In the Matter of:              ) 
                               ) 
PUBLIC HEARING ON MSHA'S       ) 
EMERGENCY TEMPORARY STANDARD   ) 
FOR EMERGENCY MINE EVACUATIONS ) 
Pages:     1 through 137
Place:     Charleston, West Virginia
Date:      May 9, 2006
DEPARTMENT OF LABOR
Mine Safety and Health Administration
In the Matter of:              ) 
                               ) 
PUBLIC HEARING ON MSHA'S       ) 
EMERGENCY TEMPORARY STANDARD   ) 
FOR EMERGENCY MINE EVACUATIONS ) 
                           Marriott Town Center
                           200 Lee Street East
                           Charleston, West Virginia 
 
                           Tuesday,
                           May 9, 2006 
      The hearing in the above-entitled matter was convened, 
pursuant to Notice, at 9:05 a.m. 
BEFORE: Edward Sexauer, 
        Moderator 
APPEARANCES: 
	DEBRA JANES
	RON FORD
	ROBERT SNASHALL
	JEFFERY KRAVITZ
	EDWARD SEXAUER
	ERIC SHERER
	TIM MACLEOD
	KEN SPROUL
APPEARANCES (CONT'D)
SPEAKERS: 
		
		RON BOWERSOX
		MARK COCHRAN
		MIKE WRIGHT
		TONY BUMBICO
		DOUG CONAWAY
		JOHN GALLICK
		MARK ELLIS
		CHRIS BRYAN
		ERWIN CONRAD
		JACK HENRY
		ELIZABETH CHAMBERLIN
		CHRIS HAMILTON
		TIM BAKER
		RICK ABRAHAM
		JAMES SZALANKIEWICZ
P-R-O-C-E-E-D-I-N-G-S
                                        (9:05 a.m.)
		MR. SEXAUER:   Good morning, my name is Edward Sexauer.  I am the Chief of the Regulatory Development Division of the Office of Standards, Regulations, and Variances for the Mine Safety and Health Administration.  I will be the moderator of this public hearing on MSHA's Emergency Temporary Standard for emergency mine evacuations.
		At this moment, would you pause with me for a moment of silence in honor of the miners who lost their lives and who were injured at the Sago Mine explosion and the miners who lost their lives or were injured at the Aracoma Alma Number 1 Mine accident, and for all the miners who have lost their lives or have been injured this year, and for all the miners who have lost their lives and have been injured in this country since the beginning?  So, if you will, pause with me for a moment.  
		(Moment of silence.)
		Thank you.  On behalf of the Secretary of Labor, Elaine Chao and David Dye, Acting Assistant Secretary of Labor for the Mine Safety and Health Administration, I want to welcome all of you here today.  Also attending this public hearing are several individuals from MSHA who are on the committee drafting the rule.  To my left, Eric Sherer, of Coal Mine Safety and Health Division and Chair of the subcommittee.  On my right, Jeff Kravitz, Chief of the Mine Emergency Operations and Special Projects, Pittsburgh Safety and Health Technology Center.  Tom MacLeod, Policy and Program Coordination Division, Educational Policy and Development.  Ken Sproul, Quality Assurance Division, Approval and Certification Center.  Robert Snashall from our Solicitor's Office.  And, Debra Janes, Regulatory Specialist, in the back of the room right now, but she'll be joining us shortly.  And, Ron Ford, Economist, from our office.
		This is the fourth hearing on the emergency standard.  The first hearing was held in Denver, Colorado, on April 24.  The second was held in Lexington, Kentucky, on April 26.  The third was held in Arlington, Virginia, on April 28.  Copies of the Emergency Temporary Standard, the Federal Register notice that rescheduled this hearing from April 11 to May 9, and volumes I and II of the compliance guide are available on the table where you signed in your attendance.
		The purpose of these hearings is to receive information from the public that would help us evaluate the requirements contained in the emergency standard and produce a final rule that promotes safety -- safe and effective evacuation of miners during mine emergencies.  We also will use data and information gained from these hearings to help us craft a rule that responds to the needs and concerns of the mining public so that the provisions of the emergency standard can be implemented in the most effective and appropriate manner.  We published the ETS in response to the grave danger to which miners are exposed during underground coal mine accidents.  The ETS includes requirements in four areas.  The first area, immediate accident notification, is applicable to all underground and surface mines, both coal and metal/nonmetal.  The three other areas covered by the rule, self-contained self-rescuer storage and use, evacuation training, and installation and maintenance of lifelines apply only to underground coal mines.  During these hearings, we are soliciting public input on these issues.  The hearings give manufacturers, mine operators, miners, and their representatives, and other interested parties, an opportunity to present their views on these issues.
		MSHA issued this emergency standard on March 9, 2006, in response to the tragic accidents at the Sago Mine on January 2 and the Aracoma Mine -- Alma No. 1 Mine on January 19.  MSHA determined that better notification, safety, and training standards are necessary to further protect miners when a mine accident takes place.
		The ETS was issued in accordance with section 101(b) of the Federal Mine Safety and Health Act of 1977, the Mine Act.  Under section 101(b), the emergency standard is effective until superseded by a mandatory standard which is to be published no later than nine months after publication of the emergency standard.  The emergency standard also serves as a proposed rule.
		As stated earlier, we will use the information provided by you to help us decide how best to craft the final rule.  In addition to the provisions of the emergency standard, we are also considering the following issues and seek further information from you.  As you address these issues, either in your comments to us today or those you sent to us in Arlington, please be as specific as possible with respect to impact on miner safety and health, mining conditions, and the feasibility of implementation.  
		Some additional issues:
		1.  Should miners have the ability to tether themselves together during escape through smoke-filled environments?  If so, what length of tether between miners should be required?  Should a miner's tether be capable of clipping easily to another's so that any number of miners could be attached together to work their way out of the mine?  How should the tether be attached to the miners' belts, or, should there be a place other than the miners' belts to attach the tether to the miners?  Should the tether be constructed of durable and/or reflective material?  Where should the tether be stored on the section, or could it be part of the miner's belt?  Should it be stored with additional SCSRs in a readily accessible and identifiable location, or in a separate location?
		2.  Should a training record under new paragraph 75.1502(c)(3) not only include a requirement that miners -- mine operators certify, by name, all miners who participated in each emergency evacuation drill, but also include additional information, such as a checklist?  The checklist could be used to itemize the successful completion of each step in the training, as outlined in the approved program of instruction.
		3.  When should a miner don an SCSR during an evacuation?  Currently, miners are told to don an SCSR when they believe they are in danger or when smoke is encountered.  This may leave miners vulnerable to irrespirable air, such as air that contains lethal carbon monoxide levels or low oxygen.  MSHA is considering requiring that at least one miner in a group of miners, and an individual miner when working alone, have at least one multi-gas or air quality detector with them.
		4.  In the preamble to the ETS, we discussed a method to locate additional SCSRs based on a joint MSHA-NIOSH heart rate study.  MSHA solicits comments on whether the heart rate method is the most appropriate method to determine location, whether it is realistic, and any other comments you may have.  What other reliable alternatives exist for determining where to position additional SCSRs in the mine?
		5.  MSHA is considering a requirement that additional SCSRs under new paragraph 75.1714-4(c) be stored in all escapeways in intervals of 5,000 for mines where the escapeway height is above 48 inches, and 2,500 feet for all other mines.  Would such a specification standard be more appropriate than the performance-oriented heart-rate method provided in this ETS?  Regarding such a specification standard, what would be appropriate: a 5,000 and 2,500 foot intervals for heights greater than 48 inches and heights of 48 inches or less, respectively?  Or, some other specific interval?
		6.  Should all underground coal miners be required to use SCSRs exclusively?  If so, is it appropriate to prohibit the use of filter self-rescuers in all underground coal mines?  In addition, MSHA is considering adding a new provision to 75.1714-4 that would allow the use of new SCSR technology to comply with the standard, such as SCSRs that have the ability to provide up to two or more hours of oxygen per unit.  Is such a provision appropriate?
