0001

 1

 2                   U.S. DEPARTMENT OF LABOR

 3            MINE SAFETY AND HEALTH ADMINISTRATION

 4

 5

 6                      PUBLIC HEARING ON

 7                 EMERGENCY TEMPORARY STANDARD

 8           SEALING OF ABANDONED AREAS - FINAL RULE

 9

10

11

12                  TRANSCRIPT OF PROCEEDINGS

13

14

15

16                     Crowne Plaza Hotel

17                     1375 South Broadway

18                 Lexington, Kentucky  40504

19

20

21                        July 12, 2007

22

23


24

25

0002

 1                         PROCEEDINGS

 2

 3         (Hearing was called to order at 9:14 a.m.)

 4

 5        MS. SILVEY:  Good morning.  I'd like to get

 6    started, for those of you in the back, please.

 7    Again, good morning.  My name is Patricia W. Silvey

 8    and I am the Director of Department of Labor Mine

 9    Safety and Health Administration, Office of Standards

10    Regulations and Variances.

11               I will be the moderator of this public

12    hearing on MSHA's Emergency Temporary Standard, or

13    ETS, for sealing abandoned areas in underground coal

14    mines.

15               On behalf of Richard E. Stickler, the

16    Assistant Secretary of Labor for Mine Safety and

17    Health, I want to welcome all of you here today.

18               And I want to underscore, at this point,

19    our appreciation for your participation in this

20    rulemaking, and for your attendance and for your

21    attention and interest in all of MSHA's activities.

22               At this time I would like to introduce

23    the members of the panel.  The members of the panel

24    are to my left, John Urosek, and John is with MSHA's

25    Pittsburgh Health and Safety Technology Center.  To

0003

 1    his left, Deborah Green, and Deborah Green is our

 2    lawyer with the Office of the Solicitor.

 3               And to her left, Ron Ford.  Ron Ford is

 4    the economist on this project and he is from my

 5    office.

 6               To my right, Erik Sherer.  Erik is with

 7    the Coal Mine Safety and Health, and to his right

 8    William Baughman, and he is the regulatory specialist

 9    from my office.

10               And I would also like to introduce at

11    this time a few people in the audience who were also

12    instrumental in working on this project and helping

13    us develop this ETS and such, in an expeditious

14    fashion.

15               We have on the front row here, Javier

16    Romanach is with the Office of the Solicitor.

17               Clete Stephan with MSHA's Office of Tech

18    Support, Rosalind Fontane with the Office of Tech

19    Support, and Pamela Keene in the back by the table

20    who is with my office.  And the people that I just

21    named were part of the committee that was just

22    instrumental in developing the ETS.

23               Before we start the hearing, I would like

24    to ask if everyone in this room would join me in a

25    moment of silence in memory of the miners who died in

0004

 1    the Sago, the Alma and the Darby accident in 2006,

 2    and also all of the miners who died in the year 2006

 3    and who have lost their lives so far in mining

 4    accidents in this country.

 5               And I would also ask if we would do this

 6    moment of silence in memory of the miners who have

 7    lost their lives worldwide.  So if you would join me

 8    in a moment of silence, I would appreciate it.

 9   (Moment of silence.) Thank you.  As some of you know,

10    this is the second of four hearings on MSHA's

11    emergency temporary standard.  The first hearing was

12    held in Morgantown on Tuesday.  The next hearing will

13    be held in Denver, Colorado on July 17th, and the

14    fourth will be in Birmingham, Alabama on July 19th.

15               In the back of the room we have copies of

16    the ETS and the Federal Register notice extending the

17    comment period to August 17th.  The purpose of these

18    hearings, as many of you who participated in MSHA's

19    rule makings know, is to allow the Agency to receive

20    information from the public that will help us

21    evaluate the requirements in the ETS and produce the

22    final rule that protects miners from hazards

23    associated with sealed abandoned areas.

24               We will also use the data and information

25    gained from these hearings to help us craft a rule

0005

 1    that responds to the needs and concerns of the mining

 2    public, so that the provisions of the ETS can be

 3    implemented in the most safe, effective and

 4    appropriate manner.

 5               We published the ETS in response to the

 6    grave dangers that miners face when underground seals

 7    separating abandoned areas from active workings fail.

 8               Seal failures at the Sago Mine and the

 9    Darby No. 1 Mine in 2006 raised awareness of the

10    problems with the construction and design of

11    alternative seals.

12               MSHA investigated these and other

13    failures of alternative seals, and conducted in mine

14    evaluations of these seals.  MSHA also reviewed the

15    history of seals in the United States and other

16    countries.  On February 8th, 2007, NIOSH issued a

17    draft report entitled "Explosion Pressure Design

18    Criteria for New Seals in U.S. Coal Mines.

19               The report makes recommendations for seal

20    design criteria which would reduce the risk of seal

21    failure due to explosions in abandoned areas of

22    underground coal mines.  Based on MSHA's accident

23    investigation reports, the draft NIOSH report, MSHA's

24    in mine seal evaluations, and review of technical

25    literature, MSHA has determined that new standards

0006

 1    are necessary to immediately protect miners from

 2    hazards associated with sealed areas.

 3               The emergency temporary standard

 4    addresses seal strength, design and installation,

 5    construction and repair, sampling and monitoring and

 6    training.  This ETS was issued in accordance with

 7    Section 101 (b) of the Federal Mine Safety and Health

 8    Act of 1977, the Mine Act, and Section 10 of the Mine

 9    Improvement and New Emergency Response of the Mine

10    Act of 2006.

11               Under Section 101 (B) of the Mine Act,

12    the ETS is effective until superseded by a mandatory

13    standard.  A mandatory standard under the Mine Act

14    must be published no later than nine months after

15    publication of the ETS.

16               And also in accordance with the Mine Act,

17    the ETS serves as the proposed rule and commences

18    this rulemaking proceeding.  As stated earlier, we

19    would use the information provided by you to help us

20    decide how best to craft the final rule.

21               The preamble to the rule discusses the

22    provisions of the ETS and indicates a number of

23    specific requests for comment and information.  As

24    you address the provisions of the ETS, and any

25    specific requests for comment, even in your comments

0007

 1    to us here today, or in information sent to us in

 2    Arlington, please be as specific with respect -- as

 3    possible with respect to the impact on miner health

 4    and safety, mining conditions, and feasibility of

 5    implementation.

 6               At this point, I want to reiterate the

 7    specific requests for comment and information that we

 8    included in the preamble to the ETS.  Number one, in

 9    the ETS, MSHA considered a performance based approach

10    to the strength requirements for seals.

11               However, as you know, MSHA includes

12    specific pounds per square inch numbers when

13    referring to the strength of seals in the ETS as the

14    Agency believes that this approach represents a more

15    appropriate approach.

16               MSHA is interested in receiving comments

17    on the Agency's approach to the strength requirement

18    for seals.  MSHA is also interested in receiving

19    comments on the appropriateness of a three tiered

20    approach to seal strength in the ETS, and the

21    strategy in the ETS for addressing seal strength

22    greater than 120 psi.

23               Under the ETS requirement, new seals must

24    be constructed and designed to maintain -- to

25    withstand a 50 psi overpressure when the atmosphere

0008

 1    in the sealed area is monitored and maintained inert.

 2    A 120 psi overpressure if the atmosphere is not

 3    monitored, and is not maintained inert, and an

 4    overpressure greater than 120 psi if the atmosphere

 5    is not monitored and is not maintained inert and

 6    certain other specified conditions are met.

 7               MSHA requests comments on the

 8    appropriateness of the Agency's strategy for

 9    addressing seal strength greater than 120 psi.  If

10    commenters believe a different regulatory approach

11    should be developed in the final rule, MSHA would

12    like commenters to provide the details for such a

13    strategy, the rationale for such a strategy, and the

14    feasibility of using such a strategy.

15               MSHA seeks the views of the mining

16    community regarding whether there are other effective

17    alternatives to the requirements in the ETS with

18    respect to providing the most appropriate and

19    protective action for miners exposed to hazards of

20    existing sealed areas.

21               Most alternative seals constructed before

22    July, 2006 were constructed to withstand a static

23    horizontal pressure of 20 psi.  MSHA considered

24    requiring mine operators to remove the existing seals

25    and replace them with seals that withstand at least

0009

 1    50 psi.

 2               MSHA also considered whether to require

 3    mine operators to build new seals outby existing

 4    seals, or structurally reinforce them.  At this time,

 5    MSHA believes that replacing existing seals is

 6    impractical, and instances may create additional

 7    safety hazards.

 8               MSHA seeks comments on the feasibility of

 9    including in the final rule a requirement that

10    existing seals be removed and replaced with higher

11    strength seals.  MSHA also considered whether to

12    require mine operators to reinforce existing seals.

13               The Agency is concerned with the

14    feasibility of this option and whether such a

15    requirement could also expose miners to greater

16    hazards.  MSHA however will continue to explore

17    technological advances addressing feasible and safe

18    methods to reinforce existing seals in underground

19    coal mines.

20               Commenters are encouraged to submit

21    information and supporting data regarding new

22    technologies to reinforce seal strength.  MSHA

23    believes that the sampling strategy in the ETS will

24    yield results that reflect a reasonable

25    representation of the atmosphere in a sealed area.

0010

 1               MSHA requests comments addressing the

 2    sampling approach in the ETS.  The Agency is

 3    particularly interested in comments concerning

 4    sampling, the sampling frequency, including sampling

 5    only when a seal is outgassing.

 6               MSHA requests comments on whether another

 7    approach is more appropriate in the final rule, such

 8    as when the seal is ingassing.  MSHA also requests

 9    comments, information, and experiences of the mining

10    community concerning sampling sealed areas.

11               In the ETS, mine operators must develop a

12    sampling protocol to be included in the ventilation

13    plan and submit it to the district manager for

14    approval.  The ETS requires the mine operator to

15    implement the action plan specified in the sampling

16    protocol, or to withdraw all persons from the

17    affected area when specified concentrations are

18    encountered.

19               Action plans must provide protection to

20    miners equivalent to withdraw and address the hazards

21    presented, and actions taken when gas samples reach

22    levels specified in the ETS.

23               Historically, when methane levels reach

24    4.5 percent in active areas of mines, miners were

25    withdrawn from the areas that were dangerous due to

0011

 1    high concentrations of methane.

 2               MSHA requests comments on this approach

 3    and whether it provides adequate protection for

 4    miners.

 5               Commenters are encouraged to submit

 6    specific language, with supporting data for MSHA to

 7    consider as the Agency develops the final rule.

 8               MSHA is soliciting comments concerning

 9    issues related to establish in a sampling baseline.

10    The ETS requires the mine operators specify

11    procedures in the protocol to establish a baseline

12    analysis of oxygen and methane concentrations at each

13    sampling point over a 14 day sampling period.

14               The baseline must be established after

15    the atmosphere in the sealed area is inert or the

16    trend reaches equilibrium.  MSHA is particularly

17    interested in comments concerning the establishment

18    of this baseline.

19               The Agency also requests comments,

20    information and experiences with sampling of sealed

21    areas, including data, analytical information,

22    establishment of equilibrium, and trends.

23               MSHA is requesting comments on the

24    appropriateness of the ETS requirement regarding the

25    use of open flames or arcs associated with cutting

0012

 1    and soldering activities within 150 feet of a seal

 2    and the feasibility of this requirement.

 3               The Agency suggests that commenters

 4    provide specific rationale in support of that

 5    position, and include alternatives, if applicable.

 6    The ETS requires that each newly constructed seal

 7    have at least two sampling pipes.

 8               One sampling pipe must extend into the

 9    sealed area approximately 15 feet.  The second pipe

10    must extend into the middle of the intersection with

11    the first connecting crosscut.

12               The ETS affords flexibility to mine

13    operators for the placement of the sampling end to

14    allow a more accurate sampling strategy to better

15    protect miners.

16               Therefore, the ETS requires that the

17    location of sampling points be specified in the

18    protocol provided under the ETS.

19               And MSHA requests comments on this

20    provision, and the number and the location of

21    sampling pipes for the final rule.  The ETS requires

22    that corrosion resistant water drainage system be

23    installed in the seal at the lowest elevation within

24    a set of seals, and that seals not impound water.

25               MSHA requests comments on this

0013

 1    requirement for water drainage systems, including

 2    effective alternatives for a final rule.  The Agency

 3    also requests comments on the appropriateness of the

 4    ventilation plan content and whether additional

 5    information should be included.

 6               As you know, if you are familiar with the

 7    ETS, the operator must include a number of

 8    information items in the ventilation plan.  When

 9    submitting information, please include your

10    information that supports your position, and please

11    include data related to projected economic and

12    technological feasibility.

13               The ETS requires removal of insulated

14    cables from the area to be sealed, and removal of

15    metallic objects through or across seals.  MSHA

16    believes that removal of insulated cables and

17    metallic objects through or across seals, if

18    feasible, and will not involve significant technical

19    or practical problems.

20               The Agency solicits comments on this

21    provision.  MSHA is also requesting comment on the

22    scope and possible alternatives concerning site

23    preparation, examinations, training, and

24    notifications related to the construction and repair

25    of seals.

0014

 1               The Agency has prepared a regulatory

 2    economic analysis for the ETS.  The regulatory

 3    economic analysis contains supporting cost data.

 4    MSHA requests comments on all of the estimates of

 5    costs and benefits presented in the ETS and the

 6    regulatory economic analysis.

 7               To date, MSHA has received one comment,

 8    and I believe that's still accurate, on the ETS.  You

 9    may view that comment and any other comments that the

10    Agency received on the Agency's website at

11    www.msha.gov, under the section entitled rules and

12    regulations.

13               MSHA has answered a number of compliance

14    questions from the mining public covering a range of

15    issues on the ETS.  These questions and answers are

16    posted on the Agency's seal single source page.  The

17    format of the public hearing, as many of you know who

18    have participated in these hearings in the past know

19    will be as follows: formal rules of evidence will not

20    apply, and this hearing will be conducted in an

21    informal manner.

22               Those of you who have notified MSHA in

23    advance of your intent to speak, or have signed up

24    today to speak, will make your presentations first.

25               After all scheduled speakers have

0015

 1    finished, others can request to speak.

 2               If you wish to present written statements

 3    or information today, please clearly identify your

 4    material.  You may also submit comments following

 5    this public hearing.  To be considered, they must be

 6    submitted to MSHA by August 17th, 2007, the close of

 7    the comment period.

 8               Comments may be submitted by any method

 9    identified in the ETS.  MSHA will post transcripts

10    from the public hearings on the Agency's website.

11    Each transcript should be posted there approximately

12    one week after the completion of the hearing.

13               We will now begin with persons who have

14    requested to speak.  And please begin by clearly

15    stating your name and organization for the record to

16    make certain we have an accurate record.

17               And also, I would like to ask you to

18    spell your name, please, for the reporter, if you

19    would.  Our first speaker is -- at this point we will

20    now start with our first speaker, and our first

21    speaker is Melissa Lee with the Appalachian Citizens

22    Law Center.

23               Miss Lee.

24        MS. LEE:  Thank you all for allowing me to speak

25    today.  I'm Melissa Lee, m-e-l-i-s-s-a, l-e-e. I am

0016

 1    here with my attorney, Wes Addington, with the

 2    Appalachian Center, and Tony Opegard.  This was my

 3    husband.

 4               And I do stress, was my husband.  Again,

 5    I am Melissa Lee, one of five Kentucky Darby widows.

 6    Ugly word, don't you think, widow.  I'm a widow due

 7    to the fact that the seals at Kentucky Darby, which

 8    were built May of '06, were faulty and they were

 9    constructed improperly.

10               But that is only half of the problem.

11    The major problem was the same seals were never

12    inspected or confirmed to have been built properly.

13    They weren't up to standard.  The materials used were

14    not up to code.  The sealant was slapped on the

15    seals.

16               It wasn't even applied properly.  The

17    gentlemen say that they put on a rubber glove and

18    smeared the compound on to the seals.  Smeared.  With

19    that, clearly, MSHA did not approve the sealant.  It

20    was proven that it was not one of the sealants that

21    was to be used.

22               Jimmy was a man who loved his job.  He,

23    I've said before, loved the smell of coal.  Sometimes

24    I would joke that I'm going to have to dab coal dust

25    behind my ears to keep him home on Saturdays instead

0017

 1    of going into work.

 2               And he would laugh and say that's the

 3    only other woman that I have is the mine.  Don't feel

 4    inferior.  Just be a little bit jealous of her.  The

 5    day that the state released the report to us, and

 6    then the MSHA report, it was like I was a bird

 7    sitting on my husband's shoulders.

 8               I owned my own business in 2006.  A new

 9    business.  I had been open almost a year.  Two months

10    and it would have been a year that I had opened my

11    own business with Jimmy backing me 100 percent.

12               I kissed him goodbye on May 19th, 2006

13    with the hopes that the next morning at 4:00 a.m. we

14    were leaving to go away, away for a weekend that we

15    had not had alone in six years.  The report read just

16    like I was sitting on his shoulder hearing

17    everything.

18               He was told by Amon Cotton Brock

19    (phonetic), the foreman, that there was a job that

20    needed to be done.  In the MSHA and state report on

21    Mr. Brock's notepad that he carried in his pocket, it

22    said remove strap.

23               Jimmy was never a miner to leave his

24    foreman hanging.  Jimmy, like I said, loved his job.

25    Little did my husband know that the job he was going

0018

 1    to do would cost him his life, and his fellow co

 2   -workers, which he considered not just his co-workers

 3    but his brothers, Roy Middleton, Paris Thomas, Bill

 4    Petra.

 5               These gentlemen had worked together at

 6    Manila pan mining.

 7               They went to Kentucky Darby at different

 8    times, but they were always, always together.  Isn't

 9    it the oddest thought that they would die together,

10    too.

11               During the explosion, my husband's head

12    was partially -

13               - he was partially decapitated.

14               The top part of his head was removed in

15    the explosion and he had a cylinder impale his chest.

16    Any coal miner sitting in this room, how would you

17    feel if this was the day you kissed your wife and

18    children goodbye.

19               You go to do a job, a job that is not

20    something that is just out of the ordinary.  This was

21    a common job.  Using a torch, to cut a metal strap,

22    was not uncommon.  That was part of a miner's job.  I

23    doubt there's a miner in this room who hasn't at one

24    time or another seen or used a torch to cut a piece

25    of metal underground.

0019

 1               My husband's life was taken from us.  My

 2    husband became a father for the first time at the age

 3    of 30.  At the age of 30, he had become a father to

 4    Seth Grayson.  Eighteen months later he became a

 5    father to Ross Braden.  Ross was 21 months old when

 6    his father died.

 7               He just celebrated his third birthday on

 8    the sixth of July.  When he was 21 months old he

 9    wasn't speaking.  Jimmy never got to hear his son say

10    Daddy or Dada.  He's three years old now.  Seth looks

11    just like his father.

12               The older boys, Jimmy's stepsons that he

13    never referred to as stepsons, are 15 and 13.  I'm a

14    widow, and I hate the word.  So be it, this is what

15    happened at Kentucky Darby.  It can't be swept under

16    the carpet.  I refuse for it to be swept under the

17    carpet.

18               The problem with the seals was the lack

19    of inspection, and please, Ms. Silvey, if I'm

20    correct, if you have a brand new vehicle, and you're

21    driving it, and say for instance it's two years down

22    the road, and you get a card in the mail from GMAC

23    saying we're having a recall on your car, bring it

24    in, what do you do.

25               You take it in and have that faulty piece

0020

 1    of equipment removed and a new one put in.  Why

 2    should we overlook the seals that have already been

 3    built.

 4        MS. SILVEY:  Um-hum.

 5        MS. LEE:  Why should we overlook those and go

 6    on.  Okay, we're going to start inspecting the ones

 7    that are installed now.  That's wonderful.  I have a

 8    brother and two uncles and some cousins that are

 9    miners.  Wonderful.  That's great.  How about the

10    seals that were built in 2006 that have not had a

11    problem.

12               Should they not be removed and

13    reconstructed with MSHA approving their rebuilding.

14    This only is common-sense.  This is not something

15    that is out of the ordinary done.  We do it for our

16    vehicles.  If you build a home, and you use a piece

17    of material that is not up to code, and they have a

18    recall on say, for instance, a piece of sheet rock

19    because of the material that it's made of, they will

20    contact all homeowners and say, you know, you have

21    purchased this in the past.

22               You need to redo your porch, your bedroom

23    wall, for the safety of your children, for the safety

24    of your family.  Why not go back in to every seal

25    that has been built and inspect them, and if they're

0021

 1    not to code, rebuild those, for the safety of all

 2    these men.

 3               I'm sure every one of you who are married

 4    would like to go home to your wife every night,

 5    wouldn't you?  Do you all like to kiss your children?

 6               My husband can no longer kiss his

 7    children.  Seth will be five in December.  Not a day

 8    goes by that he doesn't -- this is his picture.

 9               I had to take this one from his bedroom.

10    He misses his father.  He tells people, when he goes

11    to the playground -- when I take him out to the park

12    in the afternoon, he tells kids in the sandbox, my

13    daddy boomed up to heaven.  That's what my four year

14    old's comments are.

15               The first thing he wants everyone to know

16    is his father boomed up to heaven.  That he went to

17    work and God come and took him in a boom.  No one

18    told my son about the explosion.  That's his

19    explanation because he says God come and told him

20    that.

21               The boom was the cause of faulty sealant,

22    bad craftsmanship, and the fact being that no one

23    inspected those seals when they were built.  No one

24    is being held at fault for those seals, but we are

25    the ones left grieving.

0022

 1               We're the ones that are left behind

 2    without husbands, with kids that don't have daddies.

 3    These three little girls behind me, and my four sons,

 4    miss their daddy.  If you look right here at Natalie,

 5    this is looking at Roy Middleton.

 6               This child -- my husband would say

 7    there's little Roy and Natalie would go errrrrr.  She

 8    would growl.  This is what her -- this is -- if you

 9    look at her, this is what her daddy looks like.  Mary

10    has to look at this child every day and remember Roy.

11               Danielle, her father was proud of her.

12    He bragged about her.  He was all the time -- the men

13    would get together and discuss their children and

14    their accomplishments.  My 15 year old runs cross

15    country.

16               Jimmy went without work tires on his work

17    car to make sure Hayden had his shoes to run here in

18    Lexington during state.

19               My son doesn't have that anymore.  He

20    never was a stepfather.  He was a Daddy, and I no

21    longer have my husband.  I never have to worry about

22    ever dabbing coal dust on the back of my ears anymore

23    to entice him because he's not with me anymore.

24               He was a wonderful, wonderful man, and I

25    miss him dearly.  But I ask you all to take that into

0023

 1    consideration.  These seals could have -- if they had

 2    been inspected like they should have been, maybe they

 3    would have found the fault then and my husband, Roy

 4    Middleton, Paris Thomas, Bill Petra, Cotton Brock,

 5    they never would have died.

 6        MS. SILVEY:  Thank you, Ms. Lee.

 7        MS. LEE:  Thank you.

 8        MS. SILVEY:  I would just like to say before you

 9    leave, Ms. Lee, on behalf of my panel here, and I

10    know I express the feelings for them that, again, we

11    give our sympathies and our condolences to you and

12    your family and your children for your husband.

13               And I know there's no way we can say

14    exactly that we know what you're going through, but I

15    want you to know a little bit that we do.

16        MS. LEE:  Again, Ms. Silvey, I would just like

17    to -- this is not for Jimmy any longer.  This is for

18    my brother Bobby, my Uncle John, the ones that are

19    left mining.  Nothing brings Jimmy back, nothing.

20    But you all can save other miners.

21        MS. SILVEY:  Thank you.  Next, we have Mary

22    Middleton, Appalachian Citizens Law Center.

23        MS. MIDDLETON:  My name is Mary Middleton, m-

24               a-r-y, m-i-d-d-l-e-t-o-n.  I am the 32

25    year old widow of Roy Middleton that was killed by

0024

 1    carbon monoxide poisoning at Kentucky Darby May 20th

 2    of 2006.  We were married for 13 years and we had two

 3    daughters.

 4               My oldest daughter, Danielle Middleton,

 5    age 18, Natalie -- I mean 14, and my youngest, age

 6    eight.

 7               My husband, he worked in the mines for

 8    practically half of his life, which was 18 years

 9    because he was just 35 years of age when he was

10    killed.

11               And he had been employed with Kentucky

12    Darby for three years.  He had worked for Ralph

13    Napier at previous mines, but for three years at

14    Kentucky Darby.

15               He was a repairman/electrician is what he

16    held as his job duties, the last of his job, it was a

17    repairman and electrician.

18               And I would just like to talk to you all

19    today about these seals.  I feel like if the seals

20    had been built stronger at Kentucky Darby, that my

21    husband would probably still be alive today because

22    the carbon monoxide wouldn't have got through them

23    and that's what killed him.

24               My husband, he was a devoted Christian

25    and a Deacon at the Church of God.  He was just the

0025

 1    greatest guy ever and the best father.  He really

 2    didn't like coal mining, but it was just a way of

 3    living in Harlan because we had children, and that's

 4    about the only source of work that you could work at

 5    to make a decent living.

 6               And I feel like if the seals had been

 7    built properly at Kentucky Darby, even at a 20 psi

 8    standard, they may have withstood the explosion, or

 9    at least lessened the impact of the explosion, and

10    perhaps the overcast -- the overcast had fallen in

11    the roadway and that's why my husband could not

12    escape, him and two other miners.

13               And I agree that the company should have

14    to make sure that all equipment is removed from the

15    area to be sealed, just sealed off, not to leave

16    anything, any old equipment, anything back behind

17    there.  And I also think it's important to remove any

18    metal straps that extend from the working part of the

19    mine into the sealed areas because that was a problem

20    at Kentucky Darby.

21               And I'm asking you today to please do not

22    weaken these rules so that the coal -- I have these

23    two pictures here of the -- money can't buy this.  I

24    had this family, but money -- by spending money, you

25    can prevent another wife or child from having to go

0026

 1    visit -- we go visit our husband and father now.

 2               I don't want another family to have to be

 3    experiencing what me and my daughters are going

 4    through right now.  Thank you.

 5        MS. SILVEY:  Thank you, Ms. Middleton.  And

 6    again, on behalf of our panel here, I would like to

 7    express our sympathies to you and your daughters and,

 8    you know, we are so very sorry.  And that's -- with

 9    you, that's one of the reasons we issued this ETS,

10    but we do express our sympathy.  Thank you.  Next, we

11    have Ms. Priscilla Petra.

12        MS. PETRA:  Petra.

13        MS. SILVEY:  Right, Petra.

14        MS. PETRA:  My name is Priscilla Petra, p-r-

15               i-s-c-i-l-l-a, p-e-t-r-a, and I am the

16    widow of George W. Petra.  Most people know him as

17    Bill.  His family called him Billy.  We've been

18    married for 16 years.  We have two children, William

19    Daniel, Little Bill, and Ashley who's 12.  She's with

20    me.

21               Bill was working the mines for I guess

22    more than 25 years, and he spent a lot of time at

23    Kentucky Darby.  He was 49 when he died and his death

24    I truly believe was because of carbon monoxide from

25    the seals.

0027

 1               As Melissa has clearly explained, they

 2    weren't built properly, and I don't want him to be

 3    just a statistic or a name on a list of dead miners.

 4    I want his death to make a difference for the miners

 5    who are still working to provide for their families.

 6               So the reason that I'm here today is to

 7    support the rule for stronger seals.  Had the seals

 8    at Kentucky Darby been built properly, my husband

 9    Bill and the other miners I believe could have made

10    it out because the seals could have held.

11               Instead, the seals were so -- the seals

12    were so poorly constructed that I believe that it

13    wouldn't have withstood about 4 psi.  And that's

14    pretty pitiful.

15               I know that there's already been some

16    opposition to the rule.

17               I know that there has been men who have

18    argued that the rule is too stringent, that it will

19    cost the coal companies too much money, that MSHA

20    should give full control to professional engineers to

21    build the seals, but hasn't the coal companies and

22    these engineers already had control for years.

23               And look at just in the past year, 17 men

24    have died because of improper built seals.  Coal

25    operators, since mining began in this country, have

0028

 1    been entrusted with the lives of thousands of men,

 2    and they've repeatedly violated safety rules and

 3    ignored MSHA's warnings and have lived above the law.

 4               They are in a class of their own.  They

 5    think that they live above the law.  If I'm out there

 6    driving a car and I cause an accident, and somebody

 7    dies, I have to pay that price.  I mean I'm going to

 8    be liable.

 9               Are coal operators liable?

10               It seems like they can get away with

11    murder.

12               And yet, they are above the law.  They

13    can't be prosecuted for criminal charges when they

14    are at fault for the deaths of these men.  How many

15    more wrongful deaths are going to have to take place

16    before these rules are truly, truly enforced.

17               I think operators have proven that they

18    can't be on that honor system.  They've got to have

19    someone standing over them making sure that they do

20    their job to provide a safe working place.  You know,

21    men have a choice.

22               They don't have to work in the mines.

23    You know, I've heard people say, well, you know, your

24    husband didn't have to go in that mine.  Well, no he

25    didn't, but then you look at our area in Harlan and

0029

 1    what else is there to provide for your family.

 2               I think the coal industry makes millions

 3    of dollars on the backs of coal miners, and money can

 4    make the mines a safer place.  It's not the problem.

 5    The problem is they don't care.  They don't want to

 6    take the time to build these things correctly.

 7               I guess if they slow down production,

 8    that means less money for them, but yet I have --

 9    even if they slow down on production and they bring

10    in less money, I still haven't seen a coal operator

11    in a food stamp line or -- I've seen coal operators

12    with million dollar homes.

13               I mean they're making that money.  They

14    can make these mines safer and I'm just -- they knew

15    to make sure that they do their job right.  So don't

16    back down.  MSHA has finally began to recognize that

17    the system has failed miners.

18               The rule for stronger seals is very

19    important.  Every time that men goes in the mine with

20    the seals that are not properly built, it's like

21    playing Russian roulette.  Well, maybe tonight it

22    won't explode.  Maybe tomorrow night we go in we

23    won't come home.

24               Please don't allow political pressure,

25    and pressure from the coal industry, to cause you to

0030

 1    water down the rule or to change it.  Make operators

 2    liable for their actions.  Every other citizen and

 3    worker in this country has to abide by the law.

 4               Coal operators and the coal industry

 5    should not be exempted.  My children don't have their

 6    father.

 7               Had Ralph Napier and his foremen, had

 8    they trained those men properly, had they done what

 9    was right, he would be home today.

10               And when my daughter has her first prom,

11    he would see her there in her prom dress.  When Bill

12    or Ashley get married, he would be there.  Now, who's

13    going to walk her down the aisle.

14               You know, he's not going to see his first

15    grand baby, and I just really beg you to please keep

16    the rule as it is and make sure it's enforced.  Thank

17    you.

18        MS. SILVEY:  Thank you, Ms. Petra, and we want

19    to express our sympathies to you and to your family

20    also.  We understand.  Thank you.  Next we have Scott

21    Howard, Appalachian Citizens Law Center.

22               At this point we are going to -- at this

23    point then, for the audience, we are going to view a

24    video, and so that's the next in the presentation

25    from the Appalachian Citizens Law Center.  So if you

0031

 1    would just let us take a minute, please.

 2   (Whereupon the video was viewed.)

 3        MS. SILVEY:  Thank you Mr. Howard.  Maybe I'll

 4    ask Mr. Opegard a few questions.  He probably would

 5    prefer that instead of you.

 6               Just after continuation of the video, and

 7    in terms of my responsibility here, Mr. Opegard,

 8    representing MSHA, if we could get the name of the

 9    mine, for the record, and when was the video taken,

10    and are these seals still in existence.  And if you

11    could --

12        MR. HOWARD:  It's on the video.  When you watch

13    the video you got, the sound on it, it will tell you

14    the date that the video was taken, the mine, the

15    company, the session.  I narrated it on --

16        MS. SILVEY:  Oh, that's on the video?

17        MR. HOWARD:  Yeah, if you listen to the sound,

18    it's on there.

19        MS. SILVEY:  That's fine.

20        MR. OPEGARD:  It was taken on April 20th, but we

21    would ask if you --

22        MS. SILVEY:  April 20th of this year?

23        MR. OPEGARD:  Yes.  We would ask that if you --

24    Mr. Baughman had told me on the phone that you might

25    put it on the Web, on your website.  We would ask if

0032

 1    you do that that the narration not be included, that

 2    it be muted.

 3        MS. SILVEY:  Okay.  We have not decided that

 4    issue.

 5        MR. OPEGARD:  Okay.

 6        MS. SILVEY:  Okay.  All right.  Okay, well,

 7    again, thank you, Mr. Howard.  And as Mr. Howard

 8    said, we will all know that that information is on

 9    the --

10               it's on the video so that everybody -- so

11    we will look at that information and we will take the

12    actions that we -- that the Agency, from an Agency

13    standpoint, that we have to, with respect to that

14    mine and those seals.

15               Is there anything else you want to say

16    about that?

17        MR. SHERER:  We will put it in the record and it

18    will be available.

19        MS. SILVEY:  Yeah, we will put it in the record,

20    too, yeah.

21        MR. OPEGARD:  Mr. Howard wanted to make it clear

22    that he was presenting the video to MSHA as evidence.

23    So, you know, as his lawyer, we would certainly

24    consider that protected activity under the Mine Act

25    for Section 105 (c).

0033

 1        MS. SILVEY:  Okay.

 2        MR. OPEGARD:  We want to make that clear.

 3        MS. SILVEY:  Okay.

 4        MR. OPEGARD:  We don't expect any retaliation

 5    against him for coming forward to this public

 6    service, what he's doing.

 7        MS. SILVEY:  Okay.  That's duly noted.  Thank

 8    you.  Before I -- before I proceed with the next

 9    witness, Mr. Addington, we had another person who

10    helped tremendously on this rule, and I missed -- you

11    know, you know when you're calling people's names,

12    inadvertently you miss somebody, and he's our field

13    representative, Dennis Swintosky (phonetic).  Dennis,

14    are you here?

15        MR. SWINTOSKY:  Yeah.

16        MS. SILVEY:  Where is Dennis?  And he's probably

17    just not --

18        MR. SWINTOSKY:  I'm glad you missed me.

19        MS. SILVEY:  No, he's just giving me a break.

20               Trust me.  He's just smiling, always

21    smiling and so I'm sorry.  I apologize for missing

22    Dennis.  Okay, next we will have Mr. Wes Addington

23    with the Appalachian Citizens Law Center.

24        MR. ADDINGTON:  Ms. Silvey, members of the

25    panel, and those within the Agency that are present

0034

 1    in the room.  My name is Wes Addington, a-d-d-i-n-g

 2   -t-o-n.

 3               I'm an attorney and I'm testifying on

 4    behalf of the Appalachian Citizen Law Center.  It's a

 5    mine safety project.

 6               The Law Center is a nonprofit law office

 7    in Prestonsburg, Kentucky.  We abdicate for

 8    additional protections for coal miners.  We represent

 9    miners that have been discriminated against for

10    making complaints about safety and conditions in the

11    mines.

12               We also represent miners and widows in

13    black lung benefits claims.  Seal strength

14    construction and monitoring is an area of grave

15    danger in the nation's mines.  I applaud MSHA's

16    emergency temporary standard on mine seals and

17    commend this panel and the rest of the Agency for the

18    work they've completed, and for their continued work

19    towards a final rule.

20               I urge MSHA to retain the current

21    protections for miners in the ETS, not to weaken the

22    rule in any way, and actually to increase protections

23    for miners in a few areas that I will discuss.

24               Turning to 75.335, seal requirements, 335

25    (a), seal strength, I applaud the new requirements

0035

 1    for seal strength and monitoring of new seals.

 2               Unfortunately, the disasters at Sago and

 3    Darby illustrated that the former requirements for

 4    seal construction and monitoring were completely

 5    inadequate to protect miners in this country.

 6               Requiring that all seals designed to

 7    withstand less than 120 psi to be monitored and

 8    continuously maintained inert is a major step to

 9    protect America's miners.  More than doubling the psi

10    requirement of all new seals and requiring monitoring

11    in an inert atmosphere behind all existing seals

12    designed to withstand under 120 psi is commendable.

13               However, I would question the ETS's

14    failure to require at least a 50 psi standard for

15    existing seals constructed before May 22nd.  I don't

16    understand how MSHA can do such a good job of

17    providing solutions to this admitted grave danger

18    looking forward, yet completely fails to address the

19    grave dangers that is currently lurking for 30,000

20    miners in 372 of the nation's mines.

21               The ETS raises a number of solutions for

22    existing seals, such as replacement, reinforcement,

23    or building new seals outby existing seals.  But the

24    Agency discounts each approach because they may not

25    provide optimal results in some cases.

0036

 1               Just because you don't have a one-size

 2   -fits-all solution for existing seals doesn't mean the

 3    correct approach is to effectively do nothing about

 4    this grave danger.  The final rule must provide a

 5    solution, if not multiple solutions, to bring all

 6    existing seals up to the 50 psi standard.

 7               Turning to 335 (b), sampling and

 8    monitoring requirements, I commend the new sampling

 9    and monitoring requirements, including requiring a

10    certified person to do the monitoring and requiring

11    that they be retrained annually.

12               It's correct to continue to define inert

13    as less than three percent methane or more than 20

14    percent methane.  However, I would like to see more

15    explanation in the final rule as to what "not all

16    close to explosive range" means, in cases where the

17    district manager can approve a less frequent sampling

18    strategy.

19               I would like a further explanation of

20    what does "far less or far greater" mean as it's

21    listed currently in the comments.  It's a good idea

22    to have monitoring protocol approved as part of the

23    ventilation plan.

24               This builds in a layer of accountability,

25    not only for the mine operator but also for the

0037

 1    Agency.

 2               MSHA did a good job throughout the ETS of

 3    creating accountability across the board for the

 4    design, construction and monitoring of seals.

 5               However, I do have a problem with 335 (b)

 6    (4) regarding the action plan that must be approved

 7    by MSHA.  The plan goes into effect when the

 8    atmosphere behind the seal is in the explosive range

 9    for two hours, if I'm reading the rule correctly.

10               The ETS says that the action plan must

11    provide protection to miners equivalent to

12    withdrawal.

13               I'm not sure how that even theoretically

14    is possible because if you created a situation where

15    the atmosphere behind a seal is in the explosive

16    range, dictating that this action plan go into

17    affect, well, obviously there's some concern there,

18    and I don't understand how anything could be

19    equivalent to withdrawal, I mean unless there is some

20    noted danger outside the mine.

21               So I would recommend withdrawal when the

22    atmosphere is explosive behind a seal.  The record

23   -keeping requirements regarding hazardous conditions

24    in 335 (b) (6) are necessary and should already be

25    standard practice in a safe mine.

0038

 1               335 (c), prohibition of the use of open

 2    flames or arc within 150 feet of a seal is protection

 3    that may prevent a repeat of a Darby.  Turning to

 4    336, seal design, I commend the Agency for requiring

 5    the seal design applications and installation

 6    procedures be approved prior to construction.

 7               Professional engineers should certify the

 8    seal design application and should oversee

 9    installation and should certify that the installation

10    complies with the site specific seal design.  This

11    also adds a layer of accountability for the safety

12    and confidence for miners and mine operators that

13    they desperately need.

14               Turning to 337, seal construction and

15    repair, I applaud the removal of all metallic objects

16    behind or through seals.  Darby also showed that this

17    should be done.  I applaud the requirement of a

18    certified person, persons present before, during and

19    after seal installation as noted in 337 (b).

20               Also the countersigning requirement by

21    mine management builds in accountability and provides

22    a standard for mine management to stay involved

23    during seal construction.  335 (c) is a good

24    requirement.

25               Mine management should already want to

0039

 1    know whether the seal was installed as designed.

 2               Certification of this fact is no burden

 3    whatsoever.  337 (b), notification requirements are

 4    necessary so MSHA can properly oversee seal

 5    construction.

 6               I do recommend amending a few of the

 7    record-keeping requirements, however, and

 8    specifically looking at the graph on Page 811, and

 9    looking at 337 (e), training, and in the comments,

10    MSHA notes that failure of a seal may result in

11    significant injury, loss of life and/or significant

12    economic loss.

13               Based on recent explosion investigations,

14    MSHA learned that numerous persons involved in

15    constructing seals that failed were not adequately

16    trained.  And then you go on to list the new record

17   -keeping requirements for training.

18               However, unlike other record-keeping

19    requirements in the ETS, the certification of

20    training for miners doing the construction of these

21    seals is only one year.  Well, if we have a seal

22    failure outside of that time period, those records

23    are no longer available during the investigation

24    process that MSHA noted that was so important in

25    finding out what led to the failure.

0040

 1               And I sort of have the same problem also

 2    with 337 (b) (5), and that's the record-keeping of

 3    examinations.  And the way I read that, those would

 4    be examinations that were conducted during the

 5    construction of the seal.

 6               So you would sort of have the same

 7    problem.

 8               I think both 337 (b) (5) and 337 (e)

 9    should be just like other provisions in the ETS, and

10    those should be kept for as long as the seal is used

11    for the design that it was built.

12               And that concludes my comments on the

13    ETS, and I just want to reiterate my support of the

14    ETS and my appreciation for the work that MSHA has

15    done in this regard and in an area of grave danger.

16    Thank you.

17        MS. SILVEY:  Thank you, Mr. Addington.  I just

18    have one comment, Mr. Addington, before we get to Mr.

19    Opegard, and that is with respect to the existing

20    seals, and I want to clarify to everybody here also.

21               And maybe it didn't come through quite as

22    clearly as we intended it in the ETS, that with

23    respect to existing seals, the Agency -- the

24    requirement was that they be immediately sampled and

25    monitored on the effective date of the ETS.

0041

 1               And so the Agency requires that the

 2    operators immediately inspect and sample existing

 3    seals, and also the Agency will be continuing its

 4    inspection of existing seals.  Also, if with respect

 5    to existing seals, while you're right, the ETS -- and

 6    I mentioned that in my opening statement, did not

 7    require wholesale removal and repair of existing

 8    seals.

 9               But if when -- upon inspection of

10    existing seals, that hazardous conditions were found,

11    are found in terms of high gas levels, then the -- as

12    with even the new seals, the ETS still requires that

13    corrective actions be taken and that those seals

14    either have to be inert or if they can't be, then new

15    seals have to be constructed as we said, and maybe

16    you said that, too, have to be constructed outby that

17    seal.

18               Now, obviously it doesn't mean that --

19    you all understand what I'm talking about.  It has a

20    round perimeter of a seal outby so the standard is

21    constructed in that manner.  So just so everybody

22    understands.  Some corrective action with respect to

23    existing seals.

24        MR. ADDINGTON:  And if I may briefly just

25    respond.  I do applaud MSHA's work in the area of

0042

 1    monitoring all seals.  I still would like to

 2    reiterate, though, I feel as though that there is a

 3    grave danger here.

 4               MSHA has recognized that, thus we have an

 5    emergency temporary standard, which is a rare

 6    occurrence.  And I feel that existing seals, the

 7    strength of those seals, should be addressed and then

 8    brought up to the same standard in which new seal

 9    construction is required.  Thank you.

10        MS. SILVEY:  Okay.  Thank you, Mr. Addington.

11               Now, next we will hear from Tony Opegard.

12    Mr. Opegard.

13        MR. OPEGARD:  My name is Tony Opegard.  I'm

14    testifying on behalf of the Appalachian Citizens Law

15    Center of Prestonsburg, Kentucky, the same law office

16    that Wes works for, but I'm also in private practice

17    and I'm the attorney for Melissa Lee, Priscilla

18    Petra, Mary Middleton and Childa (phonetic) Thomas

19    who couldn't be here today, all of whom lost their

20    husbands in the Kentucky Darby explosion and it's

21    aftermath.

22               And I'm also the attorney for Paul

23    Ledford who is the sole survivor of the Kentucky

24    Darby disaster.  Mr. Ledford was going to testify

25    today and he could not be here either.

0043

 1               I also applaud MSHA for this rule, and

 2    I'll say specifically Mr. Stickler, too, for getting

 3    this rule out before it was mandated by Congress and

 4    getting it out in time to help save miners' lives.

 5               And I know most of you on the panel, and

 6    I know you're all good people, and you all care about

 7    miners.  I know Clete was on the panel in Morgantown,

 8    and John Urosek and Clete Stephan, and in my

 9    experience, nobody cares more about miners and mine

10    safety than they do.

11               So I know you're all going to try to do

12    the right thing.  Having represented these five

13    Kentucky Darby families since the disaster, I've seen

14    some of what they have had to endure as a family.

15    They're some of the most humble, finest people I've

16    ever met.

17               You know, it's difficult to watch

18    families grieve and suffer because of the loss of

19    their husbands, their fathers and their brothers.  We

20    asked them to travel long distances today to testify

21    so that MSHA can see the pain and agony that weak

22    mining regulations could cause, and we wanted to put

23    a human face on this tragedy.

24               As Priscilla said, she doesn't want Bill

25    just to be a name on a list of miners who have died,

0044

 1    and we don't want any of these miners just to be a

 2    number or a name.  There's human consequences for

 3    these failures and they're far reaching.

 4               What you don't see today, although

 5    Melissa talked about them, is some of the smaller

 6    children, like Ross who is three and Seth who is

 7    four, who will never see their dads again.  And I

 8    know we can all relate to that, just as the older

 9    children who are here will never see their fathers

10    again.

11               I'm also the attorney for Scott Howard

12    who showed the video, and I just want to state on the

13    record that Scott is one of the bravest coal miners

14    I've ever met.  And I hope you understand, and I hope

15    you all appreciate the guts it takes for an Eastern

16    Kentucky coal miner, working in a non UMWA mine, to

17    testify on behalf of his fellow miners and how rare

18    that is.

19               I really do feel that MSHA should be

20    holding these hearings in the coal fields.  I don't

21    consider Lexington the coal fields.  I think you

22    should be in Hazard or Harlan, places where miners --

23    it's more accessible to miners, but having said that,

24    the reality is that nonunion miners aren't going to

25    come to these hearings and testify because they're

0045

 1    afraid of retaliation.

 2               They appreciate it when the widows speak

 3    out.  The widows have had a lot of miners talk to

 4    them about how much they appreciate what they are

 5    saying, because they, the miners, cannot say it

 6    themselves.  In going back to Scott, you know, how

 7    many of you or any of us in this room have ever

 8    risked our job and our livelihood to help our fellow

 9    employees.

10               And that's exactly what Scott's doing by

11    being here today.  During my career as an attorney

12    I've represented about 130 miners in 105 (c) cases,

13    and most of these are miners who were fired, almost

14    all of them from Eastern Kentucky for complaining

15    about unsafe conditions.

16               And that's a fact of life.  You know, if

17    you complain about unsafe conditions in a nonunion

18    mine in Eastern Kentucky, chances are you're going to

19    be fired.

20               You're going to be labeled a troublemaker

21    and I want to commend Scott for coming before you

22    because it was a great act of courage.

23               And it's probably unprecedented in any

24    hearing that MSHA has ever had to have a miner come

25    in and show a video of actual conditions in his mine.

0046

 1    In the 2007 session of the Kentucky General Assembly,

 2    I helped to write and lobby for a stronger state mine

 3    safety law.

 4               That bill, which was introduced by

 5    Representative Brent Yantz (phonetic), and eventually

 6    passed the House and the Senate and became law in

 7    Kentucky, contained about a dozen provisions that

 8    exceed the requirements of the federal mine safety

 9    law.

10               The bill encountered fierce opposition

11    from the Kentucky coal industry, and which provision

12    of that proposed state mine safety bill do you think

13    generated the most intense opposition from the

14    industry.

15               Well, it was a provision that would have

16    required coal mine operators to certify that the

17    seals in their mines were built according to the

18    specifications submitted to MSHA in the mine seal

19    construction plan.  That was the biggest topic of

20    disagreement.

21               That generated the most heat from the

22    industry.  And why is that?  It's because operators

23    don't want to be held accountable.  They do not want

24    to be held accountable for building seals correctly.

25    When we first wrote the provision in the state law,

0047

 1    it was very similar to what MSHA has now.

 2               We would have required that a certified,

 3    a professional engineer, certify that the seal was

 4    built according to the specifications.  Through

 5    negotiation, debate, that was weakened to where it

 6    was no longer a professional engineer.

 7               It was the mine superintendent, or the

 8    mine manager had to certify.  We could live with

 9    that.

10               Industry couldn't live with that.  They

11    got it weakened further.  The next draft of the bill,

12    which was now the third draft, said that a senior

13    mine official, not designating a mine superintendent

14    or the mine manager, just a senior mine official, had

15    to certify that the seal was built according to the

16    specifications.

17               Then it was weakened even further.  We're

18    getting -- the bill has already passed the House.

19               We're getting near a vote in the Kentucky

20    Senate, which is going to determine whether our bill

21    goes through or not.

22               The fourth version of the bill said, "to

23    the best of their knowledge and belief, a senior mine

24    official must certify that the seal was built

25    properly."  So at this point, it's basically

0048

 1    worthless, if all you have to do is say, well, to the

 2    best of my knowledge and belief, it was built the way

 3    it was supposed to be.

 4               That's the honor system that my clients

 5    have spoken about.  The honor system that's been in

 6    place for decades, and it's worthless.  It doesn't

 7    work.  You can't just say, well, here's

 8    specifications.  Build it this way, then never check

 9    and see whether it has been built that way.

10               And the fact that is -- as Mr. Stickler

11    has acknowledged, I think, and we met with him in

12    April, he said in the previous three months, MSHA had

13    found over 500 seals in the United States that were

14    not built according to their specifications.  That's

15    a major problem.

16               On the eve of the vote in the Kentucky

17    legislature, our provision requiring certification of

18    mine seals was dropped completely.  We were told by

19    the committee chairman that it was dropped because of

20    frantic calls from the coal industry up until 11:00

21    o'clock the night before the vote, from lobbyists to

22    the Republican leader of the Kentucky Senate saying

23    we can't live with this provision.  And in fact, it

24    was dropped.

25               The bill went ahead and it was approved

0049

 1    without that provision.  Steve Role of United Mine

 2    Workers is a tireless lobbyist for mine safety.  He

 3    and I were helping to lobby for this bill, and he and

 4    I and Wes Addington were told by the chairman of the

 5    committee in the Senate, that we had to sit down with

 6    lobbyists from the coal industry to discuss our

 7    differences.

 8               That they objected to the many provisions

 9    in the bill.  So we want you to sit down and see if

10    you can reach any compromises so we can get this bill

11    passed.  And we did that.  We sat down with the major

12    lobbyist for the coal industry in Kentucky, a

13    prominent coal attorney as well, to discuss any

14    compromises we might could make on the bill.

15               And the industry made it very clear to us

16    that they would not accept any type of accountability

17    when it came to the building of seals.  Some of the

18    questions they asked us were do you actually expect

19    us to have a person watch the seals being built to

20    make sure that they are being built correctly.

21               Now, is that a major imposition to have

22    somebody make sure the seals are being built the way

23    that you told MSHA they're going to be built.  I

24    don't think so.  Not when you consider that it's

25    miners' lives that are at risk if they are not built

0050

 1    properly.

 2               They complained that they could never get

 3    engineers to go underground to certify these.  It

 4    would be too expensive.  Engineers don't want to go

 5    underground.  Well, engineers are underground all the

 6    time.  Companies, a lot of them have engineers within

 7    their safety departments and other companies hire

 8    them out.  That's not a big problem either.

 9               Although the industry knew that 17 miners

10    had just been killed because seals were blown out in

11    Kentucky and West Virginia, and that the lives of

12    thousands of Kentucky coal miners depend on seals

13    being built properly, the industry's lobbyists' only

14    concerns were cost and accountability.

15               They don't want to be held accountable,

16    period.  And we feel that this rule will hold the

17    industry accountable.  If a single one of those

18    wealthy coal lobbyists, or the rich industry

19    attorneys who complain that these rules are too

20    burdensome, had a spouse or a son or a parent working

21    in the mines in Eastern Kentucky, we would hear a

22    completely different tune from them.

23               My clients are the people who suffer when

24    production is valued more than human life.  Coal

25    miners are the people who suffer.  The lobbyists

0051

 1    don't.

 2               According to MSHA's Federal Register

 3    Notice, there are almost 31,000 miners working

 4    underground today in the United States in mines that

 5    contain seals.

 6               That's approximately three-quarters of

 7    all the underground miners in the United States, and

 8    every one of these miners potentially could be

 9    affected by a faulty or inadequate seal.  So the

10    families of these 31,000 miners, all of whom are

11    potential widows and orphans, just like my clients,

12    are depending on you to keep this rule strong.

13               So I'm asking you not to let them down by

14    weakening this rule.  You don't want to have another

15    hearing six months from now, or a year from now, and

16    have other widows and children without fathers coming

17    before you.  Don't bend under the pressure that the

18    coal industry is going to try to exert on you.

19               And I've seen that there's at least 30

20    some people signed up to testify after us today, and

21    I'm sure most of them are going to oppose this rule,

22    and you're going to have a lot of opposition.  Hank

23    Moore, an industry attorney, was quoted in the paper

24    as saying on Tuesday at the hearing in Morgantown

25    that the Sago explosion was an aberration.

0052

 1               One can argue that point, but regardless,

 2    Kentucky Darby was not an aberration.  If there had

 3    been properly built 50 psi seals at the Kentucky

 4    Darby mine on May 20, 2006, five miners would be

 5    alive today.

 6               And we mustn't forget Paul Ledford, the

 7    survivor of that disaster, who is suffering mentally

 8    and physically because of the disaster.  Although he

 9    lived, he wouldn't be suffering today either had we

10    had 50 psi seals.

11               And what Priscilla said was accurate.  We

12    were told by MSHA that those seals at Darby were so

13    poorly built that they probably would not have

14    withstood a four psi explosion, or that was the

15    maximum they would have, even though the standard was

16    20 psi.

17               Seventeen West Virginia and Kentucky

18    miners died last year because of inadequate and

19    improperly built seals.  How many dead miners does it

20    take to insist on a rule that's actually going to

21    protect miners.

22               There is no reason why one more miner

23    should die because of inadequately constructed seals.

24    You have the power to help prevent another such

25    tragedy.

0053

 1               You have to make coal operators

 2    accountable for protecting the safety of their

 3    employees, which is exactly what we believe this rule

 4    will do.

 5               And I don't want to reiterate what Wes

 6    said.

 7               I just have a few comments about the

 8    specific provisions in the rule, and although my

 9    clients are very supportive of the rule, let me

10    discuss briefly the one part of the rule that they're

11    not supportive of.

12               And as you might guess, this is the part

13    about the existing seals.  MSHA issued the ETS

14    because of the quote, unquote, grave dangers to which

15    miners are exposed because the seals are not

16    explosion proof.

17               And as you know, the Coal Act, as far

18    back as '69, required explosion proof seals.

19               MSHA has admitted that the Agency erred

20    in 1992 when it determined the 20 psi seals were

21    explosion proof.  There's 31,000 miners working in

22    mines today that have portions of the mine sealed and

23    everyone of these miners is at risk.

24               Therefore we believe that the final rule

25    should include the requirement that all existing

0054

 1    seals be replaced with the higher strength seal.  If

 2    it's not feasible to replace a particular seal, and I

 3    understand it may not be in every case, then we

 4    believe that operators should be required to

 5    reinforce existing seals to meet the higher standard.

 6               What Wes was saying about the one size

 7    fit all, I know you all have heard Abbott McAteer his

 8    phrase that the perfect is the enemy of the good.

 9    And you know, the industry uses that all the time.

10    Well, we don't have a perfect mine refuge chamber.

11               Therefore we can't use any in any mines

12    or, you know, there's some seals that won't fit so

13    therefore we shouldn't do anything.  Do what's best.

14               You know, make those seals stronger, and

15    if you have a problem, then we'll deal with it and

16    find a way to do the best that you can.

17               I know that existing seals right now have

18    to be monitored, but I want to try to be realistic

19    about monitoring and compare it to pre-shift exams.

20    And if you're in a small nonunion mine,

21    realistically, honestly, pre-shift exams aren't done

22    in a lot of them.

23               There's something in one of the internal

24    reviews recently that said -- noted that pre-shift

25    exams clearly weren't being done because -- I forget

0055

 1    what percentage it was.  Like 80 or 90 percent of the

 2    measurements noted in the exam book were exactly the

 3    same for a year period.

 4               I mean, you know, someone was just

 5    writing down a air measurement, calling it outside or

 6    whatever.

 7               They weren't doing the exams.  And

 8    realistically, a lot of small operators, are not

 9    going to -- they're not going to take the time and

10    trouble to monitor behind these seals.

11               And I really think that MSHA is fooling

12    itself if you think that they are.  If you think that

13    monitoring behind seals is going to be done correctly

14    and accurately by the majority of operators, I think

15    you're fooling yourself.

16               The seals at Kentucky Darby were not

17    checked properly.  We had testimony during the

18    interviews that two miners traveled together.  One

19    miner did a test, told the other what he found and he

20    wrote it in the book and certified it, even though he

21    had no idea whether that information was accurate or

22    not.

23               One foreman could have found four percent

24    methane leaking out of that seal, said I found .1.

25    The other guy marks down .1 and certifies it.  And

0056

 1    that's if they're being done at all.  We found at

 2    Kentucky Darby that there was no on shift

 3    examinations done for 11 months, on the second shift,

 4    on the outby areas, and MSHA missed that,

 5    unfortunately.

 6               But ordinarily, if no on shift exams are

 7    being done, they would just mark them in the book

 8    that they were done and sign them.  Why they didn't

 9    in that case, who knows.  But the point I'm trying to

10    make is don't rely on monitoring.

11               Make the companies build stronger seals.

12    If I was a miner, I would feel a whole lot better

13    knowing that I had a 50 psi seal than a 20 psi seal

14    that is supposedly being monitored.  Scott's video

15    shows you the conditions of those seals.

16               I mean would you want to be working in

17    that mine?  If you didn't have a way out, if those

18    seals collapsed, would you want to be in there?  I

19    wouldn't.

20               You're not supposed to have water pouring

21    out of the seals.

22               Out of the water trap, yeah, but not out

23    of the other parts of the seals.  In 75336, the

24    certification by a professional mine engineer, this

25    is a critical part of the rule, and I hope you don't

0057

 1    back off of that.

 2               Don't weaken that to be a senior mine

 3    official, or to the best of the knowledge or belief

 4    of somebody.  Make an engineer do it, and then, you

 5    know, someone can be held accountable.

 6               If an engineer is given -- you know,

 7    testifies falsely or certifies falsely, his license

 8    can be at risk.  You know, all of us who have

 9    licenses, whether we're doctors, lawyers, whoever,

10    you know, you have to meet certain standards or you

11    can lose that license.

12               An engineer should be the same and coal

13    companies should have to -- when they certify that

14    something is done, it should be accurate.  Miner's

15    lives depend on it.  We agree with the construction

16    provisions in 75.337, removing cables, et cetera,

17    batteries and all of that from the sealed area.

18               Direct supervision of making seals.

19    That's critical.  Training is critical.  What we

20    found at Kentucky Darby was these guys didn't know

21    what they were doing.  I mean the supervisor didn't

22    know what he was doing.

23               The miners didn't know what they were

24    doing.

25               They just did what they were told.  They

0058

 1    were, you know, putting it up half way, just throwing

 2    the things together, not mortaring.  They were using

 3    the wrong sealant.

 4               You know, the seal between the top of the

 5    --

 6               top of the seal in the roof, they didn't

 7    have the materials they needed there.  You know, they

 8    were just stuffing whatever in the top.  There was

 9    gaps.  Of course, there were straps there, too.

10               Everything was wrong there.  So the

11    training, the direct supervision are important.

12    Dates, times, and initials, just like a pre-shift.

13    That's important.

14               That should be done.  And a written

15    record is important.  And I agree with Wes, that the

16    time frames for keeping those records I think need to

17    be extended to three years.

18               You know, the intake seals at Kentucky

19    Darby had been built I think three or four years

20    before the explosion.  They weren't built properly

21    either.  Nobody knew about it for three or four years

22    until after the return seals blew out.

23               Then they checked the intake seals and

24    found that none of them had been built properly

25    either.

0059

 1               There were like seven or eight

 2    deficiencies in those seals.  And had a record been

 3    required at that time that those seals were built,

 4    then maybe there could have been some accountability

 5    there.

 6               And the requirement of the rule that a

 7    senior mine management official must certify the

 8    construction of these seals is important.  We also

 9    support the notification provisions, but with a

10    caveat.  I don't think these notification provisions

11    are going to be very important if MSHA doesn't take

12    the opportunity to get out and check the seals.

13               You're saying that operators have to

14    notify MSHA within two to 14 days before building

15    seals, if we're going to build seals.  Well, you need

16    to have an inspector there at least for part of that

17    time.  I know you can't have a guy sit there for days

18    while seals are being built, but I think somebody

19    needs to make a visit, make sure they're following

20    the plan, and then go back out afterwards.

21               The operator has to notify MSHA within

22    five days after completion.  It's critical that MSHA

23    take advantage of this and send an inspector out and

24    make sure that those seals were built properly.

25               The training is important, again, at

0060

 1    Kentucky Darby.  Nobody had been trained on how to

 2    build seals.

 3               You know, these were hourly employees who

 4    went in.

 5               They were told what to do.  They didn't

 6    -- you know, threw the thing up haphazardly.

 7               Really quite frankly, it was a pretty

 8    pathetic job and there was no accountability and it

 9    leaves the impression that they really didn't care.

10               You know, it was like we don't want -- we

11    have a worked out part of the mine.

12               We don't want to ventilate it.  We don't

13    want that trouble, so we'll just throw up a wall and

14    pretend that we're protecting people when in fact

15    there was no protection at all.

16               I appreciate the opportunity to testify.

17               What we're really asking here is for

18    accountability from coal operators and asking you to

19    do the right thing.  You know, again, we don't want

20    another tragedy.

21               There's no reason in 2007 that we should

22    have miners dying because of improperly constructed

23    seals.

24               So please don't weaken the standard.

25    Thank you.

0061

 1        MS. SILVEY:  Thank you, Mr. Opegard.  I have

 2    just a few comments.  First of all, I would like to

 3    say for the record, that we agree with you, that we

 4    must not, and we do not forget Mr. Ledford, so our

 5    sympathies are with Mr. Ledford and his family.

 6               Second of all, with respect to the mine

 7    video, you know, let the record show that the Agency

 8    will exercise its responsibility with respect to the

 9    conditions on the video, and take the action that is

10    appropriate with respect to the seals.

11               I notice now on the cover of the video,

12    it says 4/20/07.  So I want the record to show that

13    MSHA will do that.  With respect to existing seals,

14    and we've gotten a lot of comments on the Agency's

15    approach to existing seals.

16               And to some extent, I'm being redundant.

17               Now, you heard me say part of it earlier.

18    Some of the people in Morgantown heard me say this.

19    Even after we laid out our approach with existing

20    seals, that while we did not require complete --

21    either complete or replacement or complete

22    reinforcement.

23               In the instance that we found an

24    inspection, a monitoring revealed hazards, then we

25    did require corrective action.  We did, at the same

0062

 1    time, we solicited comments on the Agency's approach.

 2               In Morgantown, what I would like to let

 3    everybody know that the industry -- the state -- we

 4    had a representative on behalf of the Interstate

 5    Mining Commission, which is this compact of states.

 6    The state and the UMWA supported MSHA's overall

 7    approach to existing seals, recognizing that in some

 8    instances, and just as I said in my opening

 9    statement, it may be indeed to replace, to completely

10    replace existing seals, and I think you sort of

11    acknowledged that.

12               That might introduce a increased hazard.

13    So if I took down what you said, and I thought that I

14    did, I might not.  I think at one point you said to

15    the extent that these seals should -- I don't think I

16    did take it down.  I remember it.

17               To the extent that the seals -- that it

18    was feasible to do so, the seals should be

19    reinforced.  So if -- I don't know whether you are

20    going to send us anything in Arlington before August

21    17th or not, but if you have any more specific

22    comments on either the feasibility or situations in

23    which existing seals should be reinforced, we would

24    appreciate that.

25               And actually, those are all the comments

0063

 1    I have.  I don't know if anybody else has any

 2    comments.

 3               Thank you, Mr. Opegard, and thank you and

 4    your clients and everybody who has testified on

 5    behalf of Appalachian Citizens Law Center.

 6               At this time, I think probably people are

 7    looking to see if we are going to take a break.  So

 8    if we could take a five minute break, please, because

 9    we do have other people on the list to testify.

10   (Whereupon a break was taken.)

11        MS. SILVEY:  Can we reconvene, please?

12               Again, please, everybody, so that we can

13    sort of keep our schedule.  At this point, I would

14    like to reconvene the Department of Labor's Mine

15    Safety and Health Administration's hearing on

16    sealing.

17               The emergency temporary standard related

18    to sealing abandoned areas in underground coal mines.

19    At this point we have Joe Jacobs, COA.  Mr. Jacobs.

20        MR. JACOBS:  Thank you, Ms. Silvey, for the

21    opportunity to discuss a issue that is very important

22    to us.  My name is Joe Jacobs.  I represent COA,

23    which is a trade group that represents mostly small

24    coal operators in Eastern Kentucky, Western Kentucky.

25               I appreciate the fact that you have taken

0064

 1    my call, and we have had some discussions about seals

 2    and rebuilding seals.  And so we want to make some

 3    comments on those and asking questions.

 4               And we're not asking questions to cast

 5    aspersions on anybody.  We're just asking questions

 6    for a matter of information.  Our feeling is is that

 7    the Agency, the Mine Safety and Health

 8    Administration, through it's sister Agency, NIOSH,

 9    has an obligation to aid and assist the coal industry

10    and the coal industry has an obligation to aid and

11    assist NIOSH and MSHA in working to develop a safer

12    atmosphere for our coal miners to work in.

13               And therefore, to that end, we have some

14    questions in regards to seal construction, and we

15    want to ask you all to look at some situations that

16    we have not seen.  As far as the seals that have been

17    posted online, we find that there's one, i.e.,

18    Mitchell Barrett type seal that has been posted, and

19    the rest of them are from other pre manufactured

20    seals.

21               And we have some areas that we want to

22    ask that you look at.  For example, in the area of

23    seal construction, what happens if we place flash in

24    front of the seals, or in the inby side of the seal,

25    or if we place sand or if we place gob.

0065

 1               We feel that that would dissipate the

 2    explosion as the explosion drew nearer the seal and

 3    would serve to dissipate some of the force,

 4    therefore, making the 50 psi seal an even more

 5    stronger seal.  So we point that out to you and ask

 6    you to take a look at that and to see if there is any

 7    areas that we can work with you to aid and assist in

 8    developing seals that work in the coal mines that we

 9    represent, which is mostly conventional type

10    sections, 20-foot wide.

11               They're going to be anywhere from 30 to

12    48 inches in height.  Some of our engineers have

13    stated to us that the calculations that you have on

14    the 50 psi seal is actually a 96 psi seal, and we ask

15    that you look at that.

16               Also we find no Mitchell Barrett type

17    construction seals for 120 psi on the website at this

18    time and we ask is there a possibility that we would

19    have one of those.  And I'm talking about concrete

20    block laid in a traverse pattern to obtain the 120

21    psi.

22               And as for the rebuilding or

23    strengthening of seals, we have some seals that are

24    built with whatever the term was.  We were using the

25    prefabricated seals.

0066

 1               What happens if we build a Mitchell

 2    Barrett type seal in front of that.  What is the --

 3    we ask you to develop for us the strength and the

 4    overpressure and tell us what that is.

 5               And we're just looking at what happens if

 6    we ask you to aid us in preparing catalogs for this

 7    is the seal design and this is how that seal should

 8    be constructed.  And then we'll get into the argument

 9    later on of whether it was properly constructed or

10    not because you as the Agency look at it, and we have

11    people who are going to be there supervising the

12    construction and the certification of it.

13               But we believe that there ought to be a

14    way that NIOSH and the Mine Safety and Health

15    Administration would develop these to where they're

16    actually developed to give us a cookbook type seal

17    design of 50 psi overpressure and 120 psi

18    overpressure.

19               And we need to look at those that are

20    erected in 30-inch high seams, and look at those that

21    would be erected at 48-inch seams, 42-inch seams, six

22    foot and seven foot seams as well.

23               I think the ones that we have on the

24    Internet today are seals that are erected in 20 to 22

25    foot entries with seven to eight foot in height.  And

0067

 1    most of our coal seams in the Eastern Kentucky region

 2    is not that size.

 3               So when you have a less volume of area

 4    where the area is smaller, what happens to the

 5    pressures.

 6               And if we have those, then it would

 7    probably be easier for us to find people who would be

 8    willing to look at the certification of these seals.

 9               As of right now, there's not a lot of

10    folks who want to stake their livelihood and the

11    future on certification of seals.  So we ask you to

12    look at that and to look at those design criterias

13    that you had.

14               And maybe we need to develop a cookbook.

15    We at the coal associations of Kentucky stand ready

16    to work with the Mine Safety and Health

17    Administration and NIOSH in developing these and

18    developing the regulations as we think that we should

19    be a joint partner in doing this, in developing them

20    so that compliance can be easily achieved.

21               And I'm not talking about fabrication,

22    but I'm talking about compliance.  For example, we

23    look at monitoring behind seals, and for years the

24    Agency utilized a G60 pump to pull the air from

25    behind the seals to look at what it was, and to get a

0068

 1    sample from behind the sealed area.

 2               Now that we're being required to monitor

 3    that, all of a sudden no one wants to do that.  They

 4    don't want us to do that because they're saying

 5    that's not utilizing that pump for it's intended

 6    purposes.

 7               That's using it for something different.

 8    It still pulls two milliliters of air.  So we don't

 9    see why.  So don't make it so cumbersome for us to

10    comply that the small operator is not going to be

11    able to do that.

12               We employ quite a few people in Kentucky

13    coal mines, and we offer employment to them, and we

14    produce an awful lot of the energy that is used to

15    ensure America's independence in the energy source.

16    So therefore, we as small operators are asking you as

17    an Agency to help us and let's be partners in

18    compliance rather then being in an adversarial

19    position.

20               I'm not saying that you're in that

21    position now, and I appreciate you have been willing

22    to take my phone calls, talk to me, and we did get a

23    50 psi seal on the Internet.  But I'm asking that we

24    go farther than that.

25               And if there is strengthening values in

0069

 1    the use of Kevlar in bladders that have been

 2    proposed, that's science and may we utilize that to

 3    strengthen the seals that we now have by utilizing

 4    the same kind of coating that goes into our

 5    policemen's bulletproof vests.

 6               There are some Kevlar bladders that are

 7    out there.  How we secure those is a matter of some

 8    experimentation that we still need to do, but there

 9    is that possibility out there.

10               There's also the possibility out there if

11    we take flash and place that flash behind that seal,

12    or if we take sand or if we take rock or gob, and we

13    insure to the best of our ability that that gob is

14    properly aligned with rock dust, it will dissipate

15    the force of the explosion coming out to the seal and

16    afford a greater protection.  So we ask you to look

17    at those.

18               All right?

19        MS. SILVEY:  Okay.  Well, I have a few comments,

20    Mr. Jacobs.

21        MR. JACOBS:  Yes, ma'am.

22        MS. SILVEY:  First of all, so that everybody

23    will understand in terms of the structure of the

24    rule, and before I say that, I would like to say that

25    MSHA stands ready and willing, and indeed has

0070

 1    responsibility to assist the entire mining community

 2    in terms of achieving greater safety and protection

 3    for miners.

 4               And there I mean industry, the labor, the

 5    state and we intend to live up to our responsibility.

 6        MR. JACOBS:  That's right.

 7        MS. SILVEY:  Now, as I say that, and I hope Mr.

 8    Jacobs that as you gave me your general comments,

 9    before the record closes on August 17th, that you

10    will reduce them to writing.

11               And to the extent that you have specific

12    suggestions for us, as I said in my opening statement

13    to everybody, that you would include specific

14    language.

15        MR. JACOBS:  Yes, ma'am.

16        MS. SILVEY:  That type of information will help

17    us as we move forward in developing the final rule.

18    The way the standard -- the ETS is structured is the

19    operator or manufacturers that operate -- or a

20    manufacturer can do that.  There is a two-step

21    process for seal design, approval and installation.

22               The operator or the manufacturer sends in

23    the seal design to MSHA's office of technical

24    support, based on having an approval application, and

25    as many of you know, the seal design will be

0071

 1    structured so that it meets and addresses specific

 2    mining conditions.

 3               So that's the first step.  And then our

 4    office of tech support engineers will review it and

 5    look at it based on whether the application meets the

 6    criteria in the rule, and based on the criteria that

 7    we've laid out in the rule.

 8               The office of tech support will look at

 9    it and approve that design.  That design then, an

10    approved design, an operator would take that approved

11    design, and based on specific mining conditions, will

12    ask for an approval of the site installation, the

13    seal installation in a particular mine, based on the

14    mining conditions.

15               Now, I guess what I'm trying -- and you

16    asked why did I say that.  I guess what I'm trying to

17    ask you is it seems that what you are asking us is to

18    work with you in developing design for your mine, I

19    think, it looks like.

20        MR. JACOBS:  In developing -- in developing seal

21    construction for all mines, and I know that all

22    mining conditions are --

23        MS. SILVEY:  Seal design.  You said

24    construction.  Seal design.

25        MR. JACOBS:  -- going to be -- yeah, seal

0072

 1    design.

 2        MS. SILVEY:  And we have put some templates,

 3    because we do believe we have a role in assisting and

 4    trying to get a handle on seals, just as we've heard

 5    people say, we've had issues with seals and we have

 6    admitted that.

 7               So we have put certain designs, I

 8    believe, on our website.  In fact, we have a 50 psi,

 9    one or two, and 120.  Do we have at least one or more

10    than one?

11        MR. UROSEK:  Yeah, we have more than one.

12        MS. SILVEY:  Two.  Two 120's on our website.

13        MR. SHERER:  One gentleman has -- we got

14    several.

15        MS. SILVEY:  We've got several on our website.

16    Thank you for help from the audience.  We've got

17    several on our website.

18        MR. JACOBS:  Yes, ma'am.

19        MS. SILVEY:  And, you know, I'm sure that our

20    office of tech support is going to be as helpful as

21    possible to people and organizations who send

22    applications in.  And in terms of seeking an approval

23    and trying to work with them and getting certain

24    designs approved.

25               But as I said, if you want to be more

0073

 1    specific in your comments, you can feel free to do

 2    that.  For example, one specific thing you said that

 3    you think that certain material, when used inby the

 4    seal, might help to mitigate the damage.

 5               So I would ask you to be specific, and if

 6    you -- in terms of what exactly you are talking

 7    about, and if you have experiences using that.  If

 8    you sent in a particular application.

 9        MR. JACOBS:  Those have not been sent to you for

10    approval.  It's merely suggestions that we have by

11    utilizing our experience in mining and, you know,

12    I've been at this since 1969.

13        MS. SILVEY:  I know.

14        MR. JACOBS:  And as you well know, since 1969 we

15    found that seals have gone from the Mitchell Barrett

16    seal that we were utilizing to the Omega Block seal,

17    and even if you go back to the 69 Act itself, we had

18    the right to lay timbers skin to skin in heavier

19    caved areas.

20               Now, I don't know any of us that did

21    that, but we also had some water seals that were

22    there because of the water being roofed in low or

23    dipping areas.  And as long as we could prove that

24    the water was roofed and there was no air passing

25    over those, a water seal was acceptable, under the

0074

 1    alternative seal section of the previous regulation

 2    that we had.

 3               We're simply asking that we look at,

 4    through tech support, the placing of flash, sand or

 5    gob, inby a properly constructed Mitchell Barrett

 6    seal to see if it improves the overpressure and

 7    mitigates the outward force of the explosion.  And

 8    that may be something that we would be able to do to

 9    obtain a 120 psi Mitchell Barrett type seal.

10        MS. SILVEY:  Okay.

11        MR. JACOBS:  Or we may need to lay additional

12    solid concrete blocks in a traverse pattern to

13    achieve the 120 psi Mitchell Barrett seals.

14        MS. SILVEY:  I do have an additional comment on

15    -- you mentioned that calculations, your calculation

16    showed that we have -- that the calculations we have

17    on the 50 psi really come to 96 psi, and I would like

18    it if you would provide that to us, specific, the

19    calculations that you have that show differently than

20    ours.

21        MR. JACOBS:  Yes, ma'am.  All right.

22        MS. SILVEY:  Okay.  And that's really all I

23    have.  Does anybody have anything?  Okay, thank you,

24    Mr. Jacobs.

25        MR. JACOBS:  Thank you.

0075

 1        MS. SILVEY:  Next we will hear from Tony Huff

 2    with THA Engineering.  Tony Huff?  No?

 3        MR. HUFF:  I'm Tony Huff, h-u-f-f.  Tony, t-

 4               o-n-y.  I am a professional engineer and

 5    I just want to express my thanks to MSHA for bringing

 6    the attention that you are to the seal issue.  I do

 7    have a few comments and questions, but most of them

 8    are technical issues and I think what I'll do is get

 9    with tech support and kind of put our heads together

10    and maybe make some comments later in writing when I

11    get my thoughts a little more clearly defined.

12               As an engineer, I do want to express

13    optimism that we can come up with a cost-effective

14    and feasible solution to seals, and we are working on

15    that.  And that's all I have to say.

16        MS. SILVEY:  Okay.  Well, I would encourage you

17    -- you know, you said you would get with tech

18    support, but I would encourage you, if you have

19    specific comments, to get them in to us before the

20    record closes on August 17.

21        MR. HUFF:  The 17th.

22        MS. SILVEY:  That's right.  Thank you.

23        MR. HUFF:  Thank you.

24        MS. SILVEY:  Next we have Bill Caylor, Kentucky

25    Coal Association.

0076

 1        MR. CAYLOR:  Ms. Silvey, members of the panel.

 2    I want to welcome you to Lexington today.  My name is

 3    Bill Caylor.  It's c-a-y-l-o-r.  I am president of

 4    the Kentucky Coal Association.  The Kentucky Coal

 5    Association represents large and small surface and

 6    underground operators in both the Eastern and Western

 7    Kentucky coal fields.

 8               Since this hearing is in Kentucky, at the

 9    beginning of my remarks, I would like to make some

10    brief comments on the basic Kentucky coal facts and

11    some industry trends.  In terms of production, we

12    mined 120 million tons of coal in 2006.

13               Approximately 80 percent of that figure

14    is mined in East Kentucky and 20 percent of that

15    figure is mined in West Kentucky.  Of the coal that's

16    mined in East Kentucky, roughly 60 percent is mined

17    underground and roughly 40 percent is mine to

18    surface.

19               In West Kentucky roughly 80 percent is

20    mined by underground mining methods and roughly 17 --

21    or roughly 20 percent is mined by surface methods.

22               Production in Kentucky peaked in 1990 at

23    179.4 million tons.

24               Currently Kentucky ranks third in the

25    nation in production behind Wyoming, which mines 450

0077

 1    million tons and West Virginia which mines at 150

 2    million tons.

 3               In terms of miners, we have over 17,000

 4    -- actually 17,190 coal miners in Kentucky, and

 5    that's down from roughly 48,000 in 1981.

 6               The multiplier effect, because we have

 7    17,000 miners working, we have a multiplier effect of

 8    around four other people working for every one person

 9    employed by the coal industry.  So we have a

10    multiplier of trickle-down jobs of around 50,000

11    jobs, actually statewide.

12               These could be people that work for

13    utilities, equipment vendors, repairmen, engineers,

14    truckers, accountants, lawyers, and just people that

15    work in every form of occupation in East Kentucky,

16    East and West Kentucky.

17               The Kentucky coal miner earns an average

18    of $47,000 a year, and that's usually a very nice

19    wage in the areas that are impoverished in the coal

20    fields.

21               Three percent of the working miners are

22    members of the United Mine Workers.

23               There's nobody with the United Mine

24    Workers in East Kentucky.  They represent mines and

25    miners in West Kentucky.  In terms of exports,

0078

 1    Kentucky will export about 70 percent of its coal.

 2    We export to about 23 states and four foreign

 3    countries.

 4               About 70 percent of our coal production

 5    in Kentucky goes to utilities and about 30 percent

 6    goes to industrial users.  Of the about 70 percent

 7    that sold out of state, we bring in over $3.5 billion

 8    into the State of Kentucky, and about 85 cents on

 9    each dollar stays here in Kentucky in terms of wages,

10    benefits, operating expenses, royalties and taxes.

11               So the majority of the money that we

12    bring in stays here in Kentucky.  Coal paid over $230

13    million in severance packages last year, in addition

14    to the normal business and taxes that companies pay.

15               Reserves, we have 88 billion tons of

16    reserves in Kentucky, well more than we could mine in

17    over 200 years.  West Kentucky has 36 billion tons

18    reserved and East Kentucky has 52 billion tons of

19    reserves.  In terms of the nation's supply of

20    electricity, coal provides between 50 and 52 percent

21    of our nation's electrical needs.

22               That's followed by nuclear with 20

23    percent, natural gas with about 16 percent,

24    hydropower at about 7 percent, oil at about 3

25    percent, and renewables at only 2 percent.  And when

0079

 1    I refer to renewables I'm talking about wind, solar,

 2    biomass and geothermal, with biomass being the

 3    majority of that.

 4               In Kentucky, coal provides 91 percent of

 5    our electricity.  We have one of the lowest

 6    electrical rates in the nation because of coal.  Coal

 7    miners truly are American heroes.  I couldn't be more

 8    proud of our coal industry.

 9               Now let me touch on Kentucky and U.S.

10               production trends very briefly.  To the

11    year to date, through June, Kentucky's production is

12    down a little over six percent.  Production east of

13    the Mississippi is down nearly 3 percent.

14               If you ask yourself why, there's several

15    reasons for this.  A drop in the coal process paid by

16    utilities, the implementation of state and federal

17    safety laws, general expense increases, such as the

18    cost of steel, fuel, explosives, benefits, and the

19    trend toward surface mining.

20               Surface production is generally cheaper

21    and safer than underground production.  This is

22    especially true in a state like Wyoming where you

23    have 50 to 60 foot thick seam of coal.  My forecast,

24    you will probably see the continued decline in

25    production east of the Mississippi, especially in the

0080

 1    Appalachian region.

 2               Production costs for underground mines

 3    continues to escalate.  The small operator is quickly

 4    becoming a thing of the past.  Just like the Wal

 5   -Mart's and the McDonald's, the coal industry is

 6    rapidly becoming dominated by large multistate

 7    corporations.

 8               And what many people fail to realize is

 9    that the corporate philosophy is to obey the laws.

10    It's easy to say the coal industry is an outlaw

11    industry, but these statements are untrue and very

12    misleading.

13               The coal industry has a very positive

14    safety record, something we've lost sight of.

15    Nationally we have witnessed a steady downward trend

16    in both fatalities and injuries over the past 30

17    years.  This is fact, not emotion.

18               We've had good years and bad years, but

19    the trend clearly is a downward trend.  We are making

20    a very positive progress, and the thanks go to state

21    and federal safety agencies, company safety

22    philosophies and the quality of our workforce.

23               With regards to injuries, did you know

24    that the Kentucky coal miner is safer from injuries

25    than the average Kentucky worker.  And yet, if you

0081

 1    listen to the news press, you would think just the

 2    opposite.  In terms of fatalities, in Kentucky,

 3    during a three-year period, between 2002 and 2005,

 4    the following Kentucky categories had average annual

 5    fatalities as follows.

 6               Service, providing as a category, had an

 7    average of 52 fatalities per year.  The trade,

 8    transportation and utilities had an average of 36

 9    fatalities a year.  Agriculture, forestry, fishing

10    and hunting had an average of 26 fatalities a year.

11               Transportation and warehousing had an

12    average of about 26 fatalities a year.  Construction

13    had an average of about 21 fatalities a year.

14    Government had an average fatality of about 14

15    fatalities per year.

16               State and local government had an average

17    of about 12 per year.

18               Manufacturing had about 12 per year.

19    Coal mining had just over eight fatalities a year on

20    an average.  Retail trade had almost eight and

21    professional business services had approximately four

22    per year.

23               Coal mining fatalities are much fewer

24    than other industries but because of press coverage,

25    every coal death is front-page news, while a

0082

 1    construction fatality is buried in the second

 2    section.

 3               Here's an interesting fact.  Did you know

 4    that 750 people die each year in the U.S. from eating

 5    bad or ruined potato salad.  Do you think that we

 6    could get some new laws put on the books to control

 7    these deaths?

 8               There are numerous, numerous other

 9    examples like that example.  The point is, regardless

10    of the reason why, coal clearly has been singled out

11    by the news press.  So have the hard working people

12    at MSHA.

13               MSHA inspectors are honest, hard-working

14    individuals, dedicated to safety.

15               It's frustrating to read otherwise in the

16    papers.  Like all of us here this morning, our goal

17    is zero fatalities.  We all have this common goal.

18    How to reach this goal is what we sometimes disagree

19    over.  We think the key to taking safety to the next

20    level is with behavior modification.

21               Behavior modification is the key to

22    ensuring miners know and want to work in a very safe

23    manner.

24               Behavior modification is teaching the

25    miners why it is important to work safely.  Not just

0083

 1    for themselves but for their employers, and more

 2    importantly for their families.

 3               To affect behavior modification takes

 4    time, commitment and money.  Too much emphasis is

 5    being placed on enforcement while behavior

 6    modification is being ignored.  While enforcement is

 7    critical, an equal emphasis should be placed on

 8    behavior modification.

 9               We strongly encourage MSHA to focus more

10    on this aspect of mine safety.  We support safety

11    improvements, but need rational safety requirements.

12               In the rush to get emergency standards

13    published, many questions were left unanswered.

14               There have been many hardships, many

15    questions where different answers are given in each

16    of the MSHA district offices.  We need rational

17    safety requirements.  MSHA still doesn't have the

18    answers to many of the questions on seal

19    construction.

20               In this emotional rush, we are over

21    designing and needlessly wasting efforts.  We

22    question MSHA's urgency and inflexibility with this

23    emergency standard.

24               We fear MSHA has set a basis with its

25    emergency temporary standard, from which they will be

0084

 1    unable to back down from, even based on the

 2    engineering and technical comments they may have

 3    received during these public hearings.

 4               Why the ETS?  What made a grave danger 16

 5    months after Sago, and with the July 12th PIB in

 6    place with much of the same requirements, we should

 7    have issued a proposed regulation with a quick

 8    comment period to eliminate mistakes we're facing

 9    under this emergency rule.

10               It is imperative that we take politics

11    and emotion out of this process.  We are frustrated

12    with the inability to comment on many of the

13    assumptions used by MSHA in seal design.  Based on

14    various Powerpoint presentations by MSHA, how can

15    tech support require a two to one safety factor in

16    the seal design with it not being required in the PIB

17    or the ETS.

18               And all requirements, assumptions,

19    inputs, et cetera, used by tech support to evaluate

20    seal designs should be publicized for review and

21    comment.  We oppose the replacement of existing

22    seals.  MSHA solicited comments in the preamble on

23    the feasibility of requiring existing seals to be

24    removed and replaced.

25               The final rule should not require the

0085

 1    replacement of existing seals, due to several

 2    reasons.

 3               It can be dangerous to replace seals.  It

 4    increases the chance of getting someone hurt or

 5    killed.  Many times there isn't sufficient space for

 6    a second seal.

 7               In many cases there is only a walking

 8    path to get to seals, making it difficult to get

 9    materials to the seal area.  You cannot do a one size

10    fits all, and the cost of such replacement is a

11    factor.  The seals are currently required to be

12    monitored, and the atmosphere behind the seals to be

13    inert as required by the ETS.

14               Strengthening existing seals could be

15    accomplished if a simple cost-effective product were

16    available.  We understand that testing has been done

17    on a substance, but the results have not been

18    released.

19               So I think we've got some very promising

20    things to look forward to.  We oppose having a

21    professional engineer certify as built seals.  The

22    requirement that a professional engineer must be

23    knowledgeable in structural engineering will cause

24    problems.

25               MSHA's interpretation of this proposal is

0086

 1    that the engineer must be a structural engineer.

 2               Engineers like attorneys and physicians

 3    are licensed to practice their profession, but their

 4    profession does not recognize certain practice areas.

 5               In other words, once one receives his

 6    professional license, whether it be a physician, an

 7    attorney or an engineer, he can practice in any area.

 8               Professional ethics require him to ensure

 9    his own competency in the area he intends to

10    practice.

11               Further, structural engineers may not be

12    competent in mining engineering.  There are many

13    areas of underground mining where a structural

14    engineer would not be competent to practice.  So

15    requiring an engineer to be a structural engineer is

16    improper.

17               The words knowledgeable in structural

18    engineering should be deleted.  We also have concerns

19    over the requirement for the engineer to have

20    oversight of the seal installation.  This would be

21    difficult, expensive and not necessary.

22               There are many unknowns in the

23    construction of seals, i.e., the concrete mix that's

24    shipped to the mine and various other materials that

25    are used in the construction of the seal.  There are

0087

 1    so many factors completely beyond the engineer's

 2    control.

 3               Even the term oversight itself is

 4    somewhat vague.  You have double certification since

 5    MSHA is requiring someone from the company to certify

 6    construction.  It is obvious that MSHA just wants

 7    someone to blame if something goes wrong, but in

 8    reality, this will prove difficult.

 9               Most serious or fatal accidents are a

10    result of a series of mistakes or wrong actions.

11    Having predefined scapegoats is owners at best.

12    Finding a mine foreman is becoming increasingly

13    difficult.  Who wants the responsibility.  It will be

14    hard to find someone to certify seals when the

15    liability will stay with this person many years into

16    the future, long after he's left the company.

17               I can see right now someone retired in

18    Harlan, or maybe in Georgia or Florida, 10 or 15

19    years later and there's an explosion, and he'll have

20    his retirement proceeds attached in some type of a

21    prejudgment attachment.

22               It is going to be difficult to get people

23    to certify that these seals are constructed.  We

24    suggest the use of Mitchell Barrett seals and other

25    pre designed seals approved by MSHA.  And basically

0088

 1    we're backing up what Joe Jacobs testified to earlier

 2    just a few minutes ago.

 3               We join with others in urging MSHA to

 4    allow the Mitchell Barrett seals for the 50 psi

 5    standard.

 6               The cost of installing the new approved

 7    seals will put a lot of smaller operators out of

 8    business and would force some to avoid sealing

 9    altogether, which will increase exposure to workers,

10    supervisors and inspectors in traveling extensive

11    abandoned works that are not sealed.

12               This concludes my oral remarks.  Our

13    technical comments will be submitted at a later date.

14               Thank you very much.

15        MS. SILVEY:  Thank you.  Thank you, Mr.

16               Caylor.  I have a few comments and maybe

17    some members of the panel might have some also.

18    First of all, let me just say we appreciate, and for

19    everybody here today, we appreciate your comments and

20    testimony to us, and I will say again that -- I think

21    I said it earlier, that we know it takes some time

22    for people to come and participate in these MSHA

23    hearings.

24               And we understand that and we appreciate

25    that.  And that's one -- but one of the reasons is

0089

 1    that we need these comments and testimony as we go

 2    and develop this final rule that we've heard from

 3    some people so far during this rulemaking process,

 4    why some people have liked it and some people have

 5    liked most aspects of it.

 6               And some people have probably not liked

 7    it a lot, that a lot of the people have had comments

 8    that they said they want us to improve certain areas.

 9    And so that's why we are here.  With respect to the

10    -- you said many questions were left unanswered when

11    we issued the ETS.

12               And toward that end, we have issued some

13    compliance guides that certain questions were sent

14    directly to us.  We got it out and I said earlier, we

15    had to try to quickly get it out, and we've answered

16    questions in the compliance guide and we put them on

17    the website.  And I think we have another compliance

18    guide about ready to come out.

19        MR. SHERER:  Should be soon.

20        MS. SILVEY:  Should he out soon.  Now, to the

21    extent -- and I say this for everybody in the room

22    now.

23               To the extent that you say to us in a

24    general way that different districts are given

25    different answers, yeah, you know, sometimes

0090

 1    different answers are appropriate, obviously, because

 2    the mining conditions are different.

 3               But sometimes when it gets to maybe

 4    certain principles of things, they may not, they

 5    should not be different.  So we try where we should.

 6    We try to achieve consistency in our districts.

 7               So where districts are given different

 8    answers on certain basic things, I would ask people

 9    who make those comments to us, to give us specific

10    examples.  And I'm not asking you to do that now when

11    you send your comments to us before the record

12    closes.

13               Would you like to add anything to that,

14    Erik, since you were here for coal mine health and

15    safety?

16        MR. SHERER:  Sure.  A couple of things.

17               First of all, thank you for your

18    participation and your input.  The second thing is I

19    thank you for your patience.  This is an emergency

20    temporary standard.

21               It's something that we felt that we

22    needed to get out there immediately to address the

23    grave hazard to miners.

24               And it is something that is in the

25    process of being improved as part of the ETS process.

0091

 1    There is a learning curve for all of us and I ask

 2    your forbearance.

 3        MS. SILVEY:  Yeah, okay.  I would like to now

 4    state, Mr. Caylor, and I know you'll appreciate this,

 5    why this is an ETS, and I said this in my opening

 6    statement.  It also serves as the proposed rule and

 7    commences the regular rule making progress.

 8               And I know, you know, people have come to

 9    us and said, you know, things are cast in concrete

10    because it's an ETS and the Agency cannot, will not

11    change anything, but even though it is an ETS, under

12    the Mine Act, it commences regular rule making.

13               So to the extent the Agency gets

14    justifications and comments and rationale, with

15    supporting rationale, as to areas that we should

16    change for the final rule, then that's what we need

17    to do and that's what we will do where appropriate.

18               So I want to say that here, and I'll

19    probably end up saying that at two more hearings, the

20    same thing.  The Agency, as our attorney advised me

21    -- you know, I have an attorney, too, that we stated

22    that in the proposed rule, and she's right.

23               Also, we heard this in Morgantown, too,

24    and I've heard it intimated here today, intimated and

25    now specifically stated in your comments, Mr. Caylor,

0092

 1    how can tech support require a two to one safety

 2    standard when it's not in the ETS or the PI -- and

 3    you're right.

 4               It is not in the ETS, a two to one safety

 5    factor and we are not requiring a two to one safety

 6    factor.  As I said to Mr. Jacobs, if you have

 7    calculations that differ from ours, or are in your

 8    mine, show -- convince you that we are requiring a

 9    two to one safety factor, then I want you to get

10    those in to us.

11               The ETS does not indeed require a two to

12    one safety factor.  With respect to the replacement

13    of existing seals, and I think I mentioned -- I

14    talked about that enough already, in terms of what

15    the Agency requirement is, but with respect to why we

16    should not in the final rule, require replacement of

17    existing seals, due to several factors, I, like you

18    -- because we stated in the preamble why we did not,

19    and I think I said that when Mr. Opegard was up here

20    in his -- with the Appalachian Citizens Law Center.

