the ceiling
     level to 115 dBA.  Section 120(e) states:  "At no time shall
     a miner be exposed to sound levels exceeding 115 dBA."  This
     does not take into account allowance for impact or impulsive
     noises.  Current metal/nonmetal rules and OSHA address this. 
     We suggest that the existing metal/nonmetal language be
     retained.  At no time shall a miner be exposed to sound
     levels exceeding 115 dBA.  Impact or impulsive noises shall
     not exceed 140 dB, peak pressure level.
              Another are of ambiguity is Section 120 (f)(1). 
     This section reads, "Operators shall establish a system of
     monitoring which effectively evaluates each miner's noise
     exposure."  Our concern is this could be interpreted to mean
     that each and every miner would need to be monitored.  We
     believe the intent is to have an effective and timely method
     to evaluate a miner's exposure.  In most cases, sampling by
     job classification would provide an acceptable evaluation. 
     MSHA has stated that this section is to be performance-oriented and we support that principle.  We suggest this
     section be revised to read, "Operators shall establish a
     system of monitoring which effectively evaluates miners
     noise exposure."  By eliminating the word "each" and making
     miners plural, not possessive, the goal would be achieved
     and make the section more performance-oriented.
              As proposed, Section 140(b)(2) requires the miner
     to have at least 14 quiet hours before a baseline audiogram
     is taken.  The use of hearing protection is prohibited.  The
     Soda Ash Industry believes that not allowing for the use of
     hearing protection during this quiet period is too
     restrictive.  Typically, hearing protection has an NRR of
     the mid-20s to the low-30s and this would provide the miner
     with protection prior to an audiogram.  OSHA allows the use
     of hearing protection during this quiet period per
     1910.95(g)(4)(3).  "Testing to establish a baseline
     audiogram shall be preceded by at least 14 hours without
     exposure to workplace noise.  Hearing protectors may be used
     as a substitute for the requirement that baseline audiograms
     be preceded by 14 hours without exposure to workplace
     noise."  We suggest that this language be included in the
     MSHA standard.
              Thank you for the opportunity to address you.  By
     working together, we can develop a set of regulations that
     increase miners safety while allowing industry flexibility
     to develop new solutions.  MSHA's standards have been
     performance-oriented and we look forward to the new
     standards being the same. 
              MR. THAXTON:  Thank you.  
              MR. VALOSKI:  I have a question for you.  Back at
     the beginning, you suggested that we change the word from
     "ensure" to "require" the miners to comply with the wearing
     of hearing protectors and training and audiometric testing
     and that.
              MR. HUTCHINSON:  Yes.
              MR. VALOSKI:  If the miner did not comply, what
     would be MSHA's alternative?
              MR. HUTCHINSON:  We believe that the operator
     should take all the appropriate steps in having an effective
     hearing conservation program and protecting the miner.  But,
     at the same time, at our operation and some of the other
     operations, we have problems with getting people to wear the
     PPE.  We require safety glasses, hard hats and, in certain
     areas, hearing protection be worn but, still, some miners
     make the choice not to wear that.  We do not feel that an
     operator should be cited if they have taken good-faith
     efforts, made everything available, and the individual at
     that time has chosen not to wear the equipment.
              MR. POWASNIK:  Excuse me.  What do you do when a
     miner decides not to wear some other type of personal
     protective equipment?
              MR. HUTCHINSON:  Depending upon what happens --
              MR. THAXTON:  Excuse me.  Can you stay close to
     the microphone.
              MR. HUTCHINSON:  Excuse me.
              Depending upon what happens, the operator may
     enter our discipline system.  Typically, it remains at a
     coaching and counseling stage.  I do not know of any PPE-type infractions that have gone past that.  Usually, the
     foreman just reminds the person to put it on.  They put it
     on and that is the end of it.
              MR. VALOSKI:  By using the word "require," are you
     wanting MSHA to put some requirements on the individual
     miners?
              MR. HUTCHINSON:  No.  That was not our intent.
              MR. VALOSKI:  Okay.
              MR. THAXTON:  If you are advocating that you would
     prefer personal hearing protection to be the primary means
     of control, wouldn't you agree, then, that the operator
     should require the use of that as the means of control, if
     you have noise problems?
              MR. HUTCHINSON:  If I understand your question,
     yes.  If we do have an area that exceeds, if the proposed
     standard goes through, 85, then hearing protection should be
     required.  At 90, hearing protection, we believe, would
     still be required but engineering controls would not be
     implemented unless the noise levels were so great that
     personal hearing protection could not protect the miner.
              MR. THAXTON:  But you were saying that you do not
     want us to require that miners wear the hearing protection,
     that you would not be cited as the operator if we found
     miners not wearing the personal hearing protection.  If they
     are then being exposed to noise levels that are greater than
     the standard allows, why would we not take action then to
     protect that miner's hearing?
              MR. HUTCHINSON:  Some of the cases that we have
     dealt with, we have had a hard time getting individuals to
     comply with existing standards -- tie off, things like that
     -- where the operator is cited because an individual makes a
     personal choice at that time.  And that was what the thrust
     of my comment was is that if the operator provides the
     equipment, provides the training, requires the company
     policy and through actions and the individual still
     determines that they do not want to do it, we do not feel
     that the operator should be held liable for that person's
     actions at that time.
              MR. THAXTON:  But would not it be the same as a
     miner that, say, goes out from under a supported roof?  That
     is not a condition that the mine operator condones.  But if
     we determine that a miner is doing that, we are going to
     cite the mine operator because you have control over your
     people.
              MR. HUTCHINSON:  To a degree, we do.  That is
     another case where, in principle, we do not believe that the
     operator should be held liable for that person's decision at
     that time.  Presently, the operator is.  We just received a
     citation for one of our people not wearing a safety belt at
     a height and company policy, training and everything
     requires tie off.  But that person made the decision.
              MR. THAXTON:  Okay.  Thank you.
              MR. HUTCHINSON:  Thank you.
              MR. THAXTON:  Let's take a 15-minute break.  It is
     two o'clock.  We will be back in session at two-fifteen.
              (Whereupon, a short recess was taken.)
              MR. THAXTON:  Okay.  If everybody is ready, we
     would like to get the hearing started again.  If everybody
     will please take a seat.
              Our next presenter will be Randy Tatton.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF RANDY TATTON, INTERWEST MINING COMPANY
     