		7.  Manufacturers sometimes lose track of which mines purchased their SCSRs.  When a mine shuts down, the SCSRs are often sold to another mine.  In the past, problems have been discovered with all brands of SCSRs.  MSHA is considering requiring that the following information be reported for each SCSR at each mine:  1) the total number of SCSRs, 2) the manufacturer, 3) the model, 4) the date of manufacture, and 5) the serial number.  Is it appropriate to require mine operators to report to the relevant MSHA District Manager the total number of SCSRs in use at each underground coal mine?  If so, should any additional information be reported?
		8.  Because, in the past, MSHA did not always learn of problems associated with SCSRs, MSHA is considering a requirement that mine operators promptly report to the MSHA District Manager in writing all incidents where any SCSRs required by 75.1714, is used for an accident or emergency, and all instances where such SCSR devices do not function properly.  In addition, where any SCSR device does not function properly, the mine operator would be required to retain the device for at least 90 days for investigation by MSHA.  These requirements would help assure that MSHA is notified of problems in a timely manner so that MSHA can provide timely notice to both manufacturers and users to assure that the affected SCSRs are available for testing and evaluation.  Should MSHA include such requirements in the final rule?
		9.  SCSR storage locations in escapeways may not be readily accessible to all persons underground, such as pumpers, outby crews, and examiners.  Are there other ways to provide readily accessible SCSR coverage for these miners?  Are there other storage locations that would be readily accessible to such persons?
		10.  MSHA sought comments on the appropriateness of requiring that signs to help locate SCSR storage areas be made of a reflective material.  MSHA also asked whether there are alternative methods available for making SCSR storage locations easy to locate when conditions in the mine might obscure the storage location.  What methods exist that would make SCSR storage locations readily visible?
		11.  Under new paragraph 75.1714-4(c), operators are required to have separate SCSR storage in each escapeway.  Where a mine has parallel and adjacent escapeways, under what circumstances would it be appropriate to allow a hardened room or "safe haven" to serve both escapeways with one set of SCSRs?  A hardened room is a room constructed with permanent seal techniques, submarine-type doors opening to both escapeways, and positive ventilation from the surface through a borehole.  Is a safe haven an acceptable alternative?  If so, what should be the minimum criteria for MSHA to accept a hardened room or safe haven?
		12.  Currently, cone systems on lifelines -- this is number 12.  Cone systems of lifelines vary, some with the cones pointing toward the face, and others pointing away from the face.  Miners may become confused in an emergency as to the direction of escape.  Should cones or other directional indicators on lifelines be standardized?  Following a NIOSH recommendation and for ease of movement, should the point end of the cone be toward the face?
		13.  Miners should be able to safely evacuate a mine without the use of mechanized transportation.  There may be unique escapeway conditions, including ladders, mandoors, airlocks, and overcasts where hands-on experience of these conditions is required in order to quickly and safely escape the mine.  Is it reasonable to require that miners walk the escapeways at least under these unique escapeway conditions?  Should all miners be required to walk the escapeway in it's entirety rather than use mechanized transportation during the drills required by new paragraph 75.1502(c)?  We are considering including a requirement in the part 48 training program for new miners that new miners travel, at least in part, both escapeways.  Would this training be appropriate, and should the training include walking out part or all of the escapeways?
		14.  A more instructive emergency evacuation practice may be provided by using realistic drills.  For example, conducting a drill in smoke or using a realistic mouthpiece that provides the user with a sensation of actually breathing through an SCSR, commonly referred to as "expectations" training, are more realistic than simulation training.  What other realistic emergency evacuation practices and scenarios would ensure that miners are better prepared to act quickly and safely in an emergency?
		We intend that scenarios required by the Approved Program of Instruction under paragraph 75.1502(a) be used to initiate the drills and to conduct the mine emergency evacuation drills required by paragraph 75.1502(c).  For example, to start a drill, the section foreman may chose one of the mines' approved explosion scenarios.  The foreman would gather the miners on the section and state where the explosion occurred, any special circumstances of the event, and conditions requiring immediate donning of SCSRs.  The foreman and miners would then physically follow the best options for evacuation as the evacuate the mine.  When the miners travel to the place or into the conditions that require immediate SCSR donning, the need to don the SCSR must be made clear so that it is understood by all.
		15.  We expect that the scenarios developed as part of the mine emergency and firefighting program of instruction under new paragraph 75.1502(c) would be included as part of the emergency evacuation drills under new paragraph 75.1502(c), making the drills more realistic.  Should we further clarify this issue in the final rule?  Are there additional requirements that should be included in this training to make it more realistic, such as conducting SCSR donning in a smoke-filled environment?
		16.  We are considering putting all emergency evacuation drill requirements in 75.1502.  Thus, for example, the escapeway drill requirements under existing 75.383 pertaining to the frequency of drills, how far miners travel in the drills, and the number of miners involved in each drill, would be incorporated into requirements under new 75.1502.  Under paragraph 75.383(b)(1) each miner must participate in a "practice escapeway drill" at least once every 90 days, but it is only required to travel to the area where the split of air ventilating the working section intersects a main course -- main air course, or 2,000 feet outby the section loading point, whichever distance is greater.  Under new 75.1502, during the emergency evacuation drills, the miner must travel to the surface or to the exits at the bottom of the shaft or slope.  Existing paragraphs 75.383(b)(2) and (b)(3) require that "practice escape drills" occur at least once every six weeks, but only involve two miners and a supervisor.  Miners systematically rotate in taking these drills so that eventually, all miners participate.  Under new 75.1502, emergency evacuation drills are required for all miners and at periods of time not to exceed 90 days.  We will have to reconcile these time differences.
		MSHA is requesting comments on incorporating all evacuation drill requirements into 75.1502.  we also are considering requiring section bosses to travel both escapeways in their entirety prior to acting as a boss on any working section or at any location where mechanized mining equipment is being installed or removed.
		17.  We are -- also are considering requiring that all mine fires be reported to MSHA, including fires shorter than 30 minutes duration.  This would address all mine fire hazards, including situations where a number of short duration fires occur.  Should the definition for "accident" in existing paragraph 50.2(h)(6) be revised to include all unplanned underground mine fires, or fires of a particular type or duration, or occurrences at particular locations in the mine?
		To date, we have received two comments on this emergency standard.  You can view these comments on our website at www.msha.gov under the section entitled "rules and regulations."  We have also answered several questions on compliance with the ETS covering a range of issues.  These questions and answers are included in the compliance guide that I referred to earlier and are posted on our web page.
		Finally, we have received questions as to whether the emergency evacuation training provisions for metal and nonmetal mines are affected by the ETS.  While the ETS amends part 48 by adding references to the requirements to the emergency evacuation plans in existing 57.11053 for underground metal and nonmetal mines, these references do not affect existing training requirements for metal and nonmetal miners and it is our intent not to change the existing part 48 emergency evacuation training provisions for metal and nonmetal mines.  We will clarify this in the final rule.
		The format for this public hearing will be as follows:
		Formal rules of evidence do not apply, and this hearing will be conducted in an informal manner.
		Those of you who have notified MSHA in advance of your intent to speak or who have signed up today to speak will make your presentations first.  After all scheduled speakers have finished, others can request to speak.
		We also have an attendance list and ask that you make sure that you sign it before you leave, if you haven't done so.
		If you wish to present any written statements or information today, please clearly identify your material.  When you give it to me, I will identify the material by the title as submitted.  You may also submit comments following this public hearing.  To be considered, they must be submitted to MSHA by May 30, 2006, which is the close of the comment period.  Comments may be submitted by any of the foll -- any of the methods identified in the ETS.  Again, we have copies of the ETS and the compliance guide in the back of the room and posted on our web page at www.msha.gov.
		We will post the transcripts of the public hearings on our website.  I believe that three -- the transcripts of the three previous hearings are already posted on our website.  Each transcript, including this one, will be posted approximately one week from the completion of the hearing.  The transcript will include the full text of the opening statement and any specific issues for which the Agency seeks additional comment.
		We will begin with persons who have requested to speak.  Please begin by clearly stating your name and organization for the record, to make certain we obtain an accurate record when you speak.
		Our first speakers -- I believe we have two speakers that are going to speak together.  Ron Bowersox, from the United Mine Workers of America, and Mark Cochran, also of the United Mine Workers of America.