21               But with respect -- and you stated

22    specific factors here, but I would like you to, if

23    possible, expand on the specific factors.  Be as

24    specific, no pun intended, be as specific as you can

25    with respect to the specific factors that you

0093

 1    included in your written statement here to us today.

 2               For example, you said it could be

 3    dangerous to replace.  Be as specific as you can, and

 4    we indeed said that in the preamble.  Also, with

 5    respect to strengthening existing seals, we did state

 6    that we were reviewing new technologies, that they

 7    have come onboard to look at as to whether there are

 8    better technologies coming on board that we could use

 9    to strengthen existing seals.

10               So we are going to continue to do that,

11    but if you all have ideas about new technology, new

12    and better technology, please provide that to us in

13    written comments.

14               The only last comment I have is on the --

15               well, I have two actually.  On the

16    requirements that's the engineer, in terms of the

17    site installation, that there be an engineer --

18    certified by the engineer, and you state that you

19    oppose that.

20               And you do have specific reasons as to

21    why you oppose it right here.  Do you oppose it, and

22    this is sort of -- you have specific reasons here,

23    but is part of your rationale that you oppose it in

24    terms of just the -- at the time of the engineer to

25    be there or are you opposing it for other reasons?

0094

 1        MR. CAYLOR:  Well, there's a whole lot of

 2    questions when you talk about just the time to be

 3    there.  Are we talking about, you know, 24/7 or are

 4    we talking about --

 5        MS. SILVEY:  Okay.  That's what I wanted to get

 6    out.

 7        MR. CAYLOR:  -- reasonable?  Are we talking

 8    about having a designated person under the control of

 9    the engineer do that, which is very common under

10    other engineering practices.

11        MS. SILVEY:  Okay.

12        MR. CAYLOR:  So there's a lot unanswered, and I

13    think we're going to see the answers as we move down

14    the road.  That's why the emergency standard being in

15    force was troublesome.  You know, if we could discuss

16    these factors, we could understand more of what is

17    required.

18        MS. SILVEY:  And that's what we are trying to do

19    now.  So I gather, partially I gather, what you're

20    saying is that if we were to clarify that we are not

21    indeed talking about the engineer being there 24/7,

22    but just have -- then there might be some way to

23    where we can make clarifications.

24               And as to matter of fact, as I said, we

25    are getting another set of questions that are getting

0095

 1    ready to come out now, and I think some of the issues

 2    even maybe that we are discussing today will be

 3    clarified.

 4        MR. CAYLOR:  We have normal engineering

 5    practices, and I would strongly encourage MSHA to

 6    deal with some of the Kentucky Board of Registration

 7    for engineers to discuss even with these agencies

 8    what are the normal engineering practices.  I think

 9    that would be very helpful for the Agency.

10        MS. SILVEY:  Okay.  With respect to the --

11               and just so everybody knows, I like to

12    call it the concrete block seal.  I know it's

13    commonly referred to in the industry as the Mitchell

14    Barrett seal, but with respect to the concrete block

15    seal, and we heard this testimony before, that

16    everybody joins in pushing MSHA to allow for that

17    seal, but it's my understanding that we do allow the

18    concrete block seal as a 50 psi seal.

19               And I clearly am not -- I understand, I

20    think what commenters are saying.  Commenters I think

21    are saying to us the concrete block seal, as

22    specifically specified in the prior standard.  I

23    think that's what I'm hearing, and maybe with the

24    concrete block seal that we are allowing now, there

25    are some additional requirements for it.

0096

 1               But just so -- I don't want people to go

 2    out and everybody think that MSHA did away with the

 3    concrete block seal, because that is -- so maybe it's

 4    the concrete block seal with additional parameters.

 5               But, one comment that you said, you said

 6    the cost of installing the new approved seals would

 7    put a lot of smaller operators out of business and

 8    would force some to avoid sealing altogether.  I

 9    would like you to provide -- be as specific as you

10    can there, and provide specific examples in your

11    comments before August 17th.

12        MR. CAYLOR:  That follows up on what Joe Jacobs

13    mentioned.  He was asking for off-the-shelf designs

14    that could be used, especially by the small guy.  A

15    lot of times the small guy doesn't have the financial

16    wherewithal to put so much engineering design into

17    the development of a seal.

18               And as much as we can get from MSHA in

19    designing some off-the-shelf seals, that would be

20    very helpful, especially for the small operator.  And

21    I'll tell you, those guys are getting fewer and

22    fewer, like it or not, but we're no different from

23    any other business.

24               The Wal-Mart's and McDonald's are

25    replacing the family restaurants and the local

0097

 1    department stores.

 2               It's just a fact of life in this country

 3    and we're seeing it in our industry.

 4        MS. SILVEY:  Anybody else?  Okay, Mr. Caylor,

 5    thank you very much.

 6        MR. CAYLOR:  Thank you very much.

 7        MS. SILVEY:  We next have John Salley with James

 8    River Coal Company.

 9        MR. SALLEY:  My name is Jonathan Salley, j-o-

10               n-a-t-h-a-n, s-a-l-l-e-y.  I'm born and

11    raised in Hazard, Kentucky.  I'm from the coal

12    fields, third generation coal miner.  I work for

13    James River Coal as an engineer for a couple of its

14    subsidiaries.  And a lot of my questions were more

15    technical in nature.

16               I'll just kind of touch on a couple of

17    those in generality and then give you more detailed

18    questions to tech support to address.  A lot of our

19    coal mines will have a problem with a note in the ETS

20    in regards to cutting and welding within 150 feet of

21    existing seals.

22               A lot of our mines are developed with

23    very narrow main lines that by it's very nature, the

24    center of those main lines have our belt lines

25    installed in them.  And to maintain head drives and

0098

 1    such, they're pretty close to those seals that are

 2    already in existence.

 3               That being said, they're on a separate

 4    split of air, so when tech support starts looking at

 5    this issue, it would be nice if you could just take

 6    that into consideration knowing that there's

 7    substantial air quantity passing by those seals.

 8               That they are in a separate air course in

 9    its entirety and there probably isn't the same kind

10    of situation as if you were cutting and welding on a

11    return close to a set of seals, as is stated in the

12    ETS.

13               Another thing that I wanted to make sure

14    and mention was Sago -- cite as a possible cause for

15    that explosion was a lightening strike.  And in the

16    ETS, it's been noted that all abandoned cables in

17    sealed areas should be removed by the operator to

18    help eliminate any cause for future explosion as a

19    result of a lightening strike.

20               My question is, in a lot of these sealed

21    areas, we have gas wells from the oil and gas

22    industry that have drilled wells all around our

23    sealed works in these abandoned areas.  It just seems

24    from an engineering standpoint, and a practical

25    standpoint, that the most direct route for a

0099

 1    lightening strike to enter the coal mine would be

 2    down the casing of a gas well or an oil well.

 3               I think it's pretty much a requirement

 4    that there are multiple casings there that could

 5    transmit a lightening strike in to the coal mine

 6    area.  Most of the time these wells are in barrier

 7    blocks in between worked out areas of the coal mine,

 8    but the coal companies can't really certify how much

 9    the steel has wandered and how close that gas well is

10    to the actual mine works underground.

11               And neither will the oil and gas industry

12    give you any guarantee on how much that steel has

13    wandered.  If the well has been drilled several

14    hundred feet, it could be dramatically different from

15    a surveyed location on the surface.

16               So I would just ask that tech support

17    look at that issue and maybe give us some kind of

18    additional protection for the miners because, you

19    know, I am from the coal industry.  I have family and

20    friends that work in the coal mines, and I want to

21    make sure that they are safe.

22               And I go underground as an engineer.  So

23    it's important for me to know that you guys look at

24    that issue and it's taken into consideration.  I'm no

25    professional guy that's been in the industry for 30

0100

 1    years, and the people at tech support probably know a

 2    lot more than I do, but just from a practical

 3    standpoint, a piece of cable that's laying in a

 4    worked out area that's separate from the outside

 5    atmosphere, just doesn't seem like it's as likely a

 6    cause for a spark as maybe a gas well steel casing

 7    that comes from the surface to ground all the way

 8    through that coal seam and below.

 9               We've talked about how NIOSH and tech

10    support is interested in getting more comments from

11    industry, and I applaud that because really it just

12    seems like from my short career in mining, we have

13    dictated to the coal industry what we're supposed to

14    do a lot of times when you have these guys that have

15    30 years in the coal mines, that have all this

16    practical experience that can really help people at

17    tech support or NIOSH understand what they can do and

18    what they can't do it in a coal mine.

19               You know, we see designs that are posted

20    that really look more like civil engineering projects

21    than something of what we're used to doing in a coal

22    mine.

23               And I just think that a greater industry

24    participation and a better communication with NIOSH

25    and tech support may give us better designs that are

0101

 1    more practical and easier to construct, easier to

 2    comply with that our coal miners won't have such a

 3    hard time making sure that they do it correctly.

 4               There's some questions that I will note

 5    on a card or a questionnaire to tech support on the

 6    pressure piling.  It's mentioned in the ETS, and I'm

 7    not so sure how that's calculated, but any of those

 8    calculations, as well as some of the basis for the

 9    designs that are posted, would be nice to see just so

10    that we can see how you arrived at those designs.

11               And the certification for the engineers

12    on the design and the construction process of the

13    seals, I think Bill kind of mentioned something that

14    I myself am personally a little bit afraid of.  If

15    I'm involved in the certification of some seals at

16    one of my mines, and I do go somewhere else, or

17    something changes in that coal mine, because coal

18    mines, they're not static.

19               They are dynamic animals.  Seals require

20    maintenance, and as we mine more and more coal in

21    East Kentucky, you have multi seam interactions to

22    where the conditions for that coal mine, when the

23    seal is constructed today, may not be the same five

24    years from now and who's going to be held liable.

25               Is it going to be me?  Especially when I

0102

 1    have no control over Mother Nature or whatever you

 2    want to call it.  I have additional questions, but

 3    like I said, I'll leave the more technical in nature

 4    to a letter or a request to tech support, but that's

 5    all I have today.

 6        MR. UROSEK:  I guess the only comment I would

 7    like to put out there for you is in the overall

 8    design and the ones that you see on the Web -- of

 9    course, when any is submitted to MSHA, that design

10    will go on to the Web, and it can be used by others

11    that have that same type of ground or same type of

12    conditions.

13               So in any design that's up there, it is

14    designed for the 50 or the 120 psi.  So for example,

15    if at your mine you have a design using concrete

16    blocks or any other type of material that you believe

17    will exceed the 50 psi using common mining

18    construction techniques, and you provide the

19    calculations to technical support and certify those

20    calculations, that that design will meet 50 psi.

21               That's something we will look at to

22    approve, and as long as it has all the requirements

23    of the information necessary in the ETS, and it is

24    certified by a registered professional engineer, it's

25    most likely that design will be approved.

0103

 1               So it is open for that.  Some of the

 2    designs are going to be more robust than others, but

 3    it depends on what someone submits and to whether

 4    they meet that requirement.  That's something that is

 5    certified by the professional engineer that submits

 6    it to us.

 7        MS. SILVEY:  One of the reasons we are putting

 8    them up on the Web is so this information will be

 9    available to all who have an interest in even maybe

10    taking one particular design we put up there, and

11    then use different materials or different things in

12    conjunction with that material.

13               And maybe they might come up with another

14    design.  So to that extent, I think that is useful to

15    the mining industry.

16        MR. SHERER:  I have a comment about the gas

17    wells.

18        MS. SILVEY:  Okay.

19        MR. SHERER:  First of all, I appreciate you

20    coming down and I especially appreciate your comments

21    about oil and gas wells.  We do realize that they are

22    a problem, and in fact MSHA met with the State of

23    Kentucky last week to try to coordinate between the

24    oil and gas permitting process in the coal mine

25    locations and such.

0104

 1               So we are working on that.  There are

 2    some differences of jurisdiction and such that we've

 3    got to work through, though.

 4        MS. SILVEY:  Okay.  Thank you very much.

 5               Next we have Mike Amick.  Mike Amick.

 6        MR. AMICK:  My name is Mike Amick.  It's a-m-i

 7   -c-k.  I want to thank you for allowing me to speak

 8    this morning.  I would like to offer some of my

 9    opinions from working with seals since 1991,

10    everything from installing the seals to research and

11    development of seals.

12               I would like to make it clear that these

13    views are my own and they're not of my current

14    employer, or previous employers, or any currant or

15    prior clients.  I view myself as an interested party,

16    independent, that can offer some points of

17    information that might make the nation's mines a

18    little safer.

19               I'd like to spend a lot of time on some

20    of these issues, but I'm going to keep it as concise

21    as I can, and please ask me any questions to clarify.

22    The first thing I'll touch on is the professional

23    engineer issue that you've already heard from.  So

24    I'll keep that brief.

25               Some of the issues that I see, one is the

0105

 1    professional engineer and the certified person

 2    responsible for the area, can often be in conflict

 3    and it should be clear that in the narrow definition

 4    of the seal design, that the PE be responsible for

 5    the design and as an as built and not necessarily as

 6    some of the wording is in the explanation text as

 7    accompanied with these proposed regs.

 8               I see that the best solution is that the

 9    professional engineer certify the seals on an as

10    built basis, including the design and maybe some of

11    the key building points.  For example, that the rebar

12    was such and such facing, and it was such and such

13    diameter, and the seal form was so thick, et cetera.

14               In fact, we have to ask ourselves,

15    listening to people this morning, if these designs

16    are so complicated and complex that we need

17    professional engineers, certified persons, and other

18    experts to watch every moment of the design, are we

19    being unreasonable.

20               One thing I would like to offer is that

21    the proposed 75336 (b) (2) should have the words

22    stricken, conduct or have oversight of seal

23    installation in order to make that section more

24    workable.  And I'll also admit these written, also

25    before the August 17th deadline.

0106

 1               I also think that because the actual work

 2    of installing the seals is done by miners or the

 3    contractors, and because of the importance of the

 4    seals, that not only should you have the PE certify

 5    the design and as an as built, and it should have

 6    your certified person sign the construction book.

 7    You should also have the members of the construction

 8    crew sign this book.

 9               They are just as important as everyone

10    else on this team and they need to signify that they

11    had performed these tasks as they were trained to do.

12    It's no different than a roof bolter operator

13    installing roof bolts correctly or the rock dusters

14    putting on rock dust correctly.

15               And also I think it's important to keep

16    in mind that the professional engineer and certified

17    persons cannot be expected to be experts in all

18    fields.

19               And what I'm saying there is on concrete,

20    steel, different materials used, you can't expect

21    them to certify them per se, but the regulations

22    should allow them to accept certification from the

23    manufacturer or whomever these materials were

24    received from.

25               On some small mine costs, I was in a mine

0107

 1    last week at East Kentucky, 25 inches high, that if

 2    he put in seals as proposed on the Internet now, the

 3    cost would be approximately 25 percent of his total

 4    profits last year.

 5               If you took it on a revenue basis, it

 6    would be somewhere between 10 and 15 percent.  So

 7    it's far more than what's on Pages 28812 and 28813.

 8    And I'll try to get some more detail and submit that

 9    at a later time.

10               I also think that mines that are above

11    the water table, which are generally small by nature,

12    both in number of employees and in arial extent,

13    still be allowed to use the 20 psi standard.  When

14    it's been shown historically that there's no methane

15    and that the area could be monitored and the methane

16    is below two and a half percent, and the oxygen

17    remains below 17 percent.

18               If these areas should ever approach these

19    two and a half or 17 percent ranges, then either the

20    50 or 120 psi seals should be installed.  There's a

21    lot of these seals out there that have not failed,

22    and I don't know that it's right to all of a sudden

23    crucify them all.

24               On Pages 28799 in column one, it

25    discusses the development of alternative seal

0108

 1    designs.  I believe this section is incomplete and

 2    it's more like what I've seen in the media that it's

 3    just inaccurate on how these standards were

 4    developed.

 5               It's always stated that the seal

 6    standards were weakened, and that's not the case.

 7    One of the goals of that program, if not the goal of

 8    the program, was to find an alternative to the

 9    standard block seal because they were failing and

10    under certain conditions.

11               The Mitchell seals were failing in mines

12    that had higher rates of convergence.  Now it's

13    difficult to tell, but probably in that video what

14    you saw was those seals failing due to convergence,

15    and an alternative design would probably have been

16    more effective in that situation, but again, it was a

17    video in the dark and it's kind of hard to say.

18               But my point is that having been there

19    and lived through all of those testing programs,

20    there was never any intent to weaken designs.  It was

21    the sole intent that I was aware of was to allow

22    designs that could be installed in difficult

23    conditions.

24               The failure of the seals at either Sago

25    or Darby is not ironclad evidence that all

0109

 1    alternative seal designs are bad.  Only in these two

 2    specific instances they failed whether they were

 3    improperly built, they were built properly but in the

 4    wrong application, or they were built properly and

 5    the explosion was simply higher than the design.  I

 6    don't know.

 7               I've only read what I've read in the

 8    media and I know that the media is typically

 9    inaccurate.

10               Mitchell seals have been blown out

11    several times where in the same set of seals,

12    alternative seals survived, and therefore you might

13    call them superior.

14               I've seen it with my own eyes, and like

15    at Sago, they were caused by lightening strikes.  The

16    MSHA report dealing with Oak Grove explosions back in

17    the '90s goes into these events in great detail.  I

18    also think it's important that there is an atmosphere

19    of cooperation.

20               Many of these mines, they have unique

21    situations that need to be addressed and trying to

22    come up with an iron clad, bulletproof set of

23    regulations to cover every situation is just

24    impractical.  A mine with soft ribs or floor, for

25    example, they need a design that has a much greater

0110

 1    plug than anchoring it to the rock because of the

 2    rock's weak nature.

 3               This gets back to my earlier point of

 4    professional engineers being allowed to have more of

 5    a role in the design and not having some flexibility.

 6               I've seen seals that were blown out that

 7    the ribs failed first.

 8               Since the entry was six feet wider than

 9    when we put the seals in, there was no doubt that the

10    ribs failed.  Now, whether the seal failed first or

11    the ribs failed, I couldn't tell you, but the pieces

12    laying down in the entry that were larger than this

13    table would indicate to me that the ribs failed and

14    that when the seals started to move, it broke apart.

15               Another thing I think I've seen over the

16    years is that MSHA needs to improve their

17    communication to the district offices.  One of the

18    experiences that I had is we installed seals in

19    different districts.  We had different standards,

20    depending on the district, and it really had nothing

21    to do with how we were tested or oftentimes even with

22    any specific condition.

23               I have seen some seal designs used in

24    situations that were specifically mentioned by tech

25    support to not be used in.  The inspection force

0111

 1    somehow needs some kind of a rapid access to what was

 2    approved, along with some key points.

 3               And that may be what you had in mind in

 4    the proposed regs where now a design is submitted to

 5    tech support and then to the district manager.

 6    Because many seal designs are easy to build in a

 7    manner that looks like they are properly installed,

 8    but if you do not know what you're looking for,

 9    they're not properly installed and shouldn't be used

10    in those situations.

11               So again, the inspector force needs to be

12    thoroughly trained in all of these new designs that

13    are coming out.  This is my first experience with

14    this kind of a meeting, and one thing I would like to

15    state is that I hope that when all of the regs and

16    rules come out that the discussion section is clearly

17    left out.

18               Because when you read the regs and you

19    read the discussion, you can get two different

20    interpretations, and that's the last thing we need if

21    something happens is, well, which -- what are we

22    following, on the reg or are we going to follow what

23    the interpretation of the reg says.

24               One of the things I noticed is that it

25    says that the -- 75335 now, it says seals shall be

0112

 1    designed, constructed and maintained to protect

 2    miners from hazards related to sealed areas.  In the

 3    past, the seals were always designed to protect not

 4    only the active area but the sealed area.

 5               As it began years ago, there was a lot

 6    more explosions in the active area of the mine, and

 7    one of the fears were that the active area explosions

 8    would blow out the seal and get into the gob, and now

 9    either cause a further explosion or release further

10    gases into the ventilation system.

11               I think this is important because up

12    until this time, engineers could not use shapes to

13    help increase the strengths of their designs.  Take

14    the Grand Cooley Dam.  It's shaped in an arch because

15    the water is on one side of it.

16               What these guys are forced to do is build

17    a dam, if you will, but they don't know if the water

18    is going to be on this side or the other side.  So

19    with the new reg, this is an improvement, and I hope

20    that the tech support people that are reviewing these

21    designs are thinking that now we can use shapes, if

22    that was the intent of this proposed 75335 section.

23               And then finally, on the question that

24    was brought up about existing seals, I really don't

25    think that's a good idea to go around and replacing

0113

 1    the existing seals unless there's evidence that they

 2    are improperly installed, used in the wrong

 3    situation, that there is a compelling reason. Because

 4    for every non compelling reason to change a seal out,

 5    I can think of the great dangers and hazards that you

 6    are going to expose the crews to that have to go in

 7    and replace these seals, if it's in a situation where

 8    they have to knock the seals out.

 9               So I would use caution there and only

10    exercise that profound action in an event that the

11    seals are suspect anyway.  So to close, I think we

12    all have in mind that we have to mine coal safely.

13    The safest thing to do, strictly speaking, is just

14    not mine the coal.

15               The most dangerous thing is to mine the

16    coal and just walk away.  What we have to do is

17    provide a level of safety that is practical and

18    addresses all but the most unlikely events.  The

19    worst thing we can do is just try to solve the

20    political questions, and the popular perceptions.

21               And the only thing that has changed

22    really is that now it's easier to blame somebody.

23    Thanks for your time.  If there's anything I can

24    clarify, please ask.

25        MS. SILVEY:  Thank you, Mr. Amick.  I'll start

0114

 1    with my last comment first that I had in the order

 2    that I had them written down here.  You said that you

 3    hope that in the future, the discussion section is

 4    left out, and I probably would even ask my attorney

 5    for some help here, but -- because you said sometimes

 6    you can get two different interpretations.

 7               And clearly, that's not our intent that

 8    one who reads the preamble and the rule itself get

 9    two different interpretations.  In point of fact, the

10    intent is just the opposite, that the discussion in

11    the preamble clarifies and provides a rationale for

12    what the Agency did in the rule.

13               So in the event that you indeed have

14    gotten two different interpretations from some of the

15    five standards, 335, six, seven, eight, four, I

16    guess, four standards in the ETS, and the provisions

17    under the four standards, then I would really like

18    you to let us know that.

19               You said you were going to be providing

20    additional written comments, so I would like you to

21    let us know that because I foresee that, as we do

22    this final rule, it indeed will have the rule part of

23    it, the language part, 33567 and eight, and it will

24    also have a discussion part in the preamble.

25               With respect to your statement on the

0115

 1    cost, you did say, and I think you anticipated what I

 2    was going to ask you, you did say that you were going

 3    to get more specific numbers, and you would get that

 4    to us.

 5               But you said the cost had been 25 percent

 6    of total profits and maybe 15 -- 10 or 15 percent of

 7    revenue.  If you would, in terms of making a

 8    statement that it -- if you would get us specific

 9    amounts.  You disagree with the amount that we had in

10    our estimate because we put in the best good faith

11    estimate that we had in terms of getting the

12    experience of our people and many times called in the

13    mining industry itself, both manufacturers and

14    operators.

15               So if you could indeed, if you have

16    different numbers, get those numbers to us.  With

17    respect to the professional engineer and the

18    certification of the professional engineer, and I

19    know that our attorneys will be looking at this very

20    closely also.

21               I guess I'm speaking for them, but on

22    that issue, and a number of people have raised that.

23    I mentioned earlier, we have an additional set of

24    questions coming out, answers coming out, and they

25    are -- we got a lot of comment about, well, what do

0116

 1    you want.  The PE, professional engineer there,

 2    looking over the construction 24/7, and I don't think

 3    -- I mean I think I can say to you here, we didn't

 4    anticipate that the professional engineer would be

 5    looking at the construction 24/7, even in the ETS

 6    that we put out, but we will be getting some

 7    clarification on that issue out to everybody.  Did

 8    you want to add anything?

 9        MS. GREEN:  No, just to say, Erik Sherer

10    actually from Coal Mine Safety and Health has been

11    working on another set of Q's and A's, and actually

12    there's a question related to this issue where MSHA

13    makes that clarification.

14        MS. SILVEY:  Does anybody else want to add

15    anything?  Anybody else?  Okay, Mr. Amick.  Thank you

16    very much, but we do look forward to you following up

17    with specific comments and specific rationale for

18    suggestions you make before the record closes on

19    August 17th.

20        MR. AMICK:  Thank you.

21        MS. SILVEY:  Is there anybody else who wishes to

22    make a comment?  Anybody else in the audience who

23    wishes -- yes, sir.

24        MR. BARKER:  I'd like to make a comment.  You

25    want me up here?

0117

 1        MS. SILVEY:  Okay.  Yes.  Yeah.

 2        MR. BARKER:  My name is Gary Barker, b-a-r-k-

 3               e-r and I'm a private consultant.  I just

 4    have a real quick comment that is basically in the

 5    form of a question.  It doesn't have to be answered

 6    here, but I think the question needs to be answered

 7    at some point in time.

 8               My question is, after a PE submits a seal

 9    to MSHA, and MSHA approves the design and assigns it

10    a number, is or is not MSHA agreeing with that

11    design?

12               That's it.

13        MS. SILVEY:  Okay.  Thank you.  Are there any

14    more comments?

15        MR. BELL:  I've got one.  Donald Bell, d-o-n-

16               a-l-d, b-e-l-l.  I'm from West Kentucky.

17    I'm a professional engineer for the local mine there.

18    I've heard a lot of comments today about seal design

19    and certifications and things of this nature, and

20    I've also heard a lot of comments about how we can

21    make seals safer, perhaps through making them

22    stronger through the 120 psi or the 50 psi pipe

23    designs and construction.

24               At my particular mine, back in 2000, due

25    to an unfortunate incident, we had an inundation of

0118

 1    water.

 2               To save the majority of the mine, we

 3    constructed through MSHA's approval a set of bulkhead

 4    seals.  These seals are some 120 feet thick.

 5               I don't recall the exact number of yards

 6    that we put in this set of seals, but obviously these

 7    seals will not blow out.  And the reason I'm bringing

 8    this up, I've heard comments about the atmosphere

 9    migrating out from behind a set of seals if we use

10    these new type that are proposed.

11               I can assure you, because I have been

12    there personally, the atmosphere behind these seals

13    120 feet thick, and by the way, these seals were

14    hitched into the roof, ribs and floor five feet each

15    direction.  I personally looked at that and assured

16    that this was done correctly.

17               These seals still would leak atmosphere

18    because now they have approximately 55 psi of water

19    behind them.  They are completely inundated which

20    they were designed to be done.  Water leaks out of

21    the strata around the seals.

22               So regardless of how strong we build the

23    seal, to say that we can build it 100 percent safe to

24    where anything could be done outside that seal, is

25    not accurate.  I don't think that can be done.  I

0119

 1    just wanted to bring that up so that MSHA would take

 2    that into consideration when you're looking at these

 3    seal designs.

 4               Also, as we speak right now, we have a

 5    set of Mitchell Barrett seals which are being inerted

 6    with nitrogen gas to render the atmosphere there

 7    harmless.

 8               To do so, I had to go and drill down into

 9    a sealed area.  Again, I went through my local

10    office.

11               So now in a sealed area, which I'm

12    inerting, I have a two inch lightening rod, 331 feet

13    in the ground.  According to some of the speculation

14    around the Sago disaster, lightening was transmitted

15    down a borehole.  Now, I don't want Mr. -- I forgot.

16    One of the previous speakers mentioned oil wells.

17               We have several oil and gas wells in our

18    mining field as well, which the casing is still

19    intact from surface to below the coal seam.  In this

20    particular case, my casing dead ends at the coal seam

21    itself.

22               Anyone familiar with electricity knows

23    lightening or electricity is going to the easiest

24    point of ground.  So I would kind of like you to

25    think about those issues as well.  No one can replace

0120

 1    any of the tragedies that's happened.

 2               No one can replace any of these loved

 3    ones.

 4               I've had friends that I have lost myself,

 5    in particularly 1989, Pyro Mine disaster.  Some of

 6    you may know that one as well.  So I live with it

 7    daily, as many of the people in this room.

 8               Unfortunately some of the ladies that

 9    have lost husbands, no one can replace what they've

10    lost.

11               No amount of money can make them feel

12    better.  My heart goes out to them personally.  I

13    have friends that are at my operation right now that

14    I see daily.

15               Nothing could replace their loss, but

16    just like some of the other speakers that have

17    presented testimony here today, we need to be

18    realistic in what we are doing, and we don't need to

19    do something that is unrealistic from the standpoint

20    that it's just unachievable to meet the goals that we

21    would all like to achieve, which is better safety for

22    everyone.  And that's my only comment.

23        MS. SILVEY:  Thank you.

24        MR. SHERER:  I've got a question, if you don't

25    mind.

0121

 1        MR. BELL:  All right.

 2        MR. SHERER:  Did you inject liquid nitrogen or

 3    gaseous nitrogen?

 4        MR. BELL:  Gas nitrogen.

 5        MR. SHERER:  Gaseous nitrogen.  May I suggest in

 6    the future maybe a bigger diameter hole in a

 7    nonmetallic casing.

 8        MR. BELL:  You can.  However, sir, the company

 9    that supplies the nitrogen specified to us if we used

10    any type of a plastic casing, it would shatter.

11        MR. SHERER:  So it was a pressure issue?

12        MR. BELL:  It was the fact that the gas -- as

13    the coal, it would just change the properties.

14        MR. SHERER:  Yeah, the temperature.  There are

15    fiberglass casings available, but that may be an

16    alternative.  We can discuss this further in the

17    rulemaking process.  If you have any specific

18    information, could you please submit it for the

19    record?

20        MR. BELL:  Certainly.

21        MR. SHERER:  Thank you.

22        MR. BELL:  Thank you.

23        MS. SILVEY:  Is there anybody else?  Anybody

24    else here who wishes to comment?  Having not seeing

25    anybody else who wishes to make a comment or

0122

 1    presentation at this second Mine Safety and Health

 2    Administration public hearing, I will now tentatively

 3    draw this hearing to a close.

 4               Now, you ask why do I say tentatively.

 5               Because as I close it, we will remain

 6    here until 1:00 o'clock.  And if anybody -- a little

 7    after one, and if anybody shows up after one, then we

 8    will hear whatever testimony they have, but I'm going

 9    to officially close it now, but before I close it,

10    I'm going to make one final comment again, and that

11    is to thank all of you for your time and attendance,

12    and quite honestly, for your attention.

13               For those of you who gave us input, who

14    made a presentation, and for those of us who did not

15    make presentations, but just the fact that you were

16    here and you showed that you have an interest in this

17    matter.

18               We will take your information with us as

19    we -- for the remainder of the public hearings and

20    back to Arlington as we develop the final rule.

21               And we will do so in the manner we've

22    heard, as I said in my opening statement, try to

23    develop a rule that's safe, effective and can be

24    appropriately implemented.  And so with that in mind,

25    thanks to everybody again, and the hearing is now

0123

 1    closed.

 2        (Whereupon the meeting adjourned at 1:02 p.m.,

 3    it having been determined that no additional speakers

 4    were present.)

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0124

 1

 2                   CERTIFICATE OF REPORTER

 3              COMMONWEALTH OF KENTUCKY AT LARGE

 4

 5   I do hereby certify that I reported the public hearing

 6    of the Mine Safety and Health Administration on July

 7    12, 2007, and that this transcript is a true record of

 8    those proceedings.  As witness my hand and Notarial

 9    Seal this 24th day of July, 2007.

10

11

12   BARBARA J. ENNEKING, CERTIFIED VERBATIM

13   REPORTER/NOTARY

14   SUBMITTED ON: 07/25/2007

15


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