              MR. TATTON:  Good afternoon.  I appreciate the
     opportunity to address the group today on this proposed
     rule, the health standards on metal coal mines and coal for
     noise exposure.
              MR. THAXTON:  Excuse me, Randy.  Could you spell
     your name and state your affiliation?
              MR. TATTON:  Yes.  My name is Randy Tatton, R-A-N-D-Y   T, like Tom-A-T-T-O-N.  I am the manager of health and
     safety at Interwest Mining Company.  We are a Utah-based
     firm that operates and manages mines in the western United
     States, both coal and both surface and underground.  We are
     also faced with the responsibility for the protection of our
     employees against industrial noise-induced hearing loss.
              We have submitted written comments to the Agency,
     but I want to address a couple of specific provisions in the
     proposed rule today.  
              First, and probably foremost, Part 62123(i)
     requires that miner's noise exposures measurements shall not
     be adjusted on the account of the use of any hearing
     protector.  Part 62120(c)(1) requires that when a miner's
     noise exposure exceeds the PEL, that the operator use all
     feasible engineering and administrate controls to reduce the
     minor's noise exposure to the PEL.  If these two provisions
     become part of a final regulation, our operations will be
     dramatically impacted.  
              Our experience shows that many of the essential
     processes at our mining operations generate noise that is
     very difficult or impossible to suppress with engineering
     controls.  Very often, it even becomes very difficult to
     locate the noise source in the areas where a lot of
     different noise-generation sources are present.  Some
     examples are -- long wall and continuous mining methods in
     our underground mine, our work areas and drag lines, shovels
     and preparation plant at our surface mining operations. 
     Also, noise adjacent to air-arcing operations in our shops
     also presents a very unique and difficult noise-generation
     source to control.  
              If this proposal, in our mind, is not changed to
     allow credit for the use of hearing protectors and noise-generation sources cannot be controlled with the use of
     feasible engineering controls or administrative controls,
     there is really no means to comply with the regulation, nor
     is there a means to abate a violation.
              Secondly, in the context of this proposed rule,
     what really is the definition of "feasible"?  How many
     dollars must be spent for engineering controls and what
     corresponding reductions in noise-generation levels
     constitute feasibility?  How many workers is it feasible to
     rotate through job functions where high noise levels are
     present?  These are only a couple of questions that will
     surround the ambiguous term, "feasible," and, unless well
     defined or changed, it will certainly generate very
     expensive and non-productive litigation.
              Let me talk a little bit about a project that is
     in progress at one of our surface mining operations that
     really demonstrates some of our experience with typical
     noise-abatement efforts.  High noise levels were present in
     the immediate vicinity of two blowers located in our
     preparation plant.  The blowers were enclosed in noise-insulated metal housings in an attempt to reduce the noise
     levels there.  The overall cost of that initial project was
     $13,988.  As a result, the noise levels in the immediate
     vicinity of the blowers were reduced by about 3dBA.  The
     level of reduction in the area where the workers spend the
     majority of their time was really insignificant and almost
     unmeasurable.
              We are now having problems with the motors and the
     blowers heating up.  We presently have a contract in place
     to provide additional cooling capacity for an additional
     cost of $12,517 to resolve that problem.  So, in essence, we
     are going to spend about $27,000 and really, as far as we
     can see, there is no significant health benefit to the
     workers in that area.  And, also, these employees are
     required to wear hearing protection whenever they work
     inside of that plant.
              Third, Part 6283(ii) requires that all noise from
     AD dBA to 130 be integrated into sound levels during the
     miner's entire work shift and this presents a real problem
     that is unfair to operators with work shift schedules that
     exceed eight hours.  Noise at the 85 dBA level is really not
     harmful and it will be included in the dose reading and
     could subject operators to possible citations and activity
     required by Part 62120(b) when an action level is exceeded.
              We hope that the Agency will reconsider the issues
     that we have discussed.  It is clear that this rule-making
     was developed using present OSHA rules as a model, but it
     has some very significant and critical changes.  We suggest
     that the OSHA standard be followed even more closely and
     that standard serves to protect the vast majority of the
     workers in the country and it really should not be any
     different, in our mind, for our nation's miners.  
              Thanks for the opportunity to be here.  This
     concludes my comments for today.
              MR. THAXTON:  The next speaker is Gordon Brannon.
     
     
     
          STATEMENT OF GORDON BRANNON, BIG SKY COAL COMPANY
     
              MR. BRANNON:  Good afternoon, ladies and gentlemen
     of the panel.  My name is Gordon Brannon, G-O-R-D-O-N 
     Brannon, B-R-A-N-N-O-N, and I am the safety manager from Big
     Sky Coal Company in Big Sky.  Big Sky is located around Coal
     Strip, Montana, which has a population around 4,500 people
     in that town, and it is located in the southeastern part of
     the state about six miles south of Coal Strip.  Big Sky
     employs about 125 people at the mine and we mine about 5.2
     million tons per year right now.  Big Sky has been mining
     there since 1968 in that area and I have worked there since
     1973.  I have been working in the field of safety since 1968
     and I have been with Peabody Holding for 25 years.  
              After looking at these proposals, Big Sky
     management believes that the MSHA-proposed noise regulations
     would be a hardship on the mine and recommends MSHA on using
     the OSHA hearing conservation program as a model for their
     regulations.  Big Sky supports the hearing conservation and
     protection and believes the use of PPEs, personal protective
     equipment, hearing protection, is an integral part of our
     program.  We do not support MSHA's proposed rule changes
     because the number of people at risk is small; the PPEs
     offer adequate protection for the at-risk group; engineering
     controls, especially at the mine, running with 30-year-old
     trucks like we have and 50-year-old drag lines, would be
     costly and probably ineffective.  If our equipment cannot be
     brought up to compliance with the new rules, we cannot
     justify new expensive equipment and the result may be
     closing of our mine.
              At the present time, Big Sky has about 103 union
     personnel there and we have about 22 companies.  Seventy-two
     employees are wearing hearing protection and 55 workers are
     using it daily and faithfully.  Big Sky Coal Company
     believes in the use of PPEs.  We use Desidents -- those are
     ear plugs; Max, which are ear plugs; the 3M-1100, which are
     ear plugs; and Bilson Viking 29 ear muffs.  The majority of
     the workers like the foam-type disposable ear plugs and
     prefer Desidents by North.  The ear plug boxes are located
     in all working areas for easy convenience for our employees
     to get them and we place them down by our drag lines.  We
     have two drag lines, a 1260 and a 1700.  We place them in
     the warehouse where they can get them, the shop, the tipple,
     the preparation plant and load-out facility that we have. 
     Also, the bath house.  Big Sky has never had a worker's
     compensation claim on noise and a noise injury.  
              Right now, we have really been concentrating on
     courts and dust standards so all of our equipment at the
     mine, we have been sealing our cabs and weatherstripping and
     changing the doors and hinges on them.  And this has really
     helped our noise, probably, quite a bit, too.  But I do not
     think that our equipment will comply with the new
     regulations.  Almost all of our equipment at our mine is
     really old.  We have a D-9 dozer, D-10, and D-9Ls, and they
     range from 1984 to 1988.  We have some 637 D and E scrapers. 
     They are 1978 through 1987s.  We have three 992 front-end
     loaders.  They are 1986 models.  Our 1260 drag line is a
     1980 model.  Our 7800 drag line is a 1947 model.  And what
     we are concerned about our drag lines is inside the house
     and whether they would comply.
              Also, our tipple structure and our load-out
     facility -- our tipple structure is a 1968 and right now,
     anybody working in that facility almost has to wear ear
     plugs.  There is almost no way to quiet the facility down.  
              Big Sky has talked to Caterpillar and
     representatives from Caterpillar about maybe complying with
     the law.  They were suggesting maybe putting lead flooring
     down on our mats; sealing our cabs, you know, a little
     better; more soundproofing in the cabs and replace the
     doors.  This might help it, but there is no guarantee.  We
     could spend all this money and still cannot get it in
     compliance.  We also have 150-ton Remple haul trucks and
     they range from 1972 to 1975 models.  
              Big Sky did contact a manufacturer that supplies
     parts for our drag lines.  They did say they could give us a
     covers for our sets, but they are pretty expensive.  And
     they do not even know whether they would reduce the noise
     and whether we would be in compliance in our house because
     we still have the gear cases.  They still cannot be reduced
     to noise.
              I have heard numerous occasions of MSHA technical
     service reports which document numerous cases where operator
     utilization of engineering controls has failed to achieve
     compliance with the 90 dBA permissible exposure limit.  
              In conclusion, Big Sky management would like MSHA
     to support the OSHA hearing conservation program as the
     model for their regulations and believes that the PPEs are a
     necessary and essential part of our overall noise compliance
     program and that MSHA must recognize their successful use.  
              One last thing.  I was sitting in my bedroom last
     night and on the NBC Nightly News a special came on and it
     was on why are so many Americans losing their hearing.  One
     of the things they pointed out was you go outside and play. 
     That is about 60 dBA.  You got out and use your lawn mower
     or weedeater, that is about 90 dBA.  You go turn your
     television on and, if you have a home feeder on it, that is
     about 75 to 90 dBA.  Your children, they do have toys out
     there that are way over the permissible level.  Teenagers
     are listening to music and stereos.  So, to make a long
     story short, they were saying ten percent of our young
     children have hearing losses in the United States.
              The U.S. is a technological society.  At homes,
     they have appliances, computers, machines.  A lot of people,
     after they leave work from our place, they go to nightclubs
     and listen to music there, concerts, which are loud.  Loud
     stereos in their cars and homes.  A lot of people shoot guns
     and do not wear hearing protection.  A lot of them like game
     hunting.  They like black powder.  They like to trap shoot. 
     Also, they do a lot of operating equipment at home and, as
     far as, they run jet skis, snowmobiles, motorcycles and
     boats.  
              The United States is a technological society.  We
     are not a non-technological society.  And, like the special
     said on television, non-technological societies have a
     lesser noise problem than the technological societies do.  I
     believe, and at the end of the show they said, the
     prevention of this is to wear ear plugs.  That was the main
     gist of the whole program.  Or change your lifestyle, which
     is kind of hard.  If you are in a working environment, you
     pretty well much have to work in that environment and do
     that job.  But wearing hearing protection, I think, is the
     answer right now.
              Thank you.
              MR. CUSTER:  Sir, do you conduct audiometric
     testing of any of your employees?
              MR. BRANNON:  We are starting that in the near
     future.
              MR. CUSTER:  You do not do any now.
              MR. BRANNON:  Only time we do that is if we hire a
     new employee.
              MS. PILATE:  You made a very general statement
     that these regulations could quite possibly drive your
     organization out of business.  Do you have any data to
     substantiate that?
              MR. BRANNON:  I can get that for you.
              MS. PILATE:  Okay.  And, if you would, in that
     report that you are going to submit, attach any receipts or
     -- I do not want to go so far as to ask for IRS data -- but
     anything of that nature that is not confidential.
              MR. BRANNON:  Okay.
              MS. PILATE:  Thank you.
              MR. THAXTON:  Gordon, you listed an awful lot of
     equipment that was old and you said it does not meet the
     standard.  It would not meet the standard.  The standard is
     not changing.  Are you indicating that your equipment at
     this time does not meet the 90 dB standard?
              MR. BRANNON:  It could be, probably, right on the
     borderline.
              MR. THAXTON:  So, if it is on the borderline, it
     is meeting the 90 --
              MR. BRANNON:  Right.
              MR. THAXTON:  So, the new standard is not going to
     effect --
              MR. BRANNON:  Right now, we have not had any
     citations by MSHA.  But if they do lower it and they do not
     require personal protective equipment, we might not be in
     compliance.
              MR. THAXTON:  On your surveys that you conduct
     every six months, are you reporting that anybody is exposed
     to over 90 dB?
              MR. BRANNON:  We have not had anybody essentially
     over 90 dBA.
              MR. THAXTON:  Now, you realize our rule does not
     allow you to consider personal hearing protection in that
     calculation.  So, if it is over 90, whether they are wearing
     hearing protection or not, you still have to report it.  So,
     you have not reported 90 dB or greater exposures for your
     people, that you know of.
              MR. BRANNON:  Well, right now, we do not have
     anybody over 90.
              MR. THAXTON:  Okay.  So, the new rule would not
     really affect you, except for the people that are above 85.
              MR. BRANNON:  Right.
              MR. THAXTON:  Okay.
              MR. VALOSKI:  I will ask a question.  You said you
     have all these old pieces of equipment.  What do you have on
     them?  Do you have cabs and what-not?
              MR. BRANNON:  Right.
              MR. VALOSKI:  Are they just running with rods?
              MR. BRANNON:  They're running with cabs.
              MR. VALOSKI:  Do they have mufflers?
              MR. BRANNON:  Yes, they do.
              MR. VALOSKI:  And you do not think you can get
     them in compliance.
              MR. BRANNON:  If they lower the standard, no.  And
     if they do not recognize personal protective equipment. 
     Every time we have been tested, we have been okay.  But if
     they do not require personal protective equipment and if
     they did, let's say, test a little bit over, we would be out
     of compliance.
              MR. THAXTON:  Okay.  Thank you.
              The next speaker is Bob Payovich.
     