		MR. BOWERSOX:  Good morning.
		MR. SEXAUER:  Good morning.
		MR. BOWERSOX:  Can you hear me okay?
		My name is Ron Bowersox.  I'm a safety representative with the United Mine Workers of America.  I'd like to take the opportunity to thank the panel for me to speak here in regards to the Emergency Temporary Standards.  		I do believe there would be more participation from the mines, living in the Northern -- like, Western Washington, PA area, the Northern mines in West Virginia, PA, and Ohio.  Those miners would be a lot easier to get to that area, because that is a long distance to travel with the long schedules those guys work now.
		After receiving the final review and reading it, it's clear there are issues that have existed for over 20-plus years.  Examples from the Register, 1984, 27 miners lost their lives in a fire at the Wilberg Mine.  1990, 18 miners escaped from a fire at the Matthews Mine.  Only seven miners donned their SCSRs at their first sign of smoke.  1998, two miners, during the escape from the Willow Creek Mine fire, miners that used the SCSRs had difficulty starting the oxygen flow.  Bottom line, 20-plus years later, we're sitting here in Charleston, West Virginia, discussing the things that should have already been taken care of.
		I would like -- I would hope the Mine Safety and Health Administration acts quickly and takes action that protects miners when they must evacuate a mine after an emergency occurs.  
		I have concerns about the current practice of permitting mine fires that last less than 30 minutes to go unreported.  This should be eliminated.  Far too often, such events occur over and over because once a fire is extinguished within 30 minutes, the operator is not compelled to eliminate the source of the problem.  This reporting, I feel, with all mine fires, will eliminate many of these hazards in the industry.
		I believe the 15-minute notification must be strictly enforced.  Two hours, like at the Sago Mine, is unacceptable.  Fast notification, the faster response time to mine site for mine rescue teams, federal, state, union, and any others involved in mine rescue.  Timing is everything in a rescue mission.  
		I think lifelines are needed to be -- they need to be flame-resistant.  All cones should be faced toward the face area.  This would be standardized with less confusion.
		The -- in closing, there is a lot of new technology available.  A few weeks ago, I was in Wheeling, West Virginia, and there was over 100 vendors there.  They had communication tracking devices, new chambers, and I just feel we all need to work together to make our mines safer for our miners to return home, and our miners are our most precious resource.  Thank you.
		MR. SEXAUER:  Ron, thank you.
		MR. COCHRAN:  My name is Mark Cochran, United Mine Workers of America Local 9909.  I work at the Loveridge Mine, CONSOL Energy.
		I want to speak a little bit here.  Some of my thoughts are about the same as Ron's here, but the reason -- one thing I have is response time.  The length of time it takes to get chromatograph machines and stuff to mount in sites to analyze air samples, hours can be lost not having machinery readily available to support mine rescue teams.  Many times, the only equipment available is hand-held detectors.  This is not capable of detecting or differentiating between a lot of the mine gasses and hydrocarbons which are given off during a mine fire or explosion.
		Also, I'd like to see seismograph machinery located in areas where they can be put to use quickly and efficiently in the field to aid the search for mine -- trapped miners.  
		I've also heard statements about the 15 minute rule for reporting being too short a time.  I personally feel that this is more than enough time and that it would help to get the people into the -- backup people in as quickly as possible, even in an unknown emergency situation.  If there's a reasonable cause to think there is an emergency, time is of the essence. 
		Also, I've been around a lot of mine rescue teams and stuff, and it is recognized that mine rescue rules change depending on emergency situations at each mines.  Specific guidelines are not always followed but must -- we must protect the rescuer.
		All mines need to have mine rescue teams and some, depending on the amount of workers, could have at least two teams available.  This would or is better to have an employee working at the mines and a mine rescue team that is familiar with their mines.  They know the locations of most areas and the conditions at the mines.  This would save a lot of valuable time.
		Again, speaking of the two hour response time by the teams that are contracted out to the different mines, there's a lot of valuable time lost in emergency situations.  
		It could also prove very valuable to have mine rescue supply stations underground where material could be accessed by the teams as they advance, rather than waiting for supplies from the outside to arrive. 
		Self-contained self-rescuers used in the storage plans to be placed on the sections or long-haulage belt lines or other locations, I feel, should be checked as part of the mine examiner's run.  Along with this, I'd personally like to see dates, times, and initials placed at the different caches and also be recorded in a book on the surface.  This would ensure us that the self-contained self-rescuers are being checked properly and are also stored in their necessary locations.
		And, to speak about part 50, the 30 minute rule, as Ron spoke about here, to me, it is very necessary to bring this -- bring an emergency as a fire out sooner.  A fire that's burning for 30 minutes, at least in the Pittsburgh scene, is totally out of control by the time -- you know, I've been around Loveridge Mines.  We've lost the mines twice up there due to mine fires and got it back up and everything, but 30 minutes is just entirely too long to report a mine fire.
		And also, speaking about the rescue chambers.  It could be beneficial in some circumstances, such as at the Sago Mines.  From this disaster, we can all say that there must be an air supply that would sustain oxygen for a long period of time, at least a 48 to 60 hour minimum.  This would need to be also large enough to support a section crew and located where they could be readily available.  
		Also, there needs to be the thought of the outby workers who may also be trapped in -- on the beltlines, and et cetera.  Thank you.
		MR. SEXAUER:  Let me just reiterate the Agency's position that during a mine emergency, the first response to be to evacuate the mine.  You're addressing mine rescue chambers, and, you know, that barricading in the mine would be the last resort and defense.  That's the way we look at it.
		MR. COCHRAN:  I agree with you 100 percent on that.  I was in the Sago Mines, part of the investigation, and that would be a very last resort.  I don't know that I would ever barricade, personally.
		MR. SEXAUER:  Okay.  Any questions?  Gentlemen, thank you.
		Are we picking up the sound from that second mic?  Can you hear in the back?  You can?  Okay.
		Our next speaker will be Mike Wright.
		MR. WRIGHT:  Thank you, Mr. Sexauer.
		My name is Mike Wright.  I'm the Director of Health, Safety, and Environment for the United Steel Workers.  We're a union that represents 850,000 workers in North America, including the majority of unionized metal and nonmetal miners in the United States and Canada.  We also represent a significant number of coal miners in Canada.
		And, as I was walking over here this morning, I remembered that today is the 14th anniversary of the worst mining disaster in recent Canadian history, that was the underground explosion and fire at the Westray Mine in Nova Scotia, which killed 26 miners.  We were in the middle of an organizing campaign when that happened, and we continued that campaign, even though the mine never reopened, and continued to represent those families.  One of the things that came out of that disaster was a law across all of Canada making killing through corporate negligence a crime punishable by prison.  I hope we can achieve that, some day, in this country.
		This hearing is focused exclusively on coal mine safety and health, and that's appropriate.  I'm sorry, almost exclusively on coal mine safety and health, and that's appropriate, given the tragedies of Sago and other coal mines so far this year.  Our union doesn't represent coal mines in the United States -- coal miners.  You might ask why I'm here.  It's really for three reasons:  the first is to demonstrate our support for the families of the Sago miners and all the other victims and for our sister union, indeed, our parent union, the United Mine Workers of America; second, to strongly support the one part of the ETS that applies to metal and nonmetal mines, the requirement that MSHA be notified of accidents within 15 minutes; third, to urge MSHA not to forget about metal and nonmetal miners as it moves forward to develop, hopefully, stronger requirements for mine evacuations, rescue, and refuge.
		Let me start with the immediate notification of mine accidents.  I've been involved in too many rulemakings, both OSHA and MSHA, to be very surprised about arguments coming from mine operators or other employers, but I must say they had to reach to come up with objections to the 15 minute rule.  I've read a lot of those in the transcript.  
		They include things like "calling MSHA might interfere with a rescue."  Well, you'd better look at your rescue plan if it's going to be disrupted by having to make a single phone call.  Or, "there may be only one phone line and we need it to call 911."  Well, if that's the case, buy yourself a cell phone or a Blackberry or use the one you probably already have, like the majority of Americans.  And, if you don't get a good signal where you are, I'm sure your local service provider will be happy to install a second line.  Or, "we're really not sure there's been an accident until we investigate."  Well, call anyway.  You're not going to get cited by MSHA because the situation turned out to be less serious than you originally thought.  
		In short, the 15 minute rule makes very good sense, and MSHA should stick to it in the final rule.  And, by the way, the miners' rep ought to be immediately notified as well, and the regulation ought to state that explicitly.
		I do have to congratulate MSHA for the fact that it appears to be enforcing the 15 minute rule.  We had a fire at the Carmeuse Limestone Mine in, I believe, Kentucky, back on April 10, and that mine was cited under part 50 section 10 because they did not notify the Agency in the prescribed time limit.
		Let me now turn to other aspects of this ETS and other regulations that should be applied, not just in coal mines, but in all underground mines, but I want to make it clear that nothing the USW proposes is meant to delay effective action in coal mines.  We are aware that MSHA would need additional rulemaking to extend other provisions of the ETS beyond coal, therefore, we urge the Agency to finalize this rule as quickly as possible.  You can take less than the nine month statutory limit.  That would be great.  And then, turn it's attention to metal/nonmetal mines as part of a comprehensive regulatory process involving escape, rescue, and refuge in all underground mines.
		Most of the deaths this year have occurred in coal mines, and the ETS is especially concerned with coal mine fires, but we should remember that the worst mining disaster in the United States in the last 35 years happened in an underground metal mine and it was a fire.  Of course, the fire was at the Sunshine Silver Mine in Kellogg, Idaho, on May 2, 1972.  Ninety-one miners died, all from carbon monoxide poisoning.  Incidentally, those miners had filter self-rescuers.  They didn't work.  They were exposed to too much carbon monoxide.
		Sunshine was one factor leading to the Mine Safety and Health Act itself, and many of the regulations promulgated under the Mine Safety and Health Act have made such fires far less likely.  But, 45 percent of the mine fires reported to MSHA between 1991 and 2000 occurred in metal/nonmetal mines.  There are plenty of combustible materials in metal/nonmetal mines.  Fuels for mobile equipment and mobile equipment itself, old timers, belts, methane, combustible ores like gilsonite, and other materials.  A January fire in a Saskatchewan potash mine forced 72 miners into a refuge chamber for 28 hours because of toxic gasses and smoke started in some plastic piping.  Potash, as you know, doesn't burn.  There are plenty of ignition sources, as well.  Electrical sparking, belt friction, cutting and welding, even spontaneous combustion.  And, of course, there are reasons other than a fire for evacuating a mine, including, for example, flooding.
		There is no good reasons why the lifelines required for underground coal mines should not also be required in metal/nonmetal mines, and there is certainly no good reason not to even give notice on this issue in the Federal Register and thereby making it impossible for MSHA to require lifelines without -- in metal/nonmetal mines without new rulemaking.
		Obviously, the provisions for extra self-contained self-rescuers will not apply because SCSRs are not required in metal/nonmetal mines in the first place; however, they should be required in at least some metal/nonmetal mines.  There was a proposal to do that on MSHA's regulatory agenda in 2001.  SCSRs would have been required in high-risk mines, specifically, gassy mines, and some others.  That proposal was withdrawn by the current administration.  We believe it should be reinstated immediately.
		That concludes my comments.  Thank you for the opportunity to testify this morning.
		MR. SEXAUER:  Any questions?  Mr. Wright, thank you very much.
		MR. WRIGHT:  Thank you.
		MR. SEXAUER:  Our next speaker will be Tony Bumbico from Arch Coal.
		MR. BUMBICO:  Good morning.
		MR. SEXAUER:  Good morning.
		MR. BUMBICO:  My name is Tony Bumbico.  That's spelled B-U-M-B-I-C-O.  I'm the Vice President of Safety for Arch Coal.
		Arch is the second-largest coal producer in the United States.  Our corporate office is in St. Louis, Missouri.  Arch and it's subsidiary companies have over 3,500 employees and we operate mines in Colorado, Kentucky, Utah, Virginia, West Virginia, and Wyoming.  With me is Doug Conaway.  Doug is the Corporate Safety Director for Arch.  
		We're here today in response to the Mine Safety and Health Administrations request for comments on the Emergency Temporary Standard published on March 9, 2006, which contains regulations relevant to mine emergency evacuation.  Our comments will be offered in two parts.  I will discuss Arch's general position on the ETS.  Following my comments, Doug will respond to some of the specific questions posed by MSHA in their opening comments.
		Our comments today reflect support by Arch of the testimony presented by the National Mining Association at the April 28, 2006, hearing held in Arlington, Virginia.  In addition, our testimony will express concerns that are specific to our operations.  We appreciate the opportunity to comment and hope that our comments will assist MSHA in future decisions related to the subject.
		Arch supports the intent of the ETS.  The objective of this regulatory initiative is to protect miners from grave dangers they face when they must evacuate a mine after an emergency occurs.  Similar to other responsible operators, we are committed to continuously improving health and safety at our mines.  
		In particular, we support the Agency's overall efforts to address several key issues related to self-escape and aided rescue that were factors at the Sago and Alma tragedies.  We extend our sympathies to the families of the Sago and Alma miners and the other miners who have lost their lives this year.  
		As a company, Arch is committed to learn from these events.  We continue to emphasize to our employees that self-escape is preferable to barricading when confronted with an emergency.  In addition, we stand ready to work with MSHA and other responsible parties to improve the ability of miners to escape when a disaster occurs.  
		Our initial comments are on training, part 48.  In general, Arch supports the revised part 48 training requirements.  In this area, we have two concerns.  
		The first relates to how these training requirements apply to visitors of mines, mines, in particular, that have multiple types of self-contained self-rescuers.  In our opinion, requiring visitors who are unfamiliar with mining to don multiple SCSR units could prove confusing.  We encourage MSHA to consider a more flexible approach in this area.  Such an approach might focus on donning the principal SCSR unit assigned to the visitor, and using alternative types of training on supplemental SCSR units.  An approach of this type might prove to be less confusing to visitors.
		We have a similar concern with regard to SCSR training for certain types of independent contractors.  As you're aware, some contractors are exposed to mine hazards on a regular and continuing basis.  We feel that contractors in this category should receive the same type of SCSR training as miners.  On the other hand, many contractors are only exposed to mine hazards on an infrequent and intermittent basis.  In our opinion, contractors in this category should receive a level of SCSR training similar to the training provided to visitors.  We encourage MSHA to consider these SCSR training concerns when drafting the final rule.
		Notification, part 50.  The accident reporting revisions incorporated in the ETS are intended to facilitate rapid response by MSHA to serious mining accidents.  Arch strongly supports this objective.  We agree with the need to notify MSHA promptly to assist mine operators in dealing with mine emergencies.  When accidents occur that threaten the safety of coal miners, a rapid emergency response is appropriate and essential.  
		In life threatening situations, or situations requiring potential rescue and recovery response, it is essential to immediately dispatch emergency resources to the accident scene.  While we agree with the intent of the ETS, we maintain that many of the immediately reportable accidents requiring 15 minute notification do not justify a rapid response.  As a result, we recommend the development of a rapid response notification system that requires notification of response proportional to the nature of the accident.  
		The ETS requires that all immediately reportable accidents that occur on mine property, as defined by 30 CFR 50.2 be reported by the mine operator to MSHA within 15 minutes.  Clearly, many of the events defined as immediately reportable should require a mine operator to notify MSHA within the prescribed 15 minutes.  We contend, however, that each event must be evaluated on it's own merits.  It makes no sense to contact MSHA within 15 minutes when the health and safety of miners is not at risk.
		In 2005, MSHA was notified of approximately 2,400 immediately reportable accidents.  Approximately 90 percent of these 2,400 incidents did not involve an injury to a miner.  They involved accidents in two categories, unplanned roof falls at or above the anchorage point and damage to hoisting equipment that interferes with it's use for more than 30 minutes.
		Currently, MSHA documents the fact that they were notified of accidents that fall in these two categories.  An MSHA inspector may visit the mine site to conduct a follow-up investigation into these nonemergency events.  The Agency follows up according to the seriousness of the accident reported.  If an inspector does conduct a follow-up inspection related to these non-life threatening types of accidents that may occur a day or two after the accident is reported, it would be counterproductive to contact MSHA within the required 15 minute time frame for these nonemergency events.  It is not necessary to activate mine rescue personnel and local emergency response resources for all immediately-reportable accidents.  Early notification and rapid response should be in proportion to the seriousness of the accident.
		In our opinion, immediately reportable accident trends indicate that no benefit will be derived from early notification or rapid response for these types of non-emergency, non-injury events.  The 15 minute notification period required by the ETS should be reserved for fatalities, serious injuries, and accidents with the potential to require a mine rescue or recovery response.
		The ETS is solely focused on the 15 minute notification requirement following an immediately reportable accident.  What the ETS fails to address is how MSHA will receive and responds to these notification calls.  We are concerned that this omission will result in a system that unnecessarily delays effective emergency response.
		The current protocol requires a mine operator to call their MSHA district office when an immediately-reportable accident occurs.  If that call is placed outside of business hours, the caller is forwarded to an answering service.  The answering service provides the mine operator with numbers to call to personally reach MSHA district officials.  If the caller can't reach one of these individuals, he or she is expected to contact the MSHA headquarters.  
		The MSHA notification protocol has built-in time delays.  It requires mine operators to place multiple calls at a time when they should be focusing on responding to the emergency event.  MSHA needs to eliminate their system of transferring calls and using answering machines to advise callers of other emergency response numbers.  
		In an emergency, each additional call that a mine operator has to make consumes precious time.  MSHA should consider streamlining the process.
		One method of making this system more efficient would be for MSHA to implement a protocol requiring operators to make a single call to an 800 number to notify the Agency of an accident.  As an alternative, MSHA could consider a system in which each MSHA district would provide mine operators with a list of emergency contact numbers.  In addition, MSHA could assign staff to be on call to receive emergency calls.  
		A mine operator should only be required to place one call to a designated person when an emergency occurs.  That individual should have the ability to determine the severity of the situation and the authority to direct an appropriate response.  A notification system of this type would eliminate the built-in delays created by the current accident reporting protocol.
		Part 75.  Similar to the proposed changes in part 50, the revisions proposed under part 75 are intended to address legitimate concerns related to self-escape during a mine emergency.  Arch agrees with many of these concepts contained in part 75 of the ETS.  We're concerned, however, that practical application of some provisions of part 75 may be counterproductive and difficult to achieve.
		Section 75.387(i).  Arch supports the use of lifelines in escapeways as a means of facilitating self-escape.  Research indicates that lifelines can be a significant aid to miners in an emergency situation, in particular, when they encounter smoke -- a smoke-filled environment.  In fact, Arch's underground mines were using lifelines prior to the effective date of the ETS.
		We have concerns, however, about the practicality of installing lifelines in main travelways.  In some situations, the installation of lifelines in the travel -- in travelways creates a potential hazard.  This is especially true when the mine uses trolley power to power haulage equipment.  We also believe that lifelines installed in the main travelways of mines using diesel equipment will be very difficult to maintain.
		To date, we have not identified an effective method to install lifelines in the main travelways of our underground mines.  In our opinion, there is no good way to install a lifeline in travelways that would be both accessible to miners and protected from heavy equipment.  
		In most instances, miners will use a mantrip or similar vehicle to exit the mine via the travelway in an emergency situation.  In these situations, a lifeline would not be used.  As a result, we recommend that MSHA reconsider it's position on requiring lifelines in escapeways that also serve as the main travelway of an underground mine.  Or, as an alternative, the Agency should assist industry in developing appropriate methods to safely install and maintain lifelines in these areas of the mine.
		75.1502(c)(1).  Arch agrees with most aspects of the fire drill training requirements contained in 75.1502(c)(1).  In particular, we agree with the emphasis on scenario training.  Training of this type will help improve the problem solving and decision making skills of miners that are so critical during a mine emergency.  We recommend, however, that MSHA revise the requirement to conduct fire drill training and mine emergency training every 90 days.  In lieu of the 90 day requirement, we suggest that the training interval be modified to once each quarter.  This change would not impact the quality of training.  It would, however, provide more flexibility to large mines to accomplish the training in a more efficient manner.  Most of Arch's underground mines are large complexes.  Trying to schedule 300 to 500 miners for training on SCSR transfers, escapeway systems, firefighting, and evacuation drills would be difficult to achieve.  We can accomplish this important task more effectively on a quarterly basis.  This added flexibility will enable us to schedule crews for training on a systematic basis.  It would also help to address scheduling complicated by vacations and absenteeism.  If MSHA is concerned that a person would be trained at the end of one quarter and the beginning of the next, the Agency could require that the training be accomplished during a window of time as proposed by the operator's plan.
		75.1502(c)(2).  Arch opposes requiring all miners to walk the entire escapeway every 90 days.  We do not believe that physically traveling the entire escapeway adds to the quality of the training.  In some cases, it may pose a hazard to the miners.  We do believe that miners need to receive additional training on a quarterly basis that covers the location of escapeway entrances from the workplace, the location of lifeline systems, the location of SCSR caches, the unique physical escapeway characteristics, and the location where important escape decisions will be made.  
		As stated during previous hearings on the ETS, MSHA needs to recognize that the coal industry has an aging workforce.  The average age of our workforce is in the early- to mid-50s.  In some circumstances, walking escapeways could pose an unnecessary risk, illness, or injury to these individuals.  
		As a result, Arch recommends that MSHA revise the proposed evacuation drill requirements.  Miners should be permitted to travel their escape routes in vehicles or walk short distances to the ventilation split where self-escape decision making training could be conducted.  In our opinion, this change would enhance training and allow for training on unique escapeway conditions and cover important topics such as the location of lifelines and SCSR caches.
		75.1502(c)(2)(2).  Arch supports the use of hands-on training with respect to donning and transferring SCSR units.  This type of training is effective and necessary to familiarize miners with the proper procedure for utilizing self-contained self-rescuers.  In our opinion, however, SCSR training can be accomplished more effectively in a controlled environment on the surface as opposed to underground.  We support the Agency's recognition of this as reflected in the Emergency Temporary Compliance Guide.  We suggest, however, that the training requirement for transferring SCSR units be modified with respect to operations that have multiple types of SCSR units.  We propose that MSHA consider a training system that permits operators to alternate transfer training for different types of SCSR units on a quarterly basis.  In essence, we're recommending that mines with multiple types of SCSR units be required to train on one type of transfer each quarter.
		75.1714-2 and -4.  With respect to the signage requirement for SCSR caches, Arch feels that the regulatory language is too restrictive.  The term "SCSR" is an industry-wide term.  It is used throughout the ETS.  Section 75.1714(2)(f), however, requires the word "self-rescuer" or "self-rescuers" to be used on storage cache signs.  It serves no useful purpose to require mines with existing SCSR storage location signs to install signs stating "self-rescuer."  We recommend that the Agency reconsider their position and permit the use of the term "SCSR" for storage caches.
		SCSR storage in the primary and alternative escapeway.  Section 75.1714-4(c) requires additional SCSR storage in the primary and alternate escapeway to augment other SCSR requirements of the ETS.  A number of companies have proposed the use of airlocks located between adjacent escapeways for storage of SCSR units.  The use of an airlock has the additional benefit of providing employees with an area isolated from the main air course for the transfer of SCSR units.  It could also be used to store other emergency supplies.  Another alternative proposal would be to build an SCSR storage unit into a stopping to permit stored SCSR units to be accessed from either escapeway.  Both of these proposals make practical sense.  In MSHA's Emergency Temporary Compliance Guide, the Agency rejected this concept.  We remind the agency that section 75.1714-4(c) does not require identical quantities of SCSR units be stored in both the primary and alternate escapeway.  It requires additional units in the primary and alternate escapeway.  The concept outlined above is practical.  It would place supplemental SCSR units in locations that satisfy both primary and alternate escapeway storage.  We are requesting that MSHA reconsider it's position on this subject.
		MSHA also requested comments on the appropriateness of using a hardened room or safe haven for storage of SCSR units.  According to MSHA, a storage room of this type would have positive ventilation from the surface through a borehole.  My colleague, Doug Conaway, will address this question in more detail.  The related issue I wish to address concerns surface rights and the practical means of gaining access to surface areas in order to drill boreholes.  Many operations, particularly in the Western states, are mining under significant cover, which, at times, exceeds 2,000 feet.  The surface rights for many of these mines are controlled by the federal government.  Gaining access to surface areas at these operations to drill boreholes or install communication equipment is not an easy task.  It is a task complicated by regulations, a lack of access roads, rugged terrain, and difficult weather conditions.  If the Agency intends to require the installation of additional boreholes or the installation of communication systems on the surface, they need to consider this factor.  The industry needs a more efficient means of accessing surface rights for emergency response and other safety-related purposes.  MSHA is encouraged to take this factor into consideration when formulating the final rule.
		In closing, I want to thank you for the opportunity to comment on the ETS.  At this point, Mr. Conaway will address some of the specific questions mentioned in the ETS and in the Agency's opening comments, after which, we'll be able to able to respond to questions.
		MR. CONAWAY:  Good morning.  My name is Doug Conaway.  I am the corporate Safety Director for Arch Coal.  I --
		MR. SEXAUER:  Excuse me, Mr. Conaway.  That -- we're going to try another microphone setup, here, and see if this works a little better.
		MR. CONAWAY:  I appreciate the opportunity to comment on the Emergency Temporary Standard published by the Mine Safety and Health Administration on March 9, 2006.  My specific purpose today is to offer testimony on some of the specific questions offered by MSHA relating to the ETS.  MSHA has asked interested parties to respond to specific questions.  I will proceed by stating the question, followed by the response.
		Should miners have the ability to tether themselves together during escape through smoke-filled environment?  Arch does not feel that tethering should be a requirement.  We do feel that miners should have the option to tether and that the necessary equipment to tether should be available to miners.  Miners faced with an emergency situation must have the flexibility to exercise judgment as to the best means for all persons to exit the mine in a safe manner.  Each emergency has a unique set of conditions that must be evaluated prior to evacuating the mine.  We have to rely on the problem solving and decision making skills of the miners in that situation to analyze their circumstances and exercise good judgment.
		Storing a tether rope on a working section at the SCSR storage location would provide miners the option of tethering if they determine a need to link themselves together. It is not necessary to mandate every detail of the tether rope.  This should be a performance-oriented issue.  Any related regulation should specify that the tether be made of durable material of reasonable length and easy to attach.  
		Should a training record under new paragraph (c)(3) of 75.1502 include additional information, such as a checklist?  Arch agrees that developing performance-based checklists that identify self-escape competencies would be a valuable tool to evaluate the proficiency of miners.
		When should a miner don an SCSR during an evacuation?  Should at least one miner in a group of miners or an individual miner working alone have a multi-gas or quality air detector?  Arch feels that a regulation requiring that an individual miner or one miner in a group of miners to carry a multi-gas detector makes common sense.  This would enable miners in an emergency situation to determine with more accuracy when to don an SCSR.  If miners wait until they see the first evidence of smoke, it may be too late.
		Should SCSR storage locations be determined by the performance-oriented NIOSH-MSHA heart rate study, or should specific distances, such as 2,500 and 5,000 feet, depending on seam height, be specified by the regulation?  Arch does not feel that a prescriptive approach to SCSR storage locations is appropriate.  Operators should be permitted to determine where caches are located based on the recommended test in the ETS.  We agree with the general approach outlined in the MSHA-NIOSH heart rate study.  In our opinion, a performance-oriented approach to the location of SCSR storage caches is more appropriate.  Some states have adopted a standard which establishes SCSR storage locations by intervals based on the height of the coal seam.  We also agree that this type of approach to locating SCSR storage caches, a performance-oriented standard of this type is easily understood and implemented.  The travel time necessary to exit a mine varies considerably according to a mine's seam height, other unique physical characteristics, as well as the physical condition of the miners involved in the evacuation.  Locating SCSR storage caches according to preset distances fails to address these variables.  Finally, we agree with the Agency's criteria for approving SCSR storage plans should consider the materially different quantities of available oxygens provided by competing types of SCSR units.  As the Agency is aware, some types of SCSR units are capable of providing emergency air far beyond the one hour rating capacity.
		Should filter SCSR units be prohibited by the regulation?  Arch feels that filter-type rescuers should be permitted under approved storage plans, specifically on long wall faces, where facing -- where space and clearance is very limited.  Filter-type rescuers have historically been proven serviceable.  They provide mine-worthy protection against hazardous levels of carbon monoxide.  While many miners -- mines have voluntarily eliminated filter-type rescuers, operators should still have the option to continue using filter-type rescuers to supplement the one-hour SCSR units required by the ETS.
		Should MSHA add a new provision to 75.1714-4 to allow the use of new SCSR technology that may provide up to two hours or more of oxygen?  Our response to this question is a very straightforward yes.  
		Should MSHA require the following information to be reported for each SCSR at the mine:  One, the number of SCSR units; two, the manufacturer; three, the model; four, the date of the manufacture; and five, the serial number?  This information is already a requirement for mines with SCSR storage plans.  These plans include the number and location of the SCSR units.  If the locations change, the plans have to be updated.  This provision would not require any additional information-gathering for mines with storage plans.  While a requirement of this type would facilitate research-oriented data gathering and enhance potential recall efforts, the Agency first needs to arrive at a mechanism such as a barcode to facilitate data gathering.  Even with a barcode, an additional reporting requirement of this type would be time consuming.  While we agree with the information -- we agree that the information should be available at the mine, we disagree with the need for additional reporting requirements.
		Should MSHA require mine operators to promptly report to the District Manager incidents where the SCSR unit used in an accident or emergency and all incidents where a SCSR malfunctions?  Arch has no objection notifying the Agency when an SCSR unit used in an accident or emergency fails.  We also agree with the need to provide MSHA access to units that failed during emergency use.  We maintain, however, that the Agency should permit operators to participate in any testing and share test results.  We see no value in notifying the Agency when SCSR units are routinely damaged or malfunction, unless there's a pattern of damage indicative of a product defect.
		Are there other ways to provide SCSR storage locations for outby crews, pumpers, and examiners?  If outby crews, pumpers, and examiners are not able to access the section escapeway SCSR storage caches within the allotted timeframe established for their mine, SCSR coverage consideration should be given to them on an individual basis.  Pumpers and examiners are miners that work routinely in the same well-defined area of the mine.  Utilizing the time-distance tables, SCSRs could be placed at the necessary locations to provide adequate coverage.  Outby crews such as belt maintenance, supply personnel, et cetera, require transportation.  These miners could use the SCSRs that are required to be stored on all mantrips that enter and exit the mine.  
		Where a mine has adjacent and parallel escapeways, under what condition should MSHA allow a hardened room or safe haven to be used to store SCSR units for both escapeways?  A hard room is constructed with permanent seal techniques, submarine-type doors that open to both escapeways, and has positive ventilation to the surface.  Based on the language of the ETS, a number of operators have proposed, as an alternative, the use of airlocks located between adjacent escapeways for the storage of SCSR units.  A storage location of this type could also house other important emergency supplies.  The use of an airlock has the additional benefit of providing employees with an area isolated from a main air course for which to transfer SCSR units.  Another alternative proposal is to build an SCSR storage unit into the stopping to permanently store SCSR units to be accessed from either escapeway.  Arch agrees with these concepts.  Both proposals are simple, functional, and can be engineered in a safe, mine-worthy manner.  Arch also maintains that an airlock can be engineered so that SCSR units are readily accessible.  This might be accomplished by installing a larger door in the stoppings.  We do not believe that it is necessary for an SCSR storage location of this type to be a hardened room with submarine doors and a borehole to the surface, as proposed in the Agency's opening comments.
		Should the placement of directional cones be standardized according to NIOSH recommendation?  Arch maintains that the placement of directional cones should be standardized according to the NIOSH recommendation.  Having one standard method of installing directional cones will avoid confusion for miners who transfer from one mine location to another.
		Should miners be required to walk the escapeway in it's entirety rather than use mechanized transportation?  Should miners be required to walk a portion of the escapeway that contains unique characteristics?  As stated in our general comments, Arch disagrees with the need to physically walk the entire escapeway.  Miners can be familiarized with the general and unique characteristics of the escape route if they use mechanized transportation to travel this entry.  We propose that the escapeway drill be devoted to more meaningful scenarios and expectations training in order to improve critical, problem solving, and decision making skills.  
		Should more realistic escape training be considered, such as smoke drills and expectations training, such as breathing through an SCSR?  As stated in response to the previous question, Arch agrees that training of this type would be more meaningful than walking the entire escapeway.
		Should all emergency evacuation drill requirements be included in 75.1502?  we agree that the inclusion of all emergency evacuation drill requirements in one section would help clarify this section.
		Should a new section foreman be required to travel both escapeways prior to acting as a boss on a section?  This is a requirement that makes good practical sense.  All supervisors should be familiar with the escapeway prior to assuming responsibility of working on that section.  Those individuals who are currently supervising and working on a section should be grandfathered.
		Should all mine fires be reported to MSHA, including mines shorter than a 30 minute duration?  Arch maintains there is no compelling evidence justifying a revision in a definition of an immediately reportable fire.  Current regulations require a mine operator to report an unplanned mine fire that is not extinguished within 30 minutes of discovery.  Historically, this 30 minute period has provided mine operators with an adequate period to extinguish and control an unplanned heating event.  To shorten the 30 minute period would result in numerous false alarms.  It would also lead to the inefficient use of emergency response resources.  The existing requirement in this area is clear.  Mine operators understand what types of unplanned fires to report and what circumstance that requires MSHA notification.  While there will always be unique circumstances that require a mine operator to exercise good judgment, changing the current requirement will only result in confusion.  It will also result in numerous unnecessary phone calls.  The current requirement for notifying MSHA of unplanned fires after 30 minutes is effective.  It should not be changed.
		Thank you for the opportunity comment.  We will be available to respond to any questions you may have.
		MR. SEXAUER:  Gentlemen, would you be willing to leave a copy of your written comments with us?  Thank you. 
		Excuse me, I think we have a question or two, here.  I'm sorry.
		MR. SHERER:  Mr. Bumbico and Mr. Conaway, how many of Arch's mines have parallel entries to the haulageways that you were concerned about, as far as lifelines?
		MR. BUMBICO:  A pretty common concerns of all of our underground mines.
		MR. SHERER:  No, I mean, how many of your mines have parallel entries to those haulageways?  Do you just have single haulageway entries that are on a separate split?
		MR. BUMBICO:  Well, a number of our mines in the West are two-entry mines, so we're operating on that type of a system, and I could get you some specific information in writing as to what we have.
		MR. SHERER:  Okay.  There's no requirement that the escapeway be in the haulageway if you have a parallel entry.
		MR. BUMBICO:  We understand that.
		MR. SHERER:  Okay.  Another question, you talk about using airlock doors for the storage of SCSRs.  How would you propose to ventilate those areas?
		MR. CONAWAY:  Well, current airlocks are not ventilated -- I mean, they don't have a separate split of ventilation in the mine environment today, but you could, similar to ventilating a charger of sorts, you could provide some form of ventilation into that airlock.  
		MR. SHERER:  So, you would ventilate it from the primary escapeway to the sec -- to the alternate escapeway?
		MR. CONAWAY:  I'm just saying, right now, initially, Eric, that every airlock in a mine is not on a separate split of air or ventilated.
		MR. SHERER:  Okay.
		MR. MACLEOD:  In your discussion on visitors and hazard training, and possibly some independent contractors who may not be in the mine for a length of time, you talked about an alternate training different than, probably, what other miners would get.  You may not be able to do it now, but could you provide us with some information on what you envision this different training to be, or alternate?
		MR. BUMBICO:  Sure, we'd be happy to.
		MR. MACLEOD:  I appreciate it, thank you.
		MR. KRAVITZ:  I had one question.  If you store SCSRs in an airlock, do you think they'd be substantially protected in an explosion -- in the event of an explosion?
		MR. CONAWAY:  Well, I mean, given any -- you know, multiple scenarios of what may take place, I mean, you have to pick a location and you have to place, you know, the SCSRs strategically in the mine.  Are they going to be protected in all situations?  I -- that -- I mean, that's very difficult to answer.
		MR. FORD:  Mr. Conaway, do all mines owned by Arch have a -- are those mines -- are all those mines on storage plans?
		MR. BUMBICO:  No, they're not.  
		MR. FORD:  Okay.
		MR. BUMBICO:  All of them, with the exception of one of our subsidiaries, has a storage plan.
		MR. FORD:  Okay.  The one that's not on the storage plan, or the ones that are not on the storage plans, do you keep the information that's -- concerning the SCSRs in those mines, such as the total number of SCSRs, manufactures, et cetera?
		MR. BUMBICO:  Yes, we do.
		MR. FORD:  You do?  Okay.  I guess that maybe could clarify, then, your statement that you think that this type of information should only be maintained in those mines which have storage plans, but yet, you seem like you do it in your other mines, also.
		MR. BUMBICO:  Well, also, with the introduction of the ETS, we will have a storage plan at one subsidiary that didn't have one previously, so it's information that we're going to have at all of our locations.
		MR. FORD:  Okay, thank you.
		MR. SEXAUER:  Any more questions?  Gentlemen, thank you.
		I think we'll take a 10 minute break right now.
		(Whereupon, the proceedings in the foregoing matter went off the record for approximately 10 minutes.)
		MR. SEXAUER:   We'll go back on the record.  Next speaker is Mr. John Gallick.
		MR. GALLICK:  My name is John Gallick, G-A-L-L-I-C-K.  I am the Director of Safety for Foundation Coal Corporation.
		Foundation Coal is the fifth largest coal company in the United States with operations in Pennsylvania, West Virginia, Illinois, and Wyoming.  Foundation Coal has a strong interest in this emergency standard.  I will be offering my opinion to the panel on specific issues within these regulations that either need clarified or that the intent of the regulation can be enhanced by changes in the present wording of the emergency regulation.  I will address each segment of the regulation separately.
		One, part 48, training.  In general, I support the revised part 48 standard changes proposed in the emergency standard.  I believe that there should be clarification as to what exactly will be required by an operator when training a non-miner.  Using the definition of "miner" from part 48.2(a)(1), non-miners include visitors and people on the property for a short time frame.  As presently written, the ETS changes only impact miners, yet the preamble discusses requiring hands-on training and SCSR transferring training for visitors.  This issues needs clarified.  Our position is that non-miners visiting the operations can receive adequate training via demonstration or video review of the use of an SCSR.  Any visitor or non-miner is accompanied at all times by an escort.  Visitors depend on these escorts to provide for their safety.  Providing an overview of SCSR training without the detailed training needed for miners is adequate.  To require hands-on training and transferring of the SCSR units for visitors will not enhance safety and will limit the number of visitors tours that mines will agree to accompany.
		Number two, part 50, notification.  The action reporting standard changes under part 50 are clearly intended to facilitate a rapid response by the Agency to serious accidents, particularly, those accidents that require additional resources for rescue and recovery.  This is understandable and I support the attempt by MSHA to assure a rapid and coordinated response for those relatively rare instances.  As written, however, the 15 minute notification requirement includes the entire list of accidents as defined in part 50 as being immediately reportable.  I don't believe that was the original intent of establish a 15 minuet notification requirement.  I believe that this standard would be enhanced by limiting the 15 minute response requirement to those events that require a rapid, coordinated response for rescue and recovery.  That said, if the Agency chooses to require a 15 minute notification for all immediately reportable accidents, I believe that MSHA should provide one district phone number to contact, to contact MSHA, and not a call chain of numbers that has been typically used and is discussed in the preamble as MSHA's plan to receive calls.  I believe that changing the MSHA protocol to providing a one-call number at each district will enhance the operator's ability to provide timely notification to MSHA.  It is important to recognize that a number of other calls need to be made by that operator in the event of an emergency.  By MSHA providing one number to call for notification, the operator can then turn his attention to his other calls and ensure that all the remaining calls required in an emergency can also be timely conducted.  
		I'd also like to comment on the practical effect of the requirement that all accidents listed as immediately reportable must be called into MSHA within 15 minutes.  Prior to this change in the regulation, most incidents were not called in to MSHA by the surface attendant but were called in from someone in management who was notified of the event by that surface attendant.  Generally, the person calling MSHA could answer questions and provide some detail as to the seriousness of the event.  Granted, this was not in the 15 minute time frame, but the additional information and coordination was a benefit to both the operator and MSHA.  In the preamble, the Agency has indicated that the 15 minute period begins after the operator has determined that an accident has occurred.  Further, the Agency has indicated the operator needs to convey sufficient information so that the Agency knows what has happened.  The difficulty is that the period of 15 minutes is far too short to gather any substantive information.  The operator may only know that something that the Agency would consider an accident has occurred without having any details.  Under the 15 minute notification requirement, it is more likely that the call to MSHA will be made by the surface attendant and only a bare minimum of details will be available during this call.  This will just be a reality of the new system, however, it is not the best way to make certain MSHA learns of an accid -- emergency and has enough information to make subsequent decisions.
		Number three, part 75, mandatory safety standards, section 75.3807(i).  In general, I support the changes in the regulations that require the use of lifelines in escapeways.  I think that this standard would be improved if an exemption was included that eliminated lifeline in track entries and in beltlines.  The entries without track or belt structure may need lifelines as a guide for quicker escape.  I believe that this guide is not needed where other structures such as track or belt structure is already available for guidance in escaping.  Further, I believe that lifelines in/around track switches can actually be a detriment to the day-to-day mine safety.  These lifelines fall loose from the roof.  They can be caught by haulage equipment and either pulled down in a domino effect or possibly injure a person in or around the switch area.  I ask the panel to consider these issues when developing the final regulation.
		Lastly, in one of the question and answers provided for this section of the emergency standard, a question were asked about using insulated j-hooks to hang lifeline from mine's high voltage cables.  MSHA's answer was that that was unacceptable.  I respectfully disagree with that answer.  The present regulation concerns only regularly-traveled under emergency-energized high-voltage cables.  Hopefully, the need to travel under the high-voltage cable will never be needed, and any training sessions that can be conducted without traveling on -- can be conducted without traveling under unguarded high-voltage cables.  It is difficult in non-track travelways to assure that the lifeline or other cables will not be hit by mobile equipment.  Placing as many of these cables on one side of the entry minimizes this problem.
		Section 75.1502(a)(1).  I want to reinforce the process under section 75.1502(i)(4), sorry.  We train our employees to fight fires as a first line of defense so we don't have a full-blown mine emergency.  I commend MSHA for acknowledging this fact.  I would ask that MSHA train their local inspectors and field supervisors to support and understand our plans for firefighting.  There have been too many occurrences where fighting -- firefighting has been hindered by 103(k) orders or other orders of withdrawal from firefighting activities.  Many of these orders of withdrawal are made over the phone.  One of my issues concerning the immediate notification process previously discussed is that the mine-level caller may not either have the proper information because of the extremely limited time period for notification or may end up speaking to someone from the Agency who issues a blanket withdrawal order without really knowing what the operator is trying to do to control the emergency.  We believe that MSHA can help in this training by directing local inspectors to become familiar with the mine's firefighting practices.  It is my opinion that a 103(k) order withdrawal should be issued -- should not be issued until the Agency representative has enough details of the situation the operator is confronting and what actions the operator is taking to handle the situation.  Operator evacuation and firefighting plans are designed to address the handling of emergencies.  It is important to allow for these plans to proceed as designed.  I believe that both the operators and Agency want the emergency plan of action that includes firefighting to be enacted and not to be prematurely halted due to miscommunication.
		Section 75.1502(c)(1).  I recognize that the standard interval for fire training -- fire drill training and, subsequently, mine emergency training, has always been "not more than 90 days."  With the addition of more extensive training requirements in the ETS, I recommend that this time frame be modified to "once each quarter."  This change will enable the operator to train more efficiently without any negative effect on the actual training standard.  Large mines will be training over 400 people on SCSR transfers, escapeway systems, firefighting and evacuation drills.  This can all be accomplished quarterly.  By providing timing flexibility, crews can be pulled systematically for training.  If there is a concern that someone might train at the end of one quarter and at the beginning of the next quarter, the rule could be written to provide that the training must be accomplished in a window of time.  For example, the rule can require that training be accomplished in the months of -- in a month during each quarter, for example, January, April, July, and September.  The schedule can be listed in the plan.  We all want whatever training we do to be quality training.  By simply changing the time frames so that we have flexibility in training during a month in each quarter, this quality can be enhanced.  This it not much different than the present interpretation of an annual retraining date, where the due date for retraining is triggered not by the date of that training, but by the month of that training.  
		Section 75.1502(c)(2).  I disagree with the requirement that all people must travel the entire escapeway every 90 days as part of the training requirement.  This is, at best, rote training.  Physically traveling an entry does not train a person on escape.  It would be more logical to train miners on expectation training concerning their escapability in a mine emergency.  Instructing workers on the entrances from their work locations to the escape system, the lifeline systems, SCSR locations, and physical issues in the escapeways, such as areas that are low or more difficult to travel, locations where decisions need to be made such as overcast banks, et cetera, would be better use of training time.  It is more important to train miners on the decision making required in an emergency rather than engage in the drudgery of simply exiting through the escapeway.  
		We need to look no further than Sago to observe the necessity of this.  The Sago miners tried to come out the track and the intake escapeway and were turned back in both cases.  They then decided to barricade.  It's far more useful for miners to use these types of situations as discussion points in training exercises and to understand these type of choices rather than trudging out of the entire escapeway every 90 days.  Additionally, much of the NIOSH studies on escape emergencies discussed the fact that many times, the workers who are escaping have little knowledge of the location, size of a fire.  Again, this is a training issue that can be of more beneficial use than -- working on this, than spending time walking the entire escapeway.
		The second issue with travel of escapeways by all employees is the physical condition of people.  There are a number of employees at mines that will have a difficult time walking the distances of some of the escapeways or the condition of escapeways, such as the travel height.  This does not mean that in an emergency, that these workers can't escape.  That's an entirely different issue.  The question is, should an employee with an arthritic knee be forced to suffer for days after an escapeway walk, or is it more important that he know the escape system?  I recommend that this section be changed to require the operator to provide quarterly training of all employees on escape routes, emergency escape scenarios, SCSR locations, and areas and escape systems where decisions for which direction to escape may need to be made.  It is clear that 75.1500 will now be a major addition to the industry's training requirements.  Let's use this time wisely to make miners better prepared for emergencies, rather than just traveling entries.
		Section 75.1502(c)(2)(ii).  I want to reinforce the position that donning and transfer training on SCSRs can be accomplished more effectively on the surface.  I realize MSHA has stated in the Q&A on the ETS that this is acceptable, but I just want it restated.  I do not object to transfer and donning hands-on training requirements.  I recommend that this be modified, however, so that operations that have multi-types of SCSRs be permitted to train for varied transfer each quarter.  For example, an operation may wear a beltworn unit such as an SR100 and have in storage other SR100s as the additional rescuer.  This operation may also store in caches Ocenco units.  In theory, the worker would transfer SR-100 to SR-100, SR-100 to Ocenco, or SR-100 to Ocenco and then back to SR-100.  I recommend that one type of transfer be required to be trained each quarter.
		75.1714-2 and 75.1714-4, signs.  This may seem a small matter to the panel, but the ETS language requiring specific wording such as "self-rescuer" or "self-rescuers" is much too prescriptive.  Whatever sign verbiage that is chosen by the operation to designate self-rescuer storage should be acceptable.  
		SCSR storages in escapeways.  Section 75.1714-4(c) requires additional self-rescuers in the primary and alternate escapeways to augment other SCSR requirements when length of the escapeway is greater than one hour of travