1





          1   OPENING STATEMENT

          2   BIRMINGHAM, ALABAMA

          3   JULY 19, 2007, PUBLIC HEARING

          4   EMERGENCY TEMPORARY STANDARD-SEALING

          5   OF ABANDONED AREAS

          6             MS. SILVEY:  Good morning.

          7             AUDIENCE:  Good morning.

          8             MS. SILVEY:  Before we start

          9   the record.

         10             (Whereupon, an off the

         11             record discussion

         12             occurred.)

         13             MS. SILVEY:  Again, good

         14   morning.  My name is Patricia W.

         15   Silvey.  I am the director of the

         16   Department of Labor, Mine Safety and

         17   Health Administration, Office of

         18   Standards, Regulations, and Variances.

         19             I will be the moderator of

         20   this public hearing on MSHA'S

         21   emergency temporary standard, or ETS,

         22   for sealing abandoned areas in

         23   underground coal mines.

                                                  2





          1             On behalf of Richard E.

          2   Stickler, the Assistant Secretary of

          3   Labor for Mine Safety and Health, I

          4   want to welcome all of you here today.

          5             The members of the panel are

          6   to my left John Urosek of MSHA's

          7   Pittsburgh Safety and Health

          8   Technology Center; Deborah Green who

          9   is our attorney on this project with

         10   the Office of Solicitor, the

         11   Department of Labor.

         12             And William Baughman who is

         13   the Regulatory Specialist in my

         14   office.  To my right, Eric Sherer.

         15   Eric is from the office of Coal Mine

         16   of Health and Safety.  And to his

         17   right, Robert Stone who is the Chief

         18   Economist in my office.

         19             Before we start this hearing

         20   this morning, I would like to ask if

         21   you would join with me in a moment of

         22   silence in memory of the miners who

         23   lost their lives in the Sago, the

                                                  3





          1   Aracoma, and the Darby Mine explosions

          2   in 2006.  And all of the miners who

          3   lost their lives in 2006 as well as

          4   the miners who have died in mine

          5   accidents so far this year.

          6             So, right now, if you would

          7   join me in a moment of silence.

          8   (Everybody in silence.)  Thank you.

          9   This is the fourth and last hearing on

         10   the Emergency Temporary Standard.  As

         11   many of you know, the first hearing

         12   was held in Morgantown, West Virginia

         13   on July 10th.  The second in

         14   Lexington, Kentucky on July 12th.  The

         15   third hearing was in Denver on July

         16   17th.

         17             In the back of the room, we

         18   have copies of the Emergency Temporary

         19   Standard and the Federal Register

         20   notice extending the comment period to

         21   August 17.  The purpose of these

         22   hearings is to receive information

         23   from the public that will help us

                                                  4





          1   evaluate the requirements in the

          2   emergency temporary standard and

          3   produce a final rule that protects

          4   miners from hazards associated with

          5   sealed abandoned areas.

          6             We will use data and

          7   information gained from these hearings

          8   to help us craft a rule that responds

          9   to the needs and concerns of the

         10   mining public, so that the provisions

         11   of the ETS can be implemented in the

         12   safest and most effective and

         13   appropriate manner.

         14             We published the emergency

         15   temporary standard in response to the

         16   grave danger that miners face when

         17   underground seals separating abandoned

         18   areas from active workings fail.  Seal

         19   failures at the Sago and Darby No. 1

         20   Mine in 2006 raised awareness of the

         21   problems with construction and design

         22   of alternative seals.  MSHA

         23   investigated these and other failures

                                                  5





          1   of alternative seals and conducted

          2   in-mine evaluations of these seals.

          3   MSHA also reviewed the history of

          4   seals in this country as well as other

          5   countries.

          6             On February 8, 2007, NIOSH

          7   issued a draft report titled

          8   "Explosion Pressure Design Criteria

          9   for New Seals in U.S. Coal Mines."

         10   The report makes recommendations for

         11   seal design criteria, which would

         12   reduce the risk of seal failure due to

         13   explosions in abandoned areas of

         14   underground coal mines.

         15             Based on MSHA's accident

         16   investigation reports, the draft NIOSH

         17   report, MSHA's in-mine seal

         18   evaluations, and the review of

         19   technical literature, MSHA has

         20   tentatively determined that new

         21   standards are necessary to immediately

         22   protect miners from hazards associated

         23   with sealed areas.  The emergency

                                                  6





          1   temporary standard addresses seal:

          2   strength; design and installation;

          3   construction and repair; sampling and

          4   monitoring and training.

          5             This ETS was issued in

          6   accordance with section 101(b) of the

          7   Federal Mine Safety and Health Act of

          8   1977 (Mine Act) and Section 10 of the

          9   Mine Improvement and New Emergency

         10   Response (MINER) Act of 2006.  Under

         11   section 101(b), the ETS is effective

         12   until superseded by a mandatory

         13   standard.  A mandatory standard must

         14   be published no later than nine months

         15   after publication of the ETS.  The ETS

         16   also serves as the proposed rule and

         17   commences the regular rulemaking

         18   process.

         19             As stated earlier, we will

         20   use the information provided by you to

         21   help us decide how best to craft the

         22   final rule.  The preamble to the rule

         23   discusses the provisions of the ETS

                                                  7





          1   and includes a number of specific

          2   requests for comment and information.

          3   As you address the provisions of the

          4   ETS or any specific requests for

          5   information, either in your comments

          6   to us today or in written comments

          7   sent to us in Arlington, please, be as

          8   specific as possible with respect to

          9   the impact on mine safety and health,

         10   mining conditions, and the feasibility

         11   of implementation.  At this point, I

         12   want to reiterate the specific

         13   requests for comment and information

         14   that we included in the preamble to

         15   the ETS.

         16             In the ETS, MSHA considered

         17   a performance-based approach to the

         18   strength requirement for seals.

         19   However, MSHA includes specific

         20   pounds-per-square-inch numbers when

         21   referring to the strength of seals as

         22   the agency believes this represents a

         23   more appropriate approach.  MSHA is

                                                  8





          1   interested in receiving comments on

          2   the Agency's approach to the strength

          3   requirement for seals.

          4             MSHA is also interested in

          5   receiving comments on the

          6   appropriateness of the three-tiered

          7   approach to seal strength in the ETS

          8   and the strategy in the ETS for

          9   addressing seal strength greater than

         10   120 psi.  As you know, under the ETS,

         11   new seals must be constructed and

         12   maintained to withstand:  A 50 psi

         13   overpressure when the atmosphere in

         14   the sealed area is monitored and is

         15   maintained inert.

         16             A 120 psi overpressure if

         17   the atmosphere is not monitored and is

         18   not maintained inert.  Or an

         19   overpressure greater than 120 if the

         20   atmosphere is not monitored and is not

         21   maintained inert and certain other

         22   specified conditions are met.

         23             And those conditions are

                                                  9





          1   pressure pilot or the likelihood of

          2   detonation and homogenous atmosphere

          3   throughout the sealed area.

          4             MSHA requests comments on

          5   the appropriateness of the Agency's

          6   strategy for addressing Seal strength

          7   greater than 120 psi.  If commenters

          8   believe a different regulatory

          9   approach should be developed for the

         10   final rule, the Agency would like

         11   commenters to provide the detailed for

         12   such a strategy; the rationale for

         13   such a strategy; and the feasibility

         14   of using such a strategy.

         15             MSHA seeks the views of the

         16   mining community regarding whether

         17   there are effective alternatives to

         18   the requirements in the ETS with

         19   respect to providing the most

         20   appropriate and protective action for

         21   miners exposed to hazards of existing

         22   sealed areas.

         23             Most alternative seals

                                                 10





          1   constructed before July 2006 were

          2   constructed to withstand a static

          3   horizontal pressure of 20 psi.  MSHA

          4   considered requiring mine operators to

          5   remove the existing seals and replace

          6   them with seals that withstand at

          7   least 50 psi.  MSHA also considered

          8   whether to require mine operators to

          9   build new seals out by existing seals

         10   or to structurally reinforce them.

         11             At this point, MSHA believes

         12   that replacing existing seals is

         13   impractical, and in some instances,

         14   may introduce additional hazards.

         15   MSHA seeks comments on the feasibility

         16   of including in the final rule a

         17   requirement that existing seals be

         18   removed and replaced with a higher

         19   strength seal.