     
     
     
     
     
     
          STATEMENT OF BOB PAYOVICH
     
              MR. PAYOVICH.  I do not have any comments.
              MR. THAXTON:  Next is Melinda Pon and Company.  I
     understand she has three people but I only have her name on
     the list.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF MELINDA PON, BHP MINERALS
     
              MS. PON:  This is usual here.  
              Good afternoon, Chairman Nichols, Moderator
     Thaxton and members of the MSHA Noise Hearing Panel.  BHP
     Minerals appreciates this opportunity --
              MR. THAXTON:  Excuse me.  Could you spell your
     name and --
              MS. PON:  Alas, you jump ahead.  I will.  I will
     get to that.
              BHP Minerals appreciates this opportunity to
     participate in the MSHA public hearings on the proposed
     noise rule.
              Today, we would like to highlight some of our
     concerns regarding the proposed noise rule and to provide an
     overview of our experience with hearing conservation at BHP
     Minerals.  I am Melinda Pon, M-E-L-I-N-D-A, Pon, P-O-N,
     manager of occupational and environmental health for BHP
     Minerals based in San Francisco.  With me here today in the
     audience is Bert Wisner, safety and health supervisor; Larry
     Jim, industrial hygiene technician; and Daisy Bejay,
     occupational nurse.  Bert, Larry and Daisy work at San Juan
     Mine's New Mexico operations and we will refer to this as NM
     or NMO.
              Larry is qualified by MSHA to conduct and report
     on noise sampling for the NMO.  Daisy is currently certified
     by the Council for the Accreditation in Occupational Hearing
     Conservation, or CAOC, to conduct audiometric testing and
     has been conducting our audiometric evaluations since the
     mid-1970s.
              BHP Minerals is an operating group of Broke and
     Hill Proprietary Company, Ltd. and operates three surface
     coal mines, large surface coal mines, in the Four Corners
     areas of New Mexico.  In 1957, the Navajo nation granted the
     original mining lease to Navajo Mine and in 1960, Utah
     International signed a contract with the Arizona Public
     Service Company to supply water and coal to the Four Corners
     power station outside of Farmington, New Mexico.  Coal
     deliveries began at Navajo in 1963 and, later, Utah
     International went on to open and operate surface coal
     operations at San Juan Mines and La Plata Mines located west
     and north of Farmington, New Mexico, respectively, to supply
     coal to the San Juan generating station.  BHP purchased Utah
     International in 1984.
              Today, our New Mexico operations have a workforce
     of 976 employees.  Eighty-seven percent are Navajo and they
     hold many supervisory, production and technical positions. 
     Last year, we sold 14 million tons of bituminous coal using
     drag lines at Navajo and San Juan and truck and shovel at
     all three mines.  
              BHP Minerals is proud of our commitment to protect
     the health and safety of our employees.  San Juan Mine and
     its employees are proud recipients of the Sentinels of
     Safety Award.  We have developed and implemented many safety
     and health initiatives in our quest for continuous
     improvement.  We have an excellent relationship with our
     employees and work well with our unions in addressing their
     concerns.  We recently embarked on Zia Quest, the NMO
     Occupational Safety Health and Environmental Program
     implemented at our operations.  Part of the program is
     predicated on the National Occupational Safety Association
     Program in South Africa that we have adopted and implemented
     throughout all of BHP Minerals.  And BHP Minerals operates
     40 some odd operations around the world.  The remainder is
     made up of those processes that have made NMO a world leader
     in safety.  
              We commend MSHA for proposing the uniform health
     standards for occupational noise at all mines.  We
     appreciate MSHA's attempt, in explaining the rationale for
     the proposed rule in the 110-plus pages of the preamble.  We
     recognize the important intent of this proposed rule as
     stated in the preamble and agree that our miners should not
     suffer any material impairment to health and safety from
     exposure to industrial noise, and the emphasis here is on
     industrial noise.  
              While the nature of this rule is performance-based, we are puzzled at the outset why MSHA chose to
     provide no to little guidance in certain areas and opted to
     deviate from the regulatory approach taken by its sister
     agency, OSHA.  One area where the pendulum swung too far in
     favor of a performance-based standard was in the audiometric
     testing area.  MSHA erroneously refers to this as a non-traditional approach to, quote-unquote, "hearing
     conservation."  On its own, audiometry does not preserve
     hearing but measures hearing loss.  The OSHA hearing
     conservation amendment and ANCI standards are abundant with
     regard to audiometry performance and quality control.  The
     saying, "garbage in - garbage out," applies especially in
     audiometry.  
              We urge MSHA to draft a rule with the proper
     audiometric controls, procedures and equipment outlined and
     require a program in audiogram review and validation by
     CAOC-certified audiometric technicians and American Speech
     and Hearing Association or ASHA-certified audiologists, and
     also medical referrals by ear, nose and throat specialists. 
     Further, we believe that hearing protectors are a necessary
     and essential part of the effective hearing conservation
     program.  Not only should the use of hearing protection be
     encouraged to protect employees from hearing loss, but the
     use of hearing protection should be recognized as a control
     measure to achieve compliance.
              The shift in hierarchy of controls to engineering
     and administrative instead of/or is technologically and
     economically infeasible and an inappropriate allocation of
     resources.  However, we do support the use of engineering
     controls where it is cost-beneficial to do so.  Otherwise,
     we believe that flexibility should be allowed for operators
     to use a suite of controls to protect miners' hearing.
              MSHA should also acknowledge the contribution of
     genetics, age, dangerous hobbies and ototoxins, such as
     prescription drugs, that affect hearing and hearing loss. 
     The contribution on non-occupational noise exposures to
     hearing loss is ignored in its rule.  MSHA disregards the
     value and functionality of noise-reduction ratings for
     hearing protection and recklessly negates all scientific
     research and data supporting noise-reduction ratings for
     hearing protection.  MSHA should acknowledge the age
     correction factors on audiograms.  
              MSHA should not try to regulate in a vacuum.  Loss
     of hearing due to aging and society noise sources are facts
     of life.  It is not within MSHA's jurisdiction to attribute
     all noise exposures to industrial noise.  It is not within
     MSHA's jurisdiction to attribute all hearing loss to
     occupational exposures.  And it is not within MSHA's
     jurisdiction to issue a rule that assumes that our miners
     live in the Garden of Eden.  In sum, although MSHA's
     intention is good, MSHA's approach to hearing conservation
     in the proposed rule is flawed.
              I will now ask Bert to describe the hearing
     conservation program at the New Mexico Operation.  He is on
     his way.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF BERT WISNER, BHP MINERALS
     
              MR. WISNER:  Okay.  Good morning or afternoon, I
     guess, isn't it?  I am Bert Wisner, B-E-R-T   W-I-S-N-E-R. 
     I am the safety supervisor at San Juan Mine.  I have been
     involved in hearing conservation since the early 1970s.
              To avoid any confusion, I am not using hearing
     conservation to mean only audiometry.  MSHA's non-traditional use of the term "hearing conservation" for
     audiometry is confusing.  When I speak of hearing
     conservation, I am describing a program that not only can
     prevent hearing loss, but improve employee morale, generate
     a feeling of well-being, and improve quality and production
     in life.  It involves not only management commitment and
     adequate resources but also the support of the employees and
     their families.  BHP Minerals hearing conservation includes
     noise measurement, noise controls, audiometric testing,
     hearing protection and training and education.  
              In 1973, the Navajo Mine received a noise citation
     on a 1350 drag line.  As part of the program, we instituted
     a hearing protection program at Navajo Mine.  We started
     collecting baseline audiograms in 1973 on all of our
     employees and all efforts in this area have been expanded to
     all of our New Mexico operations.  To date, we have enrolled
     over 1,650 employees in our hearing conservation programs. 
     All employees are given audiograms as part of their pre-employment examination.  However, our contract physician
     retains these exam results upon hire.  The employees given
     another audiometric exam are conducted in-house by Daisy,
     our occupational nurse.
              The periodic audiometric exams are given to all
     employees regardless of noise exposures.  Our exam frequency
     ranges from one year to every two or three years, depending
     on exposure.  The average cost for New Mexico operations for
     our audiometric program ranks right at $100,000 a year.  The
     cost of our consultant to read our audiometrics is about
     $1,300 to $2,000 a year. 
              In the late 1970s, we contracted with Industrial
     Health to provide professional audiologist oversight for the
     audiograms we collected in-house to validate our audiometric
     testing program and maintain our audiometric testing
     database of over 7,000 audiograms.  An IHI ASHA-certified
     audiologist reviews the audiograms to identify employees
     needing medical referrals, employees with previous medical
     history for ear or hearing disorders, re-tests the employees
     who show significant threshold shifts and OSHA 200
     recordable cases.  Our audiograms are adjusted for age.
              One interesting aspect of this -- we found an
     employee who has had absolutely no hearing in one year and,
     through the efforts of our nurse and the otolaryngologist,
     he was operated on and has recovered almost completely the
     hearing in the one ear that he never had since birth.
              Around two percent of our workforce are classified
     as OSHA 200 recordable cases.  Of these cases, less than
     half of them are in high-risk occupations of mechanic,
     mechanic's helper, welder, dozer operator or coal haul
     drivers.  In these cases, we have found five cases of
     binaural hearing loss, seven involving the right ear hearing
     loss and 25 involving left ear hearing loss.  Although a
     number of these cases are work-related, a third of these
     cases are previous medical histories and medical referrals. 
     We find that five percent of our workforce either has a
     previous medical history or needs a medical referral with an
     ear, nose and throat specialist.  
              Significant threshold shifts, a change in hearing
     threshold relative to the baseline audiogram of an average
     of 10 dB or more at 2,000, 3,000 and 4,000 hertz in either
     ear is also tracked for our employees.  The use of the STS
     as an indicator has its inherent problems because the
     individual variability in hearing sensitivities and from
     conditions which affect hearing and audiometric tests,
     including allergies, head colds, non-occupational noise
     exposure, noise prior to audiometric testing and impacted
     wax.  At our mines, most employees drive from 30 to 40 miles
     just to get to work and to assume that they have a 14-hour
     non-exposure to noise with that kind of driving is absurd.
              We recognize that engineering controls are the
     ideal way to control occupational noise exposures.  However,
     the reality of this method of controls is difficult,
     especially in our drills, drag line houses, heavy equipment
     and maintenance operations involving compressed air and air-arc welding.  
              One of the occupations with high noise exposures
     and increased risk to noise including hearing loss are
     welders.  Their noise exposures average around 90 dBA for an
     eight-hour day.  The noise can hit peaks of 140 dBA during
     air-arcing operations.  These are not continuous operations. 
     They are intermittent and last for just a few minutes.  But
     that is the peak noise level we have been able to measure.
              Although welders use ear plugs, they cannot use
     the dual hearing protection with ear muffs because of the
     welding helmets.  We are working with welders to determine
     how best to bring down their noise exposures.  We are
     evaluating options and bringing down the arc as a means of
     controlling pressure during cutting operations.  
              We have taken noise samples in many noisy areas. 
     In the drills, the drill monitor and compressor generates
     from 108 to 109 dBA during drilling.  The noise on the drill
     deck can range from 96 to 97 dBA.  The drill operator's cab
     can be quiet, idling at 80.6 to 81 dBA, increasing to 84 to
     86 dBA during drilling operations.  Outside the drill
     operator's cab, noise exposures from 99 to 102 dBA can be
     found.
              Noise ratings within the house of an average drag
     line -- and we are talking, from experience at our mines,
     six drag lines; internationally, probably 25 drag lines --
     can range from 86 to 85 dBA with a new swing motor, from 105
     to 106 dBA at the motor-generator sets.  Although employees
     are not exposed to these noise levels during an eight-hour
     day, full day, the noise generated in drag and hoister and
     walk motors, motor-generator sets, are difficult to engineer
     out using current engineering programs.
              Another aspect of our hearing conservation program
     is the use of hearing protection.  We offer at least two
     different brands of ear muffs and two brands of ear plugs. 
     The hearing protection is available at the warehouse, freely
     accessible by our employees.  Our workers use and accept
     hearing protection.  They have been using hearing protection
     since, I think, 1973, 1972.  And a greater preference for
     ear plugs because of their ease of use and comfort.  The ear
     muffs are more difficult to wear with a hard hat and tend to
     create more problems.  We have one employee who uses custom-molded silicone plugs due to an allergic reaction with the
     other plugs. 
              While we try to control work noise exposure, we
     cannot often control off-the-job exposures.  We feel that
     team efforts for managing noise have been good and that our
     programs are effective.  However, Harley motorcycles, guns,
     stereos, earphones and what we euphemistically call Navajo
     air conditioning -- it's where you roll down the left window
     of your pick-up and drive 60 to cool off -- is part of our
     noise exposure.  And Larry will get me for this one.  They
     make our job more difficult.
              Recently, Daisy mentioned that one of our
     employees came in on swing shift for a hearing evaluation
     and showed a significant threshold shift in his second
     resample.  Up until then, he had had excellent hearing. 
     After speaking with the employee, she found out that he had
     been working around the house with his Sony Walkman on loud. 
     Although we do not allow employees to wear headphones that
     cover their ears at work, we cannot do the same for them in
     their homes.  And one of the real important parts -- and I
     know we were discussing earlier that physicians say they can
     do an audiogram in seven minutes and the actual test can be
     done in that, but the discussion that ensues between the
     technician and the employee to get this kind of information
     out generally runs an audiometric test from 15 to 30
     minutes.  It is not done that simply.
              Other elements of our hearing conservation program
     include noise monitoring, audiometric testing and training
     and education.  Larry will now describe our noise-sampling
     program, audiometric testing and training provided for our
     employees.  Larry has been collecting noise data since the
     late seventies and is very knowledgeable in our employees
     and their noise exposures.
              MS. PILATE:  I would like to ask some questions
     before we change speakers.
              MR. WISNER:  Sure.
              MS. PILATE:  How many employees did you say that
     you have in your HCP program now?
              MR. WISNER:  I told you 1,650.  Currently, we
     employ a little less than a thousand, but this is our
     historical database.
              MS. PILATE:  And you gave a figure of $100,000
     annually to conduct the HCP?
              MR. WISNER:  Yes.
              MS. PILATE:  How many employees are tested
     annually?  You said some are tested every two years.  Some
     are tested annually.
              MR. WISNER:  I would suspect, and this is just a
     rough guess, about 500.
              MS. PILATE:  You also mentioned that your company
     performs monitoring, testing and training.  How long do you
     take to train employees, per employee?
              MR. WISNER:  Per employee?  They are trained every
     year at least for a half-hour.
              MS. PILATE:  And what about monitoring?
              MR. WISNER:  They are monitored -- can you save
     that one for Larry?
              MS. PILATE:  Okay.
              And what about testing?
              MR. WISNER:  Testing?  That is the audiometric
     testing?
              MS. PILATE:  Yes.
              MR. WISNER:  It is either every year, every other
     year, or every third year, depending on their exposure.
              MS. PILATE:  For how long?
              MR. WISNER:  For --
              MS. PILATE:  How many minutes?
              MR. WISNER:  How many minutes?  Generally, about a
     half-hour per person.
              MR. VALOSKI:  I would like to ask a couple of
     questions also.  You said one to three years on exam based
     upon exposure.  Could you elaborate on who gets it every
     three years, versus who gets it every second year, and who
     gets it every third year?
              MR. WISNER:  Every third year is the guy that
     escapes.  Every second year is generally the salaried
     employees, office workers.  Every year, we try to get all of
     what we would consider our exposed employees, which would be
     mechanics and operators.
              MR. VALOSKI:  Okay.  Out of the 500 people you
     test annually, what is the number of STSes and what is the
     number of OSHA-recordable cases?
              MR. WISNER:  I do not have that in front of me.  I
     could not answer that right now.
              MR. VALOSKI:  Will you submit that at a later
     date?  Earlier in your testimony, you said that you had some
     cases that were OSHA-recordable and then you sent them for a
     follow-up evaluation.
              MR. WISNER:  Yes.  We can provide that.
              MR. VALOSKI:  Okay.  Thank you.
              MR. THAXTON:  Vicky was not finished with you yet.
              MR. WISNER:  Oh.  I was done.
              MR. THAXTON:  Go ahead.
              MS. PILATE:  Do I have this correct that for some
     employees, you do need to get otological exams?
              MR. WISNER:  We refer them to an otolaryngologist,
     yes.
              MS. PILATE:  Okay.  But you do not have one on
     staff or on contract?
              MR. WISNER:  We do not.  We have a physician on
     contract.  We do not have an otolaryngologist on contract.
              MS. PILATE:  Do you know, offhand, how much you
     have paid, on average, for an otological exam?
              MR. WISNER:  No, I do not.
              MS. PILATE:  Thank you.
              MR. THAXTON:  Now, there is one other question. 
     You gave a lot of information, so you have to stand for a
     lot of questions.
              You indicated that you had over 7,000 audiograms
     that have been administered, I guess, since 1973.
              MR. WISNER:  That is correct.
              MR. THAXTON:  Are you able to provide that
     audiometric data to MSHA?
              MR. WISNER:  Melinda?
              MR. THAXTON:  That is good.  I was going to ask
     you to come back up because you got away before we could ask
     you questions.
              MS. PON:  Sure, yes.
              One of the problems that we have had with the
     comment period is the shortness of the comment period and I
     would love to give you more information about our experience
     with noise exposures and any particular hearing loss.  The
     difficulty is that we have a lot of information and to give
     you a quality management summary and analysis requires time
     and you are looking at the solo person that is doing this
     analysis with the help of some of our operations.  So, I
     would beg that the Agency consider extending the comment
     period.  That is not a blackmail threat.  This is basically
     asking or pleading.  And, yes, we will provide -- at the end
     of my talk I will tell you this -- that we are providing
     follow-up testimony and written documentation to support
     what we have given you.
              MR. THAXTON:  Are you planning to come back, then,
     and sum up at the end of all this?
              MS. PON:  Yes.  You guys were running ahead of the
     ball game.  You still have Larry to talk yet and then I will
     come back up and then you can ask me questions then.
              MR. THAXTON:  Okay.  We will hold yours until
     then.
              MS. PON:  All right.
              MR. THAXTON:  Anything else?  Thank you.
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF LARRY JIM, BHP MINERALS
     
              MR. JIM:  Good afternoon.  I am Larry Jim, L-A-R-R-Y   J-I-M.  I happen to work in the Navajo, San Juan and
     La Plata Mines for the past 19 years.  Prior to working
     there, I worked for Kerr-McGee Corporation as an underground
     mine ventilation technician in Churchrock, New Mexico.
              The past 23 years, I have worked in the health and
     safety field and my primary job at San Juan, La Plata Mine
     now is to monitor employees that are exposed to mining and
     mechanical noise during any eight-hour shift, whether they
     be day shift, swing or graveyard.  And my overtime has been
     questioned quite a bit, but Bert has been very
     understanding.
              The noise monitoring is not only conducted during
     the day shift and the maintenance people, the maintenance
     support group, the managers that I have to track down and we
     do some basic monitoring on, and also the mining and the
     mining support people.  And there are people that do get
     away, as Bert had mentioned, but our employees learn that I
     do not give up easily.
              And MSHA has said that I can do my noise sampling
     on a biannual basis every six months.  But I have been
     turning in my reports on a quarterly basis so I do go
     through a number of employees and I have to divide my shift
     and my sampling between the maintenance and production to
     try to get all the employees.
              Our monitoring equipment includes -- dosimetry and
     we check the calibration prior to each use and I send them
     in on an annual basis to a laboratory for laboratory
     calibration, as my inspector always asks for that, so I have
     to keep that up.  And, by trade, I am a certified industrial
     instrumentation technician also.
              In addition to MSHA-required noise samples, I do
     collect samples at target locations such as drag lines,
     trails and our prep plants and also occupations.  
              And with me is Daisy Bejay, D-A-I-S-Y   B-E-J-A-Y,
     our industrial nurse.  We do the audiometric testing also. 
     And the reason why sometimes there are two of us working on,
     for employees it is difficult in translating.  Some of our
     employees are older employees and they do not understand
     English that well.  So, we have to kind of team up in order
     to interpret what to do.
              We use a trimetric RA-500 microprocessor
     audiometer for hearing tests and use an audiometric booth
     for background noise and calibration.  The audiometric is
     calibrated on a daily basis.  So, prior to each use and we
     do a lot of calibration and that is what takes up a lot of
     our own time.  
              We follow procedures according to those outlined
     on the OSHA hearing conservation amendment and has revised
     by Industrial Health.  Our employees are provided hearing
     tests prior to their work shift before they can be exposed
     to any noise on the job.  Prior to our hearing test, we
     examine their ears and take three to five minutes and ask
     them questions on their noise-exposure history.  We ask
     things such as their use of hearing protection, noisy
     hobbies, medical conditions and something that may affect
     their hearing tests.  
              During the tests, which take up to 20 minutes to
     give, we explain what will occur during the test and the
     function of the audiometer and how they administer the test. 
     Once a month, the audiograms are collected and shipped to IH
     for an audiologist to review and validate.  We receive the
     management report within 15 days and with the end of the
     next week, we send a notification letter to each employee
     explaining the results of the examination.  
              If an employee is a medical referral, then the
     referral is made to an ear, nose and throat specialist.  We
     provide one-to-one counseling to each employee who has
     experienced a hearing loss, an STS and an OSHA-recordable or
     a medical referral.  This is usually done in English and
     also in Navajo, but we are yet to come across Spanish.  But
     we can understand a bit of that.
              We provide information, education and speak at
     length to the employee regarding the benefits of preventing
     hearing loss on the job and off the job.  Some of our
     education deals with noise exposures and potential hearing
     loss to family members as well.  Our employees like to take
     home -- I have a little sample of our knife in your ear
     posters that we try to have them take back to their kids. 
     So it is just not only the employees that we are concerned
     about.  It is also their family members.
              I gave it to my family and I think they just threw
     it in the trash can.
              We also train on noise during the annual refresher
     training sessions.  I show the employee the results of their
     noise monitoring, especially in the high-risk occupations,
     and advise employees on hearing loss prevention measures. 
     We talk about the physical sound and that is hard to do in
     Navajo because we do not have any technical language and I
     use the illustration as a puddle of water.  With high
     frequencies, I use little pebbles.  And noise, put a big
     rock in there.  And it is strange how they eat away at these
     curves and stuff like that.  We use a lot of illustrations
     to where they can understand it and I have been approached
     by some of our older employees, especially when I worked for
     Kerr-McGee Corporation, "Where have you been all these
     years?"
              So, we have worked with NIOSH people that do
     testing and taking in-house sampling for us and they
     commented that they have never seen employees wear ear plugs
     or noise reduction in areas they do not need to, and this is
     where we come into play.  We have people that do wear ear
     plugs, even though they do not need to.
              Most employees wear their hearing protection in
     noisy jobs.  Some even wear them in areas where it is not
     required because hearing protection has proven to be
     effective in protecting workers from noise-induced hearing
     loss.  We believe that MSHA should recognize usefulness of
     hearing protectors as a control for noise exposure and our
     workers' accept and use them.  However, it will be more
     difficult if MSHA requires a 14-hour quiet period without
     hearing protection.
              Not only do we have some 10 to 12-hour shifts, but
     the 14-hour quiet period will lock us into bringing in our
     employees at the start of their shift for their hearing
     tests.  This greatly reduces the number of tests that one
     audiometric technician can give during a shift.  We also
     fear that we will lose the quality time the company nurse
     can take time to talk with exposed people.  This time
     provides benefit not easily gained in other manners.
              I have seen firsthand how our workers appreciate
     the work we have taken to monitor their noise exposure, to
     provide them hearing protection, and to evaluate the results
     of their hearing tests.  Over the many years that we have
     had our hearing conservation program, we have taken a broad
     approach that takes in noise monitoring, audiometric
     engineering and administration, and personal protective
     equipment, and training and education.  
              We have tried to limit hearing tests to those who
     have high exposure.  However, even those who have little
     exposure have asked for the audiometric testing.  We
     continue to test all employees at baseline and offer
     periodic exams to all employees, regardless of noise
     exposure.  Daisy and I feel that a comprehensive hearing
     conservation program is beneficial for all our employees.
              And I thank you.  Do you want that in Navajo now,
     or --
              MS. PILATE:  You spoke of having to send your
     equipment off, your dosimeter, to be tested, to be
     laboratory-calibrated?
              MR. JIM:  Yes.
              MS. PILATE:  How much does that cost?
              MR. JIM:  I do not sign the check.  I just let the
     purchasing department take care of that.
         MS. PILATE:  Do you know how much a dosimeter costs?
              MR. JIM:  About a thousand dollars.  So, I carry
     about $1,500 -- or $15,000 in my truck.
                   MR. THAXTON:  Okay.  Thank you.FURTHER STATEMENT OF MELINDA PON, BHP MINERALS
     
              MS. PON:  In conclusion, BHP Minerals is concerned
     about MSHA's cookie-cutter approach to the proposed noise
     rule.  We see no reason, based on our experiences, why MSHA
     should not take an approach consistent with the regulatory
     approach of the OSHA noise standards.  In fact, Section
     101(a)(6)(a) of the Mine Act requires the Secretary of Labor
     in promulgating mandatory standards dealing with harmful
     physical agents to develop such standards based on the
     experience gained under the Mine Act and other health and
     safety laws, such as the OSHA Safety and Health Act of 1970. 
     In MSHA's attempt to cut out the cookie for its proposed
     noise rule, MSHA's left out most of the cookie dough. 
     Therefore, BHP Minerals urges MSHA to withdraw this proposal
     and use as a template for a new proposal the current
     occupational noise exposure standards of OSHA.
              We have submitted our preliminary comments to
     Arlington back in April and we would like to provide a copy
     of this testimony and additional written comments by the
     deadline of June 20, 1997.  However, again, I reiterate that
     we are requesting MSHA to extend the post-hearing comment
     period to address some of the questions that you have asked
     us to provide and we would also like to provide that to you. 
     But we do need some additional time to collate that
     information together for a more thorough analysis of the
     data, our experiences and views of MSHA's proposed noise
     rule.  
              Thank you, and I will be glad to handle any
     questions.
              MR. THAXTON:  Okay, Melinda.  You stated on your
     first time you were up that you should include engineering
     controls as a means of control, if it proved to be cost-effective.
              MS. PON:  Yes.
              MR. THAXTON:  What variables would you use in
     determining whether the engineering control would be cost-effective because if the only thing that you are comparing
     to is the cost of the hearing protector versus an
     engineering control, of course the engineering control would
     always lose out when just comparing that cost.  So, what
     variables would you include in that?
              MS. PON:  Maybe I can give an example of a dozer,
     for example.  Okay.  When you are looking at that, you
     definitely want to look at the noise reduction that would be
     included in a package, for example, on a particular
     bulldozer.  And Bureau of Mines has done a lot of work in
     this area where we can cut down on noise, whether it is the
     mufflers or the gaskets around the doors, the cabs, things
     like that.  So, that would be beneficial for what I consider
     cost-beneficial.
              Comparing with a hearing protection program, it
     would be difficult for me to say that because we have an
     open box on use of personal protective equipment.  Our guys
     come up and grab by the handful and they use it regardless
     of whether the noise exposures warrant that extra protection
     or not.  So, I do not think we would be the fair example as
     to comparing the cost of personal protective equipment.  We
     would not be the right example because we do allow our
     workers free reign with that.
              MR. THAXTON:  Okay.  In regards to your final
     comments, you stated that MSHA should be using the OSHA rule
     as a guideline considering that part of our Act requires us
     to use other rules that have been promulgated as a guide. 
     Do you not agree that that Act also requires us to look at
     the latest technology and the latest information that is
     available and improve upon those guidelines, if it is
     possible?
              MS. PON:  Well, I agree if the Agency would allow
     the industry to also use the latest science and technology
     related, for example, on hearing protection.  So, I think,
     on the one hand, yes, I agree.  But, on the other hand, I
     think the playing field has to be fair in the data that is
     out there.  And I think if you look at Link's data, for one,
     that is good data that MSHA should evaluate, okay?
              MR. THAXTON:  We are hoping that Link provides
     that to us.
              Any other studies that we neglected to include?
              MS. PON:  Well, it seems, I do not know, I was a
     little puzzled that in the rule there were no references to
     any ANCI standards that have been out since 1969 or 1977 and
     these are consensus standards.  So, I do not know why that
     big chunk of information was not available.  There is some
     information through the National Hearing Conservation
     Association and their coalition seem to have pooled together
     as well.  So, I think if you look at their comments, there
     may be some data there as well.
              What we wanted to offer today was basically our
     experience going back to the mid-1970s.  It works.
              MR. THAXTON:  Okay.  Thank you.
              MS. PON:  Okay.
              MR. THAXTON:  We would like to ask first, before
     we go to the next speaker, Mr. Patrick James, you passed
     earlier this morning.  Is he still here?
              MR. JAMES:  Yes.
              MR. THAXTON:  Do you still wish to pass, or are
     you planning on speaking today?
              MR. JAMES:  I will pass.
              MR. THAXTON:  So, you do not plan to speak today,
     or --
              MR. JAMES:  I will pass.
              MR. THAXTON:  Mr. Payovich, are you -- okay.
              Our last commenter, then, or person that has
     signed up so far, is Roger Connett.
              MR. CONNETT:  You are one of the few people who
     pronounce that right.
              MR. THAXTON:  I have been working at it for the
     last three weeks.
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
          STATEMENT OF ROGER CONNETT, GLEN ROCK COAL COMPANY
     
              MR. CONNETT:  Good afternoon.  My name is Roger
     Connett, C-O-N-N-E-T-T.  I am with Glen Rock Coal Company
     and my comments will be brief and they are going to be
     directed toward administrative and engineering controls
     versus hearing protection.
              I could talk about many areas of mining or
     equipment that we all run, but I am only going to talk about
     a few.  I am going to talk about dozers, vacuum trucks and
     drag lines.
              Talking about a drag line, I heard earlier that
     noise levels range from 86 to 106.  That typically is what
     we found.  The same ranges almost exactly.  While normally
     there is no person that works in a drag line house for a
     full eight-hour shift, if they do, they wear hearing
     protection and when they are in there, no matter how long it
     is, but to be in there for eight hours is not normal. 
     However, in some areas, when you are back in an area where
     you have the high level next to the MG sets, the exposure
     time is very limited.
              Those kind of levels, with hearing protection,
     really do not present a problem.  But, without that, an
     adjustment for hearing protection, even though we do not
     have people working in those areas usually long-term, it
     still is cause for concern -- not only where it will start
     but where it will go once it begins.  
              A drag line oiler is required to be in a house of
     a drag line probably the most of any person on a mine site. 
     He has to monitor motors and generator stats, couplers, gear
     boxes, fans, drag drums, hoist drums, the electrical system
     meters, and lubrication systems to make sure that things are
     working properly, as well as to look for fires and other
     things that might be hazards.  Another responsibility that
     they have is maintaining the cleanliness of the inside of
     the house of a drag line and sometimes that can require
     longer-term times in those areas.
              Maintenance personnel, mechanics and electricians,
     almost all trouble-shooting regarding a drag line, is done
     with the drag line operating, unless there has been a major
     catastrophic failure that makes it obvious to detect what it
     is.  But, a lot of times, trouble-shooting in a drag line,
     as I heard mentioned earlier, when you are trouble-shooting
     a drag line, it transfers noise and sometimes it is hard to
     determine exactly where a problem may be occurring. 
     Electrical trouble-shooting in a drag line sometimes can be
     an absolute nightmare and it can also require spending
     amounts of time.
              We do quarterly vibration analysis on all our gear
     boxes and motors and couplers and one thing or another and
     that does not get done in one day.  It takes longer to do
     all those types of things.
              One of the things that concerns us is if we have
     to rotate people through these areas is the loss of
     continuity in the jobs and tasks that are being performed. 
     Obviously, the efficiency that you lose and the production
     that you lose rotating people.
              To engineer the noise out of a drag line, out of
     the house of a drag line, is, I would say, not only is not
     feasible, it is impossible because of the amount that you
     have.  You have gear boxes that have gears that are 11 feet
     in diameter and, in some bigger drag lines, much bigger than
     that.  And that is just the gears.  That is not the gear
     boxes themselves.  You have motor-generator sets that create
     a tremendous amount of heat and to enclose those, one of the
     things that all over the house of a drag line, in the roof
     and in the walls, are three to six-foot diameter fans that
     pull the heat out of the house and take it away from those
     motors to enclose them and to try to engineer a noise
     reduction, I think, would be impossible.
              Our drag line, which is small by comparison to a
     lot of them in the industry and in the Powder River Basin,
     is approximately 90 feet long, 50 feet wide and 30 feet high
     and it has an outer skin that is a quarter-inch steel plate
     which echoes and reflects the noise back also.  It
     contributes to the noise levels that we see.
              Another area of concern is what we call a vac
     truck or a vacuum truck that we use on the mine site.  We
     use them generally around our tipple area for clean-up.  At
     our mine site, there are usually two days a week that we do
     not ship coal.  We are a captive mine, so we have a little
     better schedule than some mines that are regulated by
     railroad schedules.  We use those two days, typically, to
     clean up around our tipple area and our load-out areas and
     it is the major use of this truck, unless you have a spill
     on the railroad somewhere.
              The levels with that truck can reach 94 dBA over
     an eight-hour period.  Earlier this year, we actually
     recorded that in an eight-hour period.  Typically, we do not
     run that vehicle that much, that long a period, to get that
     kind of a reading, but it can happen.  This is a vehicle
     that would -- a vac truck is like a giant vacuum cleaner
     mounted on a two and a half ton chassis and if you think
     about how much noise a vacuum cleaner at home makes, you can
     relate to how much noise that a unit like this makes.  And
     the exhaust on the vacuum is actually where the major amount
     of noise comes and to engineer that noise out would also be
     very difficult, if not impossible.
              To use this truck for all day would mean instead
     of -- it is normally a two-person operation.  It would
     become a four-person operation because you would have to
     rotate the people to meet administratively take the noise
     out.  
              Dozers, crawler tractors or dozers, have been
     mentioned a couple of times.  We have had recent readings of
     92 dBA on a dozer, a D-11 dozer with an AM/FM radio playing,
     and I heard earlier from the first testimony this morning
     about the benefits of allowing AM/FM radio.  But it does
     contribute to the noise and, in fact, it is one of the
     things that can make you exceed.
              An operator can run a machine like this probably
     six hours, maximum, if we do are not allowed credit for
     hearing protection.  And they would have to be rotated,
     which on an eight-hour shift they are either going to do it
     four hours or you are not going to shut the machine down
     after running only six hours.  So, it is another area that I
     think would be of concern once this begins.
              You mentioned one other area of air-arcing.  I did
     not have this in my text, but I have some past experience
     with another mine that I worked at in Paddle River Basin ten
     years ago who had a very large shop that would accommodate
     the 240-ton trucks that a lot of the larger mines use now. 
     And we had a big welding shop on the end of it and we put a
     wall up between the two of them.  It was about 20 feet high. 
     But the shop itself was closer to 75 feet high.  And the
     wall, the mechanics working on one side of the wall were
     affected by the air-arcing.  We had our own standards for
     noise, even though it was short periods of time with air-arcing, and we required them to wear ear plugs or hearing
     protection if they were close to the weld shop and air-arcing was going on in there.  So, we looked at the
     possibility of extending the wall up and the cost of doing
     that project and insulating it and eliminating the noise. 
     And I was actually pretty proud of the fact that I thought I
     could swing it, until I remembered that if I took the wall
     all the way up, I would have to buy a 50-ton bridge crane to
     put on that side of the wall because it would no longer be
     able to go over there.  And a 50-ton bridge crane with an
     80-foot span is about $120,000 ten years ago.  So, just an
     example of how sometimes the engineering cost can escalate
     very quickly.
              We do support hearing protection and engineering
     controls, when it is feasible.  I guess, like some of the
     others, we are concerned about what feasible really means
     and think that it needs to be certainly very clearly
     defined.  And hearing protection, we support further
     development in hearing protection and credits for hearing
     protection, along with all the other suggestions that have
     been made and feel like that that ought to be one of the
     things that is taken into consideration before the final
     rules are adopted.
              That is all I have.  Thank you.
              MR. THAXTON:  I have a couple of questions for
     you.  One --
              MR. CONNETT:  I thought I was going to get away.
              MR. THAXTON:  Not that easy.
              You brought up the dozer being a reading of 92
     dBA.  What controls do you have in place now with that
     dozer?
              MR. CONNETT:  Well, typically, I think that with
     the hearing protection and, for the most part, what we do,
     we have looked at ways to dampen the sound and with about a
     two-inch foam mat padded on the floor, I could not guarantee
     you that that will always make it work.  I think that,
     depending on how steadily an operator works that machine, it
     could exceed again.  If he has an AM/FM radio, it depends,
     too, on the operator -- how loud they play it.  It depends
     on whether --
              One of the problems with a dozer, particularly in
     trying to engineer out noise, is the fact that 60 to 65
     percent of the cab is glass and that makes it hard to dampen
     the noise.  You have, from the floor is your major area that
     you can really address.
              During the operation of a dozer, in taking
     readings, just sample readings of what the loudest or the
     highest levels that we recorded, were actually not when it
     was working.  It was when it was backing up and the tracks
     were clanging.  Actually, we got higher readings from that
     than we did when it was under full load.  So, that is one of
     the areas we have to continue to work and do further work
     in.
              MR. THAXTON:  You were recommending that we
     continue to consider the use of personal hearing protection
     as a means of control.  On this particular dozer, you
     indicated that the guy would probably have to wear hearing
     protection then.  If your noise is being increased because
     of the use of the AM/FM radio and the operator would have to
     wear the hearing protection, what is the point of having the
     radio in there then?  If they are wearing hearing
     protection, they are not going to be able to hear the radio
     unless it is turned up extremely loud.  If you get rid of
     the radio, then you do not have the problem with noise.
              MR. CONNETT:  Generally, like a lot of companies,
     some areas we require hearing protection all the time and
     for everybody we supply ear plugs; ear muffs, if they
     request; and, in some cases, we require muffs, depending
     upon what area that they work in.  If they wear their ear
     plugs and they crank their radio, that is when we see the
     high reading and so one of the options is take the radios
     out because we are going to require the ear plugs.  
              But the other benefits of a radio, especially on
     evening shifts or midnight shifts, is the fact that fatigue
     and sleepiness is one of the things that operators tend to
     fight on off shifts.  So, it is kind of a which way is the
     best way to go.
              MR. THAXTON:  Okay.  On the drag line, you
     indicated that levels of 86 to 106 dB, I think, were
     measured?
              MR. CONNETT:  Correct.
              MR. THAXTON:  What do you have as a means of
     control for the drag line operators cab?
              MR. CONNETT:  The operator's cab is far enough
     away from all that, up above it, and there is insulation
     between it and the house and it is actually attached to the
     house.  It is not part of the house.  And so the levels
     there are actually very low.  We do not see anything that
     even reaches 80, usually.
              MR. THAXTON:  So, your operators are okay.  It is
     the incidental people, maintenance-wise, that come inside
     the actual drag line equipment house that you would be
     concerned about.
              MR. CONNETT:  Well, on our drag lines, we also
     have what we call a drag line oiler who also can be the
     relief operator and he is the person who generally goes to
     the house and checks everything.  He is considered an
     operations person, not a maintenance person.
              MR. VALOSKI:  How many people do you have on a
     drag line, excluding the operator?
              MR. CONNETT:  On our drag line crews, we have
     three people assigned.  We have the operator, the drag line
     oiler and then we always have a dozer operator assigned to
     the drag line crew.  But he is not a relief operator on a
     drag line or anything like that.
              MR. VALOSKI:  So, the oiler is really the only
     person that spends any appreciable amount of time in the
     housing of a drag line.
              MR. CONNETT:  Typically, yes.
              MR. VALOSKI:  About how much time does he spend in
     there on a given shift?  A typical shift?
              MR. CONNETT:  I'd say, on a typical shift, they
     probably spend maybe four to five hours, on and off.  They
     are in and out.
              If you were painting the inside of the house or
     cleaning or one thing and another, those are the type of
     situations where you would see them maybe being in there
     longer.  
              MR. THAXTON:  Okay.  Thank you.
              That concludes all the speakers that we have
     signed up.  At this time, we would like to make sure that
     everybody that is in the audience that still wishes to make
     a statement does come forward, sign the speakers sheet, and
     we will make the opportunity available to you.  
              In the meantime, though, it is three-thirty.  We
     are going to recess the hearing until four o'clock, at which
     time, then, we will reconvene and if there are any further
     speakers present, then we will make the time available to
     them.
              (Whereupon, a short recess was taken.)
              MR. THAXTON:  It is four o'clock.  We have nobody
     present at this time at the hearing, so we will recess until
     five o'clock.
              (Whereupon, a short recess was taken.)
              MR. THAXTON:  It is five o'clock and we have no
     other persons present that wish to make presentations, so
     therefore the hearings are closed.
              (Whereupon, at 5:00 p.m., the hearing was
     concluded.)
     //
     //
     //
     //
     //
     //
     //
          //                   REPORTER'S CERTIFICATE
     
     DOCKET NO.:   N/A
     CASE TITLE:   PROPOSED RULES ON HEALTH STANDARDS FOR
                        OCCUPATIONAL NOISE EXPOSURE
     HEARING DATE: May 13, 1997
     LOCATION:     Denver, Colorado
     
          I hereby certify that the proceedings and evidence are
     contained fully and accurately on the tapes and notes
     reported by me at the hearing in the above case before the
     United States Department of Labor, Mine Safety and Health
     Administration.
     
     
     
                                  Date:  May 13, 1997
     
                                                       
                                  Official Reporter
                                  Heritage Reporting Corporation
                                  Suite 600
                                  1220 L Street, N. W.
                                  Washington, D. C.  20005