         20             MSHA also considered whether

         21   to require mine operators to reinforce

         22   existing seals.  The Agency is

         23   concerned with the feasibility of this

                                                 11





          1   option and whether such a requirement

          2   could expose miners to greater

          3   hazards.  MSHA, however, will continue

          4   to explore technological advances that

          5   address feasible and safe methods to

          6   reinforce existing seals in

          7   underground coal mines.

          8             Commenters are encouraged to

          9   submit information and supporting

         10   data, regarding new technological

         11   advances to reinforce seal strength.

         12             MSHA believes that the

         13   sampling strategy in the ETS will

         14   yield results that reflect a

         15   reasonable representation of the

         16   atmosphere in a sealed area.  MSHA

         17   requests comments addressing the

         18   sampling approach in the ETS.  The

         19   Agency is particularly interested in

         20   comments concerning sampling, the

         21   sampling frequency, including sampling

         22   only when a seal is outgassing.  The

         23   Agency requests comments on whether

                                                 12





          1   another approach is more appropriate

          2   such as when the seal is ingassing.

          3   MSHA also requests comments,

          4   information, and experiences

          5   concerning sampling sealed areas.

          6             In the ETS, mine operators

          7   must develop a sampling protocol to be

          8   included in the ventilation plan and

          9   submitted to the District Manager.

         10   The ETS requires the mine operator to

         11   implement the action plan specified in

         12   the sampling protocol or withdraw all

         13   persons from the affected area when

         14   specified concentrations are

         15   encountered.

         16             Historically, when methane

         17   levels reach 4.5 percent in active

         18   areas, miners were withdrawn from the

         19   areas that were dangerous due to high

         20   concentrations of methane.  MSHA

         21   requests comments on this approach and

         22   whether it provides adequate

         23   protection for miners.

                                                 13





          1             MSHA is soliciting comments

          2   concerning issues related to

          3   establishing a sampling baseline.  The

          4   ETS requires that the mine operator

          5   specify procedures in the protocol to

          6   establish a baseline analysis of

          7   oxygen and methane concentration at

          8   each sampling point over a 14-day

          9   sampling period.  The baseline must be

         10   established after the atmosphere in

         11   the sealed area is inert or the trend

         12   reaches equilibrium.  MSHA is

         13   particularly interested in comments

         14   concerning the establishment of a

         15   baseline.  The Agency requests

         16   information, experiences with sampling

         17   of sealed areas, including data,

         18   analytical information, and the

         19   establishment of equilibrium, and

         20   trends.

         21             The Agency requests comments

         22   on the appropriateness of the

         23   requirement regarding the use of open

                                                 14





          1   flames or arc associated with, cutting

          2   and soldering activities within 150

          3   feet of a seal and the feasibility of

          4   this requirement.  The Agency suggests

          5   that commenters provide specific

          6   rationale in support of their

          7   position, and include alternatives, if

          8   applicable.

          9             The ETS requires each newly

         10   constructed seal to have at least two

         11   sampling pipes.  One pipe must extend

         12   into the sealed area approximately 15

         13   feet.  The others must extend into the

         14   middle of the intersection with the

         15   first connecting crosscut.  The ETS

         16   affords flexibility to mine operators

         17   for the placement of the sampling end

         18   to allow more accurate sampling

         19   strategies to better protect miners;

         20   therefore, the ETS requires the

         21   location of sampling points to be

         22   specified in the protocol provided.

         23   The Agency requests comments regarding

                                                 15





          1   the appropriate number and location of

          2   sampling pipes for a final rule.

          3             The ETS requires that a

          4   corrosion-resistant, water drainage

          5   system be installed in the seal at the

          6   lowest elevation within the set of

          7   seals, and that seals not impound

          8   water.  MSHA requests comments on this

          9   requirement for water drainage

         10   systems, including effective

         11   alternatives for final rule.

         12             MSHA requests comments on

         13   the appropriateness of the ventilation

         14   plan contents and whether additional

         15   information should be included.  When

         16   submitting information supporting your

         17   positions, please, include data

         18   related to projected cost and

         19   technological feasibility.

         20             As you know, the ETS

         21   requires removal of insulated cables

         22   from the area to be sealed and removal

         23   of metallic objects through or across

                                                 16





          1   seals.  The Agency believes that

          2   removal of insulated cables and

          3   metallic objects through or across

          4   seals is feasible and will not involve

          5   significant technical or practical

          6   problems.  But the Agency solicits

          7   comments on this provision.

          8             MSHA is also requesting

          9   comments on the scope and possible

         10   alternatives concerning site

         11   preparation, examinations of the

         12   sealed area, training, and

         13   notification to the Agency related to

         14   the construction and repair of seals.

         15             MSHA has prepared a

         16   Regulatory Economic Analysis for the

         17   ETS.  The Regulatory Economic Analysis

         18   contains estimated supporting cost

         19   data.  MSHA requests comments on all

         20   the estimates of costs and benefits

         21   presented in the ETS and the

         22   Regulatory Economic Analysis.

         23             To date, the Agency has

                                                 17





          1   received one comment on the ETS, and I

          2   believe it's still one comment.  You

          3   can view the comment on the Agency's

          4   website at www.msha.gov under the

          5   section entitled "rules and

          6   regulations."  The Agency has also

          7   answered a number of compliance

          8   questions from the public, covering a

          9   wide range of issues on the ETS.

         10   These questions and answers are posted

         11   on MSHA's Seals Single Source Page.

         12             As many of you know, the

         13   format for this public hearing will be

         14   as follows:  Formal rules of evidence

         15   will not apply, and the hearing will

         16   be conducted in an informal manner.

         17   Presentations may be limited to 20

         18   minutes at the discretion of the

         19   moderator.  The panel may ask

         20   questions of the witnesses, and the

         21   witnesses may ask questions of the

         22   panel.

         23             Those of you who notified

                                                 18





          1   MSHA in advance, I don't think we'll

          2   have any problems with having time

          3   today though.  If you wish to present

          4   written statements or information,

          5   please, clearly identify your

          6   material.  You may also submit

          7   comments following this hearing.

          8             And as stated earlier,

          9   comments must be submitted to MSHA by

         10   August 17th, which is the close of the

         11   comment period.  And comments may be

         12   submitted by any method identified in

         13   the ETS.

         14             MSHA will post transcripts

         15   from the public hearings on the

         16   Agency's website.  Each transcript

         17   should be posted approximately one

         18   week after completion of the hearing.

         19             We will now begin today's

         20   hearing with persons who have

         21   requested to speak.  Please, begin by

         22   clearly stating your name and

         23   organization to make certain we have

                                                 19





          1   an accurate record.  Also, if you

          2   would spell your name for the

          3   reporter.  And now, our first speaker

          4   is Tom McNider with Jim Walter

          5   Resources.  And I think he's here.  He

          6   is.

          7             MR. MCNIDER:  Well, first of

          8   all, I heard John wasn't going to be

          9   here.  I hear I'm it; is that true?

         10             MS. SILVEY:  I don't know,

         11   we'll see.  We have to see what

         12   happens after you testify.  People

         13   might be moved to say something.

         14             MR. MCNIDER:  They probably

         15   will.  How are you-all?

         16             MS. SILVEY:  How are you

         17   doing?

         18             MR. MCNIDER:  First of all I

         19   -- and I guess this is on?

         20             MS. SILVEY:  Yeah.  Make

         21   sure you talk into the mic.

         22             MR. MCNIDER:  I apologize

         23   for cutting it right here.  I don't

                                                 20





          1   know whether I held the panel up or

          2   not.  But, anyway, you know, I'm here

          3   to speak.  I'm Tom McNider,

          4   M-C-N-I-D-E-R, Jim Walter Resources.

          5   I'm here today to comment concerning

          6   the ETS, sealing of abandoned areas on

          7   the temporary standard that was issued

          8   May 22nd, 2007.

          9             And first, I'd like to start

         10   out by saying that, we understand the

         11   reason MSHA feels the need to issue

         12   the final rule or rule for the use to

         13   isolate abandoned areas.  But that, we

         14   are concerned that through pressure,

         15   they've issued a rule in haste without

         16   thoroughly considering all the

         17   parameters.

         18             Entry requested suggestions

         19   from the industry concerning such

         20   things as monitoring of existing seals

         21   but when offered, ignored them in the

         22   final rule.

         23             I was part of the NMA and

                                                 21





          1   Dixie Wade Committees that met with

          2   MSHA on various times.  I don't know

          3   have the dates.  But they were at

          4   least one meeting in Washington and

          5   then, there was other correspondence

          6   that I think was giving to MSHA

          7   concerning this rule.

          8             MSHA requested suggestions

          9   from industry concerning such things

         10   as monitoring of existing seals, but

         11   when offered, ignored them in the

         12   final rule.  Industry met with MSHA in

         13   Arlington to talk about the need for

         14   proper sampling protocol and the need

         15   in industry for instruments that can

         16   accurately measure gases from sealed

         17   areas.  But here again, MSHA has

         18   ignored these requests.

         19             And I believe even today,

         20   there's no official -- or I won't say

         21   official -- but guidelines as to how

         22   to collect samples from sealed areas,

         23   instruments to properly measure sealed

                                                 22





          1   areas.  And a general training that

          2   industry could use that would assist

          3   industry in how to adequately evaluate

          4   sealed areas.

          5             And that is a major, even

          6   for MSHA, that has been a major

          7   concern.  There have been numerous

          8   sampling areas in the field that has

          9   inadvertently caused problems of mines

         10   to be shut down when this was not a

         11   warranty.

         12             We're amazed that MSHA is

         13   trying to evaluate the explosive

         14   nature of sealed abandoned areas, was

         15   not even recognized all the gases that

         16   must be considered to determine these

         17   close in nature of a gob.

         18             The final rule requires the

         19   operator to measure oxygen and

         20   methane, but does not require

         21   measuring CO2, the gas derived from

         22   low temperature oxidation.  And I'm

         23   sure many of the ones on the panel, I

                                                 23





          1   know John is familiar with this, Eric

          2   probably.

          3             As you get low levels of

          4   oxidation, you derive blackdamp, which

          5   is a depletion of oxygen and increase

          6   in CO2.  CO2 is an inert gas, and even

          7   though methane and oxygen might be in

          8   the action range of 3 to 20 percent

          9   methane and above 10 percent oxygen or

         10   even appear to be explosive or may

         11   even appear to be explosive with

         12   methane above 12 percent or oxygen

         13   above 12 percent and methane in the 5

         14   to 15 percent range, it still may not

         15   be because of the inert nature of CO2

         16   that may be present in the sample.

         17             Industry discussed with MSHA

         18   in Arlington the use of a

         19   chromatograph to more accurately

         20   determine the constituent gases of

         21   sealed area when there was a question

         22   and that the true explosive nature of

         23   the sealed area needed to be

                                                 24





          1   determined.

          2             Industry discussed the

          3   benefits of having more accurate

          4   analysis and how these results could

          5   be evaluated using the calculations to

          6   plot the Zabetakis nose-curve.  A

          7   method that has been used throughout

          8   the industry for years to determine

          9   whether atmospheres are explosive or

         10   not when fighting fires.

         11             We were told that this would

         12   be an accepted method by Mr. Stickler.

         13   But when it became necessary to use it

         14   in the field, MSHA attached such a

         15   large measure of safety to it, that it

         16   became impractical to use.

         17             When methane is the only

         18   explosive gas, the R value of the

         19   Zabetakis nose-curve is one.  MSHA

         20   arbitrarily assigned an R value of .6,

         21   which would consider in the area under

         22   the R curve of one to the R curve of

         23   .6 is 130 percent safety factor.

                                                 25





          1             According to page 3 of

          2   IC7901, there's already a small safety

          3   factor built into the calculations

          4   when used at ordinary temperatures.

          5             Jim Walter's understanding

          6   when the temporary standard was

          7   released and my understanding was,

          8   that the reason that MSHA or one of

          9   the ways that MSHA was looking at it

         10   with a 3 to 20 percent indicator, if

         11   oxygen was greater than 10 was an

         12   action level to do other things.

         13             Jim Walter has on-site

         14   chromatograph and anyone that's ever

         15   dealt with fire situation or when

         16   you're trying to -- even MSHA collects

         17   bottle samples routinely to further

         18   evaluate and get a closer more

         19   accurate call with a chromatograph.

         20             So, therefore, it was

         21   logical, and I still believe it was

         22   logical that to follow-up hand

         23   readings, which handheld readings are

                                                 26





          1   not as accurate as potentially a

          2   chromatograph as far as a

          3   chromatograph would be, then it

          4   certainly made good scientific

          5   technical reasoning to follow-up using

          6   a chromatograph as an evaluation to

          7   actually what is inside the sealed

          8   area or inside that analysis from that

          9   particular seal when there became a

         10   question mark.

         11             I called Kevin Strickland to

         12   find out if this was a National

         13   guideline to use an R value of .6 and

         14   that did the sample result when

         15   plotted must be outside of this R

         16   value.  He told me that this was

         17   correct and that that would be their

         18   policy.

         19             Matter of fact, I was told

         20   that that was in the question and

         21   answers that he thought it was.  I

         22   believe he told me he thought it was

         23   in the June 11th question and answers.

                                                 27





          1   And when I checked, I could not find

          2   any reference to that.  But I was told

          3   by phone conversation that that would

          4   be the MSHA's policy.  And that that

          5   was a National way that they would

          6   look at it from not just a District

          7   11th point of view but from a National

          8   point of view.

          9             He told me that this was

         10   correct as I said before, and that

         11   that would be their policy.  I asked

         12   him where this originated from, and he

         13   told me from John.  I called John --

         14   or John Urosek -- I called John and

         15   asked him was there a mathematical way

         16   that this was derived to possibly

         17   relate it to the ETS and how was this

         18   value arrived at.

         19             He told me that this was an

         20   arbitrary safety factor that he had

         21   historically used in fighting fires.

         22   And I related to John that to me

         23   there's quite a bit of difference in a

                                                 28





          1   fire situation and one where the

          2   atmosphere is sealed and there is no

          3   fire.

          4             Industry was badly misled

          5   when we were told in Washington that

          6   we could use the Zabetakis nose-curve

          7   by Mr. Stickler.  And John and Kevin

          8   were in the room, and there was no

          9   discussion of any safety factors.  It

         10   never came up in the meeting.  If it

         11   was even considered, it would seem

         12   like that would be the logical place

         13   to discuss merits of one.

         14             Rather than using proper

         15   science and encouraging industry to

         16   use techniques that has been a

         17   standard since this development in

         18   1959, MSHA has done nothing to but

         19   discourage its use.

         20             If MSHA is concerned about

         21   the use of the chromatograph because

         22   it is not available to all operators,

         23   I mean, we can understand that to some

                                                 29





          1   degree.  But MSHA still could make a

          2   proper evaluation of atmospheres and

          3   sealed areas by requiring methane,

          4   oxygen, and CO2 to be measured with a

          5   handheld unit.

          6             The remainder of the gas

          7   will be nitrogen because these are the

          8   primary component gases in the sealed

          9   areas.  Knowing this, effective inert,

         10   which is the X axis of the Zabetakis

         11   nose-curve can be calculated using the

         12   formula on page 5 of IC7901.  You will

         13   have to do some mathematics, but you

         14   can get down to where you can use a

         15   handheld to give you an indicator of

         16   are you truly explosive or not

         17   explosive.

         18             The way the ETS is written

         19   is only to measure methane and oxygen.

         20   The miners are being withdrawn from

         21   mine under false pretense when the

         22   atmosphere is not even explosive.  Jim

         23   Walter's No. 4 Mine was threatened to

                                                 30





          1   be withdrawn on June 6 when we had

          2   samples from seals that were within

          3   the ETS guideline and was withdrawn on

          4   June 26 when, again, we were within

          5   the ETS guideline but were not

          6   explosive in either case when properly

          7   evaluated using a chromatograph.

          8             And as I said before, Jim

          9   Walter Resources has an on-site

         10   chromatograph and had the analysis

         11   before MSHA could get to the second

         12   one-hour reading.  And when I say

         13   "MSHA," MSHA was on-site at the time

         14   -- MSHA was there at the mine.

         15             By the way, as far as our

         16   chromatograph is concerned, we have a

         17   -- actually, we have about four

         18   chromatographs, which we routinely

         19   operate.  We've used it in fire

         20   situations.  MSHA, we've been in the

         21   Round Robin with MSHA.  If there's a

         22   question -- matter of fact, in 2001,

         23   MSHA operated on one shift with their

                                                 31





          1   mobile lab, and we operated on the

          2   other shift.  And I don't remember

          3   exactly, but we may have operated on

          4   12 hours and 12 hours.  So, I don't

          5   think there's a question as far as the

          6   validity of Jim Walter's chromatograph

          7   and the accuracy.

          8             The way the ETS is written

          9   is too vague when left up to the

         10   discretion of interpretation by each

         11   District and miners are withdrawn

         12   unnecessarily.  The ETS should require

         13   sampling of all pertinent gases and

         14   require a true analysis of the

         15   explosion nature of the sealed

         16   atmosphere.

         17             On June 27th after the mine

         18   was shut down for being inside the ETS

         19   guidelines of methane and oxygen, a

         20   meeting was held with the District

         21   Manager to discuss the Zabetakis

         22   nose-curve and other things such as

         23   how the overall atmosphere of the

                                                 32





          1   internal part of the sealed area could

          2   be determined using samples taken from

          3   degas holes.

          4             The results of samples taken

          5   from numerous degas holes, which

          6   reviewed with the District Manager to

          7   show how when you get further from the

          8   seal line, the atmosphere in the

          9   sealed area becomes more inert.

         10             This was also discussed with

         11   Mr. Urosek during conversation with

         12   him, and during this discussion the

         13   question was asked, how do you know

         14   that these results reflect what is the

         15   atmosphere in the mine.  I told him

         16   that many of the samples throughout

         17   when we've been collecting samples

         18   from Jim Walter and we have been

         19   actually have produced gas from degas

         20   holes within the sealed areas for

         21   years, that many of those type samples

         22   will have CO2 in them, which is

         23   derived from oxidation of the coal at

                                                 33





          1   the mine level.  And CO2 being a heavy

          2   gas, had to be coming from the mine.

          3             Today, I brought with me and

          4   will include in our comments and I

          5   brought it but I will submit this to

          6   MSHA at a later time with our actual

          7   written comments, but two Isopachs.

          8   One of which is methane within the

          9   sealed area, and the other one is

         10   oxygen.

         11             Now, these Isopachs are

         12   intended only to demonstrate to MSHA

         13   how the vast majority of the sealed

         14   areas inert, is only a very small

         15   fringe line where leakage gets into

         16   the sealed area, where the sealed area

         17   may potentially get into the explosive

         18   range.  This doesn't mean that it is

         19   in the explosive range.  It's just to

         20   demonstrate to MSHA how small these

         21   zones are.  You still have to look at

         22   the CO2 that potentially could be in

         23   the sample.

                                                 34





          1             These Isopachs are from a

          2   fairly wide scatter of data points,

          3   they do include the samples from where

          4   leakage and the sealed points.  But

          5   the Isopachs give you an indication of

          6   how air leaks into a sealed area and

          7   migrates along the fringe line and is

          8   influenced by the negative where the

          9   fan, it will leak in on the high

         10   pressure side and leak out on the low

         11   pressure side.

         12             These Isopachs also show

         13   that the sealed areas are not

         14   homogenous but vary in concentration.

         15   For MSHA to expect that no sample

         16   taken from the sealed area to ever be

         17   in the explosive range is too much to

         18   ask from any operator.

         19             Just from the fact that the

         20   area is sealed, means that it reacts

         21   to barometric swings and will breathe

         22   out on barometric lows and breathe in

         23   on barometrics highs.  And at certain

                                                 35





          1   times if the samples are taken when

          2   the barometer swings from a low to a

          3   high, this could be enough to

          4   temporarily shift a sample into the

          5   explosive range.

          6             MSHA should recognize that

          7   these phenomena will happen.  And

          8   there are times that a sample may be

          9   in the explosive range does not

         10   present a hazard to the miner if the

         11   operator could demonstrate that this

         12   area is small compared to the overall

         13   size of the sealed area.

         14             MSHA should consider a

         15   tiered approach what action is

         16   expected from the operator to the size

         17   of this zone and the potential hazard

         18   that it may represent.  To withdraw

         19   miners any time an explosive sample is

         20   found without considering the history

         21   of this particular sample and the

         22   relationship to the rest of the sealed

         23   area is impractical.

                                                 36





          1             Why establish a baseline if

          2   MSHA only intends to look at one

          3   sample.  Surely, a baseline is

          4   required to get the history of that

          5   particular sample.  Why do a baseline

          6   line if it's not going to be used.

          7             MSHA in haste has developed

          8   a regulation has made it virtually

          9   impossible for the operator to comply

         10   with.  The regulation does not provide

         11   for proper sampling of gases in sealed

         12   areas, proper analysis of these gases

         13   to determine if that experience

         14   explosive, or consider the fact that

         15   the sealed areas are not stable but

         16   change with adjustments to the

         17   ventilation and shifts to the

         18   barometer.

         19             The ETS talks about the

         20   barometer, but nobody reacts to the

         21   barometer.  Nobody looks at shifts.

         22   MSHA looks at one sample, these are

         23   problem.  MSHA has reacted as one

                                                 37





          1   sample that might be in the explosive

          2   range from one particular seal.  No

          3   matter how isolated it is from the

          4   active works and they've withdrawn the

          5   miners from the mine.

          6             Operators cannot manage

          7   their mines effectively under such

          8   regulation.  Sealing of abandoned

          9   areas in mines provides for operators

         10   to isolate older areas that are

         11   deteriorating, it eliminates dangerous

         12   areas that have to be maintained and

         13   travel.  It provides more effective

         14   ventilation to the act of work and

         15   allows the operator to abandon older

         16   areas so that he can better manage the

         17   remaining act of works.

         18             Operators need a regulation

         19   allows them to continue this.  And

         20   when an area is sealed, it is

         21   permanently sealed and does not have

         22   to be monitored and evaluated.

         23             We applaud MSHA for setting

                                                 38





          1   criteria for a seal that can be built

          2   by the operator that will allow this

          3   to be accomplished.  The standard for

          4   the 120 psi seals is reasonable and

          5   will greatly enhance the safety of

          6   miners.  But MSHA must continue to

          7   help industry to come up with

          8   construction techniques that can

          9   easily be placed in the mines.

         10             Matter of fact, under

         11   comments that Jim Walter -- under the

         12   NIOSH document, at that time, we

         13   commented to MSHA that we thought 100

         14   -- I don't remember the exact psi, but

         15   it was 100 to 120 psi seal we thought

         16   was reasonable.  And it is reasonable.

         17             But we need help evaluating

         18   ideas such as building two barriers

         19   some distance apart, pumping bulk

         20   material such as rock dust or gypsum

         21   between to provide the necessary

         22   strength.

         23             Research into construction

                                                 39





          1   techniques that can easily be done in

          2   remote areas of the mine, should be

          3   initiated.  Industry has asked

          4   Arlington, MSHA for assistance in how

          5   to do this.  I know MSHA put on their

          6   web page a way of using concrete that

          7   can be pumped.  There's a lot of

          8   difficulties with that and actually

          9   doing it underground.  We just

         10   recently built one ourselves, and

         11   there's a lot of complications with

         12   that.

         13             So, we believe, and our

         14   company has not -- matter of fact, we

         15   came out on the front end of the ETS

         16   about the 120 psi seal.  But there

         17   needs to be more done to help the

         18   operator be able to replace a seal in

         19   remote areas, some of these can be up

         20   to 1000 feet from a location where you

         21   can easily access water and power and

         22   be able to pump it to remote areas.

         23   So, we're asking for assistance in

                                                 40





          1   that end.

          2             I wanted to come to the

          3   panel today because I've been a part

          4   of NMA and DCOA and discussions early

          5   on.  I've talked to key players of the

          6   panel such as John Urosek.  I've

          7   talked with Kevin Strickland.  I've

          8   been in the meetings.  It's a very

          9   important issue.  It's an issue that

         10   shuts mines down in our opinion

         11   without valid reasons.  Our No. 4 Mine

         12   was shut down without valid reasons.

         13   We were held because we were in the

         14   position to technically evaluate it

         15   properly, but yet we got no credit for

         16   it, that's wrong.

         17             Other companies are probably

         18   in the same position.  MSHA is in a

         19   position, they've done in other areas

         20   to try to have technology forcing.  If

         21   there's not an instrument that

         22   accurately measures CO2, come up with

         23   one.

                                                 41





          1             If MSHA wanted it to happen,

          2   it can happen.  And I do believe there

          3   are instruments, they may not be

          4   perfect yet, but yet there is ways

          5   that we can look at bad gases that

          6   will give us a better indication.

          7             If MSHA is -- if

          8   chromatograph was something that was a

          9   benefit, believe me, companies would

         10   be looking at using chromatographs to

         11   then shutting the mine down.  But yet

         12   MSHA has not recognized it.  We need

         13   MSHA to write this ETS with valid

         14   signs and looking at is the

         15   atmosphere, truly explosive or is it

         16   not explosive, and we need MSHA to

         17   recognize the fact that atmospheres

         18   within sealed areas are not constant,

         19   even though they're sealed, they're

         20   still influenced by other factors such

         21   as the barometer and even ventilation

         22   adjustments that could be made.

         23             What may be set up today as

                                                 42





          1   far as the way the seal line reacts,

          2   when you make an adjustment in the

          3   active work side of the mine, it can

          4   influence the atmosphere on the inside

          5   of the sealed area.

          6             So, anyway, that's the

          7   reason that Jim Walter felt it was

          8   important.  We appreciate the panel

          9   coming today to listen to us.

         10   Hopefully, these comments will be

         11   reviewed and taken into consideration.

         12             And if there's any question,

         13   I'll be happy to try to answer them.

         14   And I apologize for being here at the

         15   last minute.  But, anyway, I hope I

         16   didn't hold the panel up.

         17             MS. SILVEY:  Thank you, Mr.

         18   McNider.  In your comments, I'm sure

         19   some of my panel members have

         20   something to say.  I have a few

         21   opening comments.  You talked about --

         22   and I must say that the monitoring and

         23   sampling requirement is an important

                                                 43





          1   aspect of the ETS.  And you talked

          2   about suggestions on monitoring that

          3   has been given to MSHA but ignored in

          4   the final rule.

          5             And I will -- and you made a

          6   number of other comments.  So, one of

          7   the things, overall things I'm going

          8   to say, and I've been saying this to

          9   everybody, you know, so we won't get

         10   into a dispute over that right now.

         11   What we talked about is how we move

         12   forward and craft this rule in the

         13   most workable manner, the safest

         14   manner for miners and the most

         15   workable manner to be implemented.

         16             So, in terms of the -- and

         17   yes, we do, just like you -- and I

         18   think it may be implicit, that was

         19   implicit in your comments, there are a

         20   variety of mining conditions that this

         21   rule has to address.

         22             So, one of the things I

         23   would ask you to do and anybody else

                                                 44





          1   who wishes to make comments is, when

          2   you talk about the sampling and your

          3   recommendations for the sampling, and

          4   you said that you would send a written

          5   copy, you would supplement this with

          6   written -- follow-up with written

          7   comments, be real specific with the

          8   suggestions that you have for

          9   sampling.  Even if it includes

         10   alternative language for sampling,

         11   alternative language to the language

         12   we include in the ETS.

         13             You also talked about a

         14   number, and I see we have our people

         15   from District 11 here.  We have our

         16   District Manager here.  You talked

         17   about that a number of sampling errors

         18   in the field that have caused mines to

         19   shut down.  And I assume, you mean

         20   unnecessarily.

         21             If we have committed a

         22   number of sampling errors in the field

         23   that have caused mines to shut down,

                                                 45





          1   I'd like for you to provide me with

          2   examples of that.

          3             MR. MCNIDER:  Okay.

          4             MS. SILVEY:  I don't know

          5   whether you -- one of the other things

          6   you talked about was in terms of

          7   sampling if there's an explosive area.

          8   But it's not a hazard to miners if the

          9   area is small in relation to the

         10   entire sealed area.  I think I recall

         11   you saying that.

         12             Could you explain that?

         13   Tell me a little more what you -- you

         14   said if the area is small.  Do you

         15   have some relationship to small in

         16   terms of what you're talking about

         17   there?

         18             MR. MCNIDER:  Let me expand

         19   on that a little bit.

         20             MS. SILVEY:  Yeah.  Expand

         21   on that a little.

         22             MR. MCNIDER:  Right.  Early

         23   on what we talked about at Jim Walter

                                                 46





          1   Resources, and more of this will be

          2   followed up as far as the National

          3   comments from NMA.  So, it will get

          4   into specifics about how the ETS we

          5   believe should be rewritten.  The

          6   rationale of why we think it should be

          7   rewritten a little bit different.  So,

          8   it will get into more specifics.

          9             That's why at this meeting

         10   today, I wanted to talk -- when you

         11   asked about one particular mine that

         12   was shut down, based on hand samples,

         13   not given adequate time to follow-up

         14   with chromatograph, that happened in

         15   our No. 4 Mine.  That's the case I'm

         16   personally familiar with.

         17             I know there are about eight

         18   mines in discussions with NMA.  I

         19   believe there are other mines where

         20   there is questions about errors in the

         21   field, being able to sample.

         22             I know when I looked at this

         23   from the early on to try to find an

                                                 47





          1   instrument out there that would

          2   measure methane, oxygen, and CO2,

          3   they're not readily available.  And I

          4   don't know whether MSHA's panel has

          5   looked at instruments.

          6             Industrial Scientific offers

          7   ones that reads higher levels of

          8   methane with oxygen.  I think there's

          9   like a 620 and there's a 400,

         10   something that I think is used in the

         11   field.  The only one that we were able

         12   to find at the time was a CSE Drager

         13   Miniwarn that would measure CO2.  But

         14   there's even complications with that

         15   that we're coming to find out.

         16             So, my reference was that

         17   early on that MSHA -- that we

         18   requested from MSHA, and when you take

         19   samples from sealed areas, it's

         20   different from reading it in just an

         21   atmosphere.  If there's one that maybe

         22   has a slight differential out, you

         23   need assistance through a pump, you

                                                 48





          1   need to make sure that you properly

          2   guarded the instrument that you don't

          3   get influence from the active work

          4   side.  There's more to sampling a

          5   sealed atmosphere than just taking one

          6   on the active work side.

          7             So, what we discussed with

          8   MSHA was about coming up with some

          9   general guidelines and also some

         10   instruments that would assist in doing

         11   this.  To my knowledge, that hasn't

         12   been done yet.

         13             To measure methane and

         14   oxygen without looking at the other

         15   pertinent gas, in our opinions, is

         16   wrong.  And we've looked at the CSE.

         17   I've recommended to our company that

         18   we definitely plan to look at CO2,

         19   that's an inert gas that goes into the

         20   composition of the atmosphere

         21   explosive or not.  I think John is

         22   well aware of this just as well as I

         23   am.  So, for MSHA not to include that,

                                                 49





          1   is wrong.  And that is what we asked

          2   for early on from the industry.

          3             The other thing that we

          4   discussed back to the size of the

          5   zones, typically, where most problems

          6   -- and I'm talking about once a gob

          7   has stabilized, has gone through the

          8   -- you know, when you initially

          9   sealed, I'm not talking about that,

         10   I'm talking about after some period of

         11   time -- the primary zones that are

         12   concerned are the ones trickling along

         13   the fringe line right inside the seal.

         14             And normally, they leak in

         15   where you're furthest away from the

         16   fan, and they typically leak out some

         17   position closer to the fan.  And it's

         18   just a very -- the flow paths are

         19   extremely small; therefore, those

         20   zones are typically very small.

         21             And when I give MSHA, and I

         22   will furnish this with our comments.

         23   Basically, what it does, we have very

                                                 50





          1   large gobs and we have a large number

          2   of potential sampling points from

          3   within the gob and it demonstrates

          4   what I'm trying to point out to MSHA

          5   that these zones that potentially

          6   could be a problem are very small.

          7             And they will react to

          8   barometric swings, and they will react

          9   to changes in ventilation.  And,

         10   typically, an operator may be able to

         11   keep all of those points out of the

         12   explosive range, but there are times

         13   they could shift in and out based on

         14   the changes in barometric influence.

         15             What I'm trying to tell MSHA

         16   is, there should be a tiered action to

         17   what you do based on how large those

         18   zones are and what the influence to

         19   the mine is.  And there will be other

         20   language I think that will give you

         21   better guidelines to exactly what

         22   we're saying.  I'm not ready to do it

         23   today.

                                                 51





          1             MS. SILVEY:  For us to write

          2   a regulation, conceptually, I

          3   understand what you're saying.  But

          4   for us to put the mining community on

          5   notice as to what our requirement is,

          6   you've got to translate that concept

          7   into some specific requirement.  And

          8   that's why I was asking you specifics.

          9             MR. MCNIDER:  I think you'll

         10   get that.

         11             MS. SILVEY:  Okay.  The

         12   other thing we talked about -- I tell

         13   you what I'm going to do, I'm going to

         14   ask one more question, and then I'm

         15   going take a break, if people don't

         16   mind, and then Mr. McNider we'll

         17   retake up with you.

         18             One other question I have

         19   before we take the break.  You talked

         20   also with respect to the sealed

         21   strength.  You said there were a lot

         22   -- and one of the things I want to say

         23   here is that, MSHA does want to

                                                 52





          1   provide some type of guidance and

          2   compliance guidance to the mine

          3   community on the sealed strength and

          4   designs.  And to that end, I think

          5   we've included some things on our

          6   website for 50 psi and 120 psi sealed

          7   applications.

          8             But you talk about

          9   complications when used in concrete

         10   seals, particularly, in a remote area.

         11   Could you expand on the specific

         12   complication?

         13             MR. MCNIDER:  Sure.  When

         14   you're getting ready to pump a 3- to

         15   5,000 psi concrete mix, which has a

         16   lot of aggregate in it to bind it.

         17   And I'm not a civil engineer, so

         18   therefore I'm not going to try to go

         19   into the, you know, the mechanics of

         20   what happens to give you the 120 psi

         21   strength.

         22             But it's difficult to pump.

         23   It is extremely -- when you start

                                                 53





          1   getting more remote from the sealed

          2   area and get hundreds of feet from the

          3   seal, which is not unusual in

          4   underground workings, these areas also

          5   start to somewhat deteriorate and

          6   trying to get permissible equipment or

          7   nonpermissible equipment into areas to

          8   pump.  It becomes difficult.  And it's

          9   limited as to how far you can pump

         10   those type materials.

         11             So, that's what I'm saying

         12   is that we are requesting from MSHA to

         13   give us some other work to come up

         14   with other type techniques that where

         15   you can get a 120 psi seal.  It might

         16   mean where you build barriers like a

         17   brattish or a standard like what was

         18   called a Mitchell-Barrett seal, which

         19   is cross-course blocks.  But in

         20   between that to give it the 120 psi

         21   strength, you can clump a bulk

         22   material such as rock dust or gypsum

         23   or something that will bind and give

                                                 54





          1   it the weight so it will resist the

          2   explosive force.  And those type

          3   things you can pump quite a long ways.

          4             That's what I'm saying that

          5   MSHA needs to go back.  They put on

          6   their website how to build a concrete

          7   or cement seal, but to actually do

          8   that in the mine is difficult.  I know

          9   there are other companies that are

         10   also out there that are trying to come

         11   up with sealed techniques, which I do

         12   know in time, I believe this will

         13   happen.

         14             But we request MSHA that

         15   there are companies that need the

         16   seals today.  And what's in their web

         17   page, I believe most companies will

         18   struggle with putting that in the

         19   mine.

         20             MS. SILVEY:  All right.  We

         21   will take up -- if you don't mind, we

         22   will continue this with you after.

         23   Can we, please, take maybe a five to

                                                 55





          1   ten minute break, no longer than ten

          2   minutes.  Thank you.

          3             (Whereupon, a recess was

          4             taken at this time.)

          5             MS. SILVEY:  Back on the

          6   record.  Continuing on with the Mine

          7   Safety and Health Administration

          8   Public Hearing on seals and abandoned

          9   areas in underground coal mines.

         10             Mr. McNider, one of the

         11   things, and we have said this, the

         12   panel members -- oh, before I move any

         13   further, we have a number of people in

         14   the audience who helped in drafting

         15   this ETS.  Maybe they don't want to

         16   take credit for it now after all you

         17   said about it.  That's all right, I'm

         18   sure they will.  If they don't mind me

         19   mentioning their names.  Javier L.

         20   Romanach with the Solicitor's Office.

         21   They're looking for you Javier.

         22   Roslyn Fontaine with the Office of

         23   Technical Support.  Richard Allwes

                                                 56





          1   with the Office of Technical Support.

          2   Dennis Swentosky.  Dennis is with the

          3   Coal Mine Health and Safety.  And

          4   David Hershfield who is an economist

          5   in my office.  And to do this ETS in

          6   somewhat of a timely fashion, did

          7   require a lot of resources.  And so,

          8   in addition, to the members on the

          9   panel, those people that whose names I

         10   mentioned also helped in drafting the

         11   ETS.

         12             But as I said before,

         13   sampling, this whole sampling issue

         14   has come at a number of the previous

         15   hearings.  I would like to say to

         16   you-all that MSHA has a third set of

         17   compliance questions and answers.  And

         18   I have said this earlier, but that set

         19   of questions and answers should be

         20   coming out very soon, and that should

         21   provide some additional guidance to

         22   the mining community.  I'm sure it

         23   won't be the end word, and I'm sure

                                                 57





          1   that even after that set comes out,

          2   there may be additional questions and

          3   answers.

          4             Also, MSHA will have a

          5   procedure instruction method that

          6   talks about how the Agency will sample

          7   and will do other of the Agency's

          8   activity, that should be coming out at

          9   sometime soon.  And all we can do is

         10   encourage the mining community of any

         11   time you have questions, you obviously

         12   work through your district, your field

         13   people, our field people, and also if

         14   you have questions, you can feel free

         15   to call us at headquarters at any

         16   time.  And we'll do the best we can to

         17   address the situation.  Sometimes it

         18   may not always be the answer that you

         19   want, but we'll try to address it as

         20   best we can.  So, I did want to make

         21   that point.

         22             At this point though, I'm

         23   sure some members of the panel have

                                                 58





          1   comments that they might want to make.

          2             MR. UROSEK:  Tom, I'm

          3   particularly interested, if you could

          4   help us out with some information on

          5   the Zabetakis curve.  And in

          6   particular, you mentioned safety

          7   factor and what you feel may be

          8   appropriate.  I realize you might not

          9   be in position to do that at this

         10   moment, but if you could provide it in

         11   your comments, in specific, to just

         12   what your thoughts are and if there

         13   should be a safety factor and how that

         14   should be administered, using the

         15   Zabetakis curve.

         16             And particularly, if you're

         17   familiar with the bottom of the

         18   Zabetakis curve and that it rests

         19   generally around five percent.  And if

         20   you use an R factor, it doesn't take

         21   into consideration any safety factor

         22   below that and how that could be

         23   addressed; for example, instead of a

                                                 59





          1   nose curve that's at the same location

          2   4.6 and 1, if it should be drawn below

          3   that or whatever recommendation you

          4   have in that.

          5             MR. MCNIDER:  John, we will

          6   -- I'll incorporate that because I

          7   mean that has been in discussion.

          8   I'll just say one thing about it today

          9   and I'd rather wait to comment as an

         10   official from Jim Walter and make sure

         11   what our position is going to be.

         12             In the Zabetakis nose-curve

         13   on page 3 I did in my verbal, it does

         14   have a small safety factor built in it

         15   today.  So, there is one incorporated.

         16   It's in the literature from the IC,

         17   and that's on page 3 I believe.  But

         18   we will comment on that.

         19             MR. UROSEK:  Okay.  I

         20   appreciate that.  And you also

         21   mentioned in sampling different areas,

         22   you mentioned the small volume of

         23   potentially explosive area versus the

                                                 60





          1   large area of the gob that may be

          2   inert.  And I know Pat asked you this

          3   specifically, but I'll just repeat

          4   that because it's real important to us

          5   to have a feel for how big that zone

          6   really is.  If there is any way or any

          7   information that you may have that can

          8   quantify that for us and is specific

          9   in relation to where that zone

         10   potentially could be in relation to

         11   where the seals are.  That would be

         12   very helpful to us.

         13             MR. MCNIDER:  Yeah.  We will

         14   do that also.

         15             MR. UROSEK:  You had

         16   mentioned about different samples that

         17   you've taken in sealed areas in

         18   relation to your fans; for example,

         19   some that are under lower pressure,

         20   some are under higher pressure.  And

         21   that has been something that we've

         22   considered.  But we would appreciate

         23   your input into that.

                                                 61





          1             Especially, as it relates to

          2   what can be done in those factors and

          3   also how that affects that particular

          4   zone of where there might be the

          5   potential for explosive mixture and

          6   how large that may be.  And anything

          7   that you may have tried to solve that

          8   issue would be very important to us.

          9             MR. MCNIDER:  One thing I

         10   told Pat earlier, John, you know, I've

         11   worked with NMA as part of that

         12   committee.  And I think you will, from

         13   the NMA, will see a lot of what our

         14   thoughts are about specifics, about

         15   size of the zone, what your trigger

         16   and action level, some other things.

         17             So, I think more of that,

         18   but I'll follow-up on that.  If it

         19   doesn't come through the NMA, it will

         20   come through us.

         21             MR. UROSEK:  Whether you

         22   have some particular practical

         23   experience from actually doing it in

                                                 62





          1   your mind, which sometimes it may be

          2   far from the overall picture, but that

          3   that particular knowledge will be

          4   helpful for us.  You mentioned the

          5   barometer and the changes that can

          6   occur at the sampling location.

          7             Any information that you

          8   could help us with the barometer

          9   changes, we acknowledge as you've

         10   said, there's going to be a time

         11   period when the atmosphere is going to

         12   change behind the seal at the sampling

         13   location, and there's going to be a

         14   zone in particular at that location,

         15   that sampling location, that may

         16   change from nonexplosive to explosive

         17   for a period of time.

         18             But how large of an

         19   explosive zone does that represent.

         20   If you have any information that could

         21   help us quantify that and make that

         22   determination; for example, is it just

         23   five feet, and it's just right at the

                                                 63





          1   sampling point, and then, it

          2   disappears as the barometer continues,

          3   or does that zone get larger.

          4             Anything that you could

          5   provide to help us with that, we would

          6   greatly appreciate.

          7             MR. MCNIDER:  I brought

          8   something with me today, John, but I

          9   don't want to provide it because I

         10   haven't even visually gone through the

         11   accompanying set, and I don't have

         12   these in writing.  I will give you

         13   that.  It was those Isopachs I talked

         14   about.

         15             Gives you kind of -- it's

         16   like, you can't use it and say, yeah,

         17   this is contour line and this is this

         18   one.  It gives an indication of how it

         19   reacts, which is what you're asking

         20   for, using internal holes as part of

         21   the data base to give you the network

         22   to isopach it.

         23             So, I do have that.  I will

                                                 64





          1   furnish that to you to give you an

          2   idea about what I'm talking about and,

          3   you know, where these areas are.

          4             That's been discussed with

          5   MSHA I know talking about that they

          6   should look at this in a tiered

          7   approach because I don't think at all

          8   times operators can guarantee you'll

          9   never have one or two points that are

         10   potential to swing in and out of that

         11   zone.

         12             So, there will be -- I think

         13   you'll get other information about

         14   this.  I know I'm planning on

         15   providing this to you.  And I will get

         16   that.  And I think from the National

         17   comments you'll see more of what I'm

         18   talking about.

         19             MR. UROSEK:  And one of the

         20   things, I don't know if it does

         21   address, but I hope that it would, is,

         22   you know, we acknowledge what occurs

         23   in a gob area, particular in your gob

                                                 65





          1   areas where you're looking at multiple

          2   long holes that are sealed together

          3   and the atmosphere that you may be

          4   able to get from your degasifications

          5   and sampling, but how did that relate

          6   to the atmosphere that may be in the

          7   open entries; for example, the mains

          8   that may be connected with that.  And

          9   in particular, we're interested in

         10   what the extent of potential explosive

         11   mixture may be in those open areas and

         12   how that relates to the sampling that

         13   you have in your degas holes.

         14             Any information on that,

         15   that help us clarify that would be

         16   greatly appreciated.

         17             MS. SILVEY:  I'll just

         18   follow-up.  I guess what John is

         19   saying, to draw the lent, you talked

         20   about the samples from the degas hole

         21   to show that they are representative

         22   of what is in the sealed area.

         23             MR. UROSEK:  And in

                                                 66





          1   particular, those areas that are the

          2   open entries that may be in front of

          3   the actual gobs themselves.  And

          4   anything to tie that together.  We

          5   would greatly appreciate that.

          6             MR. MCNIDER:  One thing I

          7   will say about, when you get into the

          8   sealed area, you know, then it starts

          9   to act like it's sealed, like a glue

         10   of somewhat; although, there's leakage

         11   in and out of it, which we talked

         12   about a long fringe lines because it's

         13   not perfectly sealed.

         14             But once it is sealed as you

         15   get more and more remote, it tends to

         16   become -- it's not homogenous because

         17   you can vary it, depending on what you

         18   do at certain points.  And, you know,

         19   I don't believe it's a homogenous

         20   mixed throughout, you've got layering

         21   and all kinds of things that are.

         22             But as you can remove more

         23   from the sealed fringe line and you

                                                 67





          1   get more internal to the gob, then I

          2   do think that as you get collection

          3   points, they do tend to represent what

          4   is more in the atmosphere for that

          5   complete sealed area.

          6             And there are -- and, you

          7   know, I'll try to expand on that a

          8   little bit.

          9             MR. UROSEK:  And any data

         10   that you have, and I'm sure your

         11   comments, and I know we've asked for

         12   this, any information as far as the 15

         13   sampling pipe versus the sampling pipe

         14   that extends into the cross-cut and

         15   your thoughts on that area would be

         16   important to us.

         17             MR. SHERER:  Mr. McNider, I

         18   understand that you are a major

         19   producer of coalbed methane?

         20             MR. MCNIDER:  We are a

         21   producer of coalbed methane, yes.

         22             MR. SHERER:  You produce

         23   what is commonly called gob holes in

                                                 68





          1   your active panels, don't you?

          2             MR. MCNIDER:  Yes.

          3             MR. SHERER:  What's the

          4   composition of that coalbed methane?

          5             MR. MCNIDER:  Well, let me

          6   describe that a little bit to you

          7   because I think this is a little

          8   confusing to MSHA.

          9             MR. SHERER:  Sure.

         10             MR. MCNIDER:  When you have

         11   an active panel and you go through and

         12   you get the cave and you expand the

         13   upper strata or collapse the upper

         14   strata and whatever other coal seems

         15   that may be in that upper strata and

         16   from the mine, particular mine, the

         17   fractured zone right at the mine

         18   level, initially, you're going to get

         19   a high production rate of methane,

         20   which will, typically, in our case, is

         21   extremely high.  It's pretty much

         22   pipeline quality gas, which is 95

         23   percent plus.  And that varies with

                                                 69





          1   how hard you produce it.

          2             But those wells are on a

          3   fairly rapid decay curve; in other

          4   words, once you put one of those on

          5   line, typically, by the time the panel

          6   is mined out, they have greatly gone

          7   down in their production rate and

          8   their decay is rapid.

          9             So, therefore, as you move

         10   to the next panel, it continues to

         11   decline, and it gets to the point

         12   where eventually those wells can be

         13   just shut in and have very very

         14   minimal impact.

         15             So, as the gob or as you

         16   mine adjacent panels and you go with

         17   time, those holes then become less and

         18   less active as far as just methane.

         19   Now, when you shut them in, they can

         20   charge to some degree, but they're

         21   easily drawn back down typically.  And

         22   because it's not like when you first

         23   go under.

                                                 70





          1             So, therefore, depending on

          2   how much negative and how much you

          3   produce from those wells, the old

          4   abandoned wells, you can pull --

          5   you're actually, you're pulling less

          6   from the wellbore, which you might be

          7   initially, and you're pulling more

          8   from the horizon at the mine level.

          9             That's why I indicated to

         10   John that these don't.  When you have

         11   an active well that's in the active

         12   gob in the panel you're mining that's

         13   just come on line, those are pretty

         14   much very inert like John and I

         15   discussed.  And they're all close to

         16   100 percent methane.  You want them as

         17   high as you can.

         18             But in time, that decay

         19   curve allows less and less methane to

         20   be produced through those type holes.

         21   And actually, when you look at the

         22   average production from one of those

         23   wells that have been into the mine for

                                                 71





          1   an extended period of time, typically,

          2   they run about 60 percent methane,

          3   they run about 3 to 5 percent oxygen

          4   or -- well, I say 3 to 5, a very low

          5   amount of oxygen.  And the rest of it

          6   is nitrogen and excess nitrogen and

          7   CO2.

          8             So, that's why when I

          9   discussed this with John from our

         10   experience, these wells do become good

         11   indicators of what is in the internal

         12   part of the sealed area.  They're as

         13   good a indicator as you would have

         14   because basically nobody has a number

         15   of boreholes that go into the mine

         16   environment.

         17              So, a degas hole is a good

         18   tool to use to get a representation

         19   what is further and further remote

         20   from the fringe of the seal line.

         21             MR. SHERER:  So, you have a

         22   tube that goes down to the actual

         23   mined out area?

                                                 72





          1             MR. MCNIDER:  No.  The way

          2   the well is originally put in, is it's

          3   drilled within about 40 feet of the

          4   active mines.  But then when the mines

          5   under and it fractures, it

          6   communicates with it.

          7             And what I'm saying is, that

          8   as an indication of how these wells

          9   are reacting to the gases at the mine

         10   level, these holes are cased to about

         11   halfway within the mine level, the

         12   rest of the way, it's open hole with

         13   limited influence from any other kind

         14   of coal that could possibly oxidize.

         15             And to my knowledge, there

         16   are no CO2 type.  There's no way that

         17   CO2 -- there's no CO2 that's

         18   introduced from the borehole.  So, as

         19   you produced this, you're getting more

         20   of an influence at the mine level.

         21   And many times, these holes actually

         22   see high percent levels of CO2, which

         23   is formed from blackdamp, which is an

                                                 73





          1   inerting process from the gob.

          2             And as you produce this,

          3   you're seeing the inert gas CO2, which

          4   is a heavy gas, which would layer

          5   closer to the mine port.  Even though

          6   those holes stop at about 40 feet

          7   above the mine level when they're

          8   first put in, they are actually

          9   communicating with the mine level, in

         10   my opinion because they do see CO2.

         11   They do see gases.  They see some

         12   oxygen, which originates from the

         13   mine.  It's the only way it can get

         14   there.

         15        Q.   What's the rank you're

         16   calling?

         17        A.   I'd have to -- I'm not sure.

         18   I can tell you this, it's not a

         19   SPONCOM type code.  I think it's a low

         20   rank code.  It does not readily --

         21   it's fairly slow to oxidize.

         22        Q.   Is it less than 20 percent

         23   of a ball from there?

                                                 74





          1        A.   No.  The ball runs from a --

          2   a low ball, which could be 18 to 20 to

          3   a higher ball, it's about 28.

          4   Something like that.

          5             MR. SHERER:  Isn't CO2 a

          6   common strata gas with lower rank

          7   coals, part of the coalification

          8   process?

          9             MR. MCNIDER:  We did a

         10   pristine gas back early on when we

         11   first got into degasification.  And,

         12   basically, what we see in our

         13   situation is, you're about 99 percent

         14   methane, a little bit of hydrogen.

         15   And I'm trying to remember what the

         16   remainder was.  I think it was -- I'd

         17   have to go back and look.

         18             But it was mostly 100

         19   percent methane with a little bit of

         20   hydrogen in it.  And there was one

         21   other gas, but I can't remember what

         22   that was.

         23             MR. SHERER:  Thank you.

                                                 75





          1             MR. UROSEK:  A couple more

          2   questions.  One of the important

          3   issues that came up recently, was

          4   leakage factors through the seals; in

          5   other words, how much does the seal

          6   leak.  And it seems to be more of a

          7   determination, not so much leakage

          8   through the actual material of the

          9   seal, but through the strata.

         10             If you have any information

         11   you could give us and any help or the

         12   amount of cubic feet per minute,

         13   typically that you see through a seal,

         14   that would be very helpful to us.

         15   Especially, in your coal that's more

         16   prime than other coal and is rated a

         17   little higher than average.  The other

         18   question was on the -- you mentioned

         19   about samplings for CO2.

         20             And I'd appreciate, we would

         21   appreciate if what your thoughts would

         22   be on how we could actually tie that

         23   in to the rule and sampling.  I mean

                                                 76





          1   methane and oxygen is a straight mix,

          2   we're all familiar with how to deal

          3   with that.

          4             But how would you -- what's

          5   your suggestions on dealing with if

          6   CO2 is a factor that affects the

          7   explosibility without going with

          8   Zabetakis curve, and how do you tie

          9   that in or suggest tying that in,

         10   would be appreciated.

         11             MR. MCNIDER:  One way, John,

         12   and I did this.  It's in the comments

         13   that I gave you today, and it's

         14   something that could be done.  The

         15   primary gas in most sealed areas and

         16   low oxidation is CO2, methane, oxygen,

         17   and nitrogen.

         18             So, if those are the

         19   components that equal 100 percent, and

         20   it's not going to be exact.  I mean,

         21   because you are going to have a few

         22   DPM of CO, and you're going to have

         23   some of eventually maybe nitrogen.

                                                 77





          1             But, like, I said, that's

          2   one of our pristine gases when you

          3   seal it.  But you could get an

          4   extremely -- MSHA could get a very

          5   good guide even that you could do at

          6   the mine level.  And there's probably

          7   other ways I haven't really thought

          8   about that you could calculate its

          9   flexibility.

         10             But one way and I think it

         11   was like page 5, it's in my --

         12   verbally in the comments.  You could

         13   go through there and take those gases

         14   and come through and you could do the

         15   Zabetakis based on a hand reading, but

         16   you need CO2.  And it's important that

         17   MSHA gets an instrument that we can

         18   measure CO2 with.

         19             CO2 is a critical factor in

         20   this.  In my opinion, you've got to

         21   consider CO2, you can't leave it out.

         22   I think you would agree to that.  If

         23   you just look at methane and oxygen on

                                                 78





          1   their own, it's badly misleading.  So,

          2   that's one way.  I know today sitting

          3   here I can tell you you can do it that

          4   way as an indicator.  There may be

          5   others, I'd just have to think about

          6   that.

          7             MR. UROSEK:  If you have

          8   anything specific you can supply us on

          9   that, we would appreciate it.

         10             MS. SILVEY:  One of my panel

         11   members wrote me a note and said that,

         12   Tom, you were busy writing down some

         13   of the questions we asked you.  But

         14   I'll remind everybody that the

         15   transcript is going to be on the

         16   website about a week after today.

         17             But even as I remind you of

         18   that, I would say to you, Tom, but the

         19   comment period closes August 17, so,

         20   you probably want to get on your

         21   questions anyway.  So, it's probably a

         22   good thing that you're writing them

         23   down anyway.

                                                 79





          1             MR. UROSEK:  I know we've

          2   asked Tom a lot of specific questions

          3   because he's the one at the panel at

          4   the moment.  But if anyone has any

          5   information on a lot of the questions

          6   that we asked that they can help us

          7   with, we'd appreciate that

          8   information.

          9             MS. SILVEY:  The transcript

         10   will be on the web approximately one

         11   week after today's hearing.  So, it

         12   should be on there at approximately

         13   next Thursday.  And I think that's

         14   July 26th I think.

         15             I think those are all the

         16   questions that we have, Mr. McNider.

         17   So, thank you very much.  Again, we

         18   appreciate your comments and your

         19   testimony.  And we look forward to

         20   getting supplemental comments from you

         21   by time the record closes on August

         22   17.

         23             MR. MCNIDER:  Well, I

                                                 80





          1   appreciate the opportunity to address

          2   the panel today.  So, I appreciate it.

          3             MS. SILVEY:  Thank you.  At

          4   this point, I would ask if there is

          5   anybody else who wishes to make

          6   comments, you can be start getting

          7   yourself ready.  We will take anybody

          8   else who wishes to make comments or

          9   testimony.  Anybody else?  Okay.

         10   Nobody.

         11             Well, if nobody else wishes

         12   to make comment or provide testimony,

         13   then I want to say that on behalf of

         14   the Labor Department, we appreciate

         15   your participation in this ruling.

         16   And I do want to point out that for

         17   those of you who came but did not

         18   provide comment or testimony, we

         19   appreciate the fact that you're here

         20   and the fact that you're here is

         21   evidence to us that you have an

         22   interest in this rule making and

         23   that's important to us too.

                                                 81





          1             I want to say again for the

          2   benefit of everybody that the record

          3   will close on August 17th.  We

          4   encourage you to either supplement any

          5   information that you provided to us so

          6   far or to make sure if you have

          7   anything to say to us, to get that in

          8   to us in Arlington before August 17th.

          9             And as you've heard me say

         10   too many times, when you provide your

         11   comments, you heard us asking and

         12   encouraging Mr. McNider and others who

         13   have testified before, please, be as

         14   specific as possible as you can.

         15             When you provide your

         16   conclusions to us, things that are

         17   complications in the rules, things

         18   that are difficulties, tell us exactly

         19   where the complications are, where the

         20   difficulties are.

         21             If you have suggestions for

         22   how we might sample differently,

         23   please, provide specific alternatives

                                                 82





          1   if you have those, specific language.

          2   That will help us to as we move

          3   forward and craft the final rule.

          4             If nobody else wishing to

          5   testify then, I'm going to attentively

          6   draw this hearing to a close.  And

          7   what that means is; however, that we

          8   will be here until approximately 1:00

          9   o'clock in case somebody else shows

         10   up.  If nobody else shows up, then, I

         11   will not reconvene the hearing, and we

         12   will consider it closed at this point.

         13             And, obviously, if somebody

         14   else shows up, we will take that

         15   testimony.  But at this time, the

         16   hearing is closed.  Thank you.

         17

         18

         19

         20

         21

         22

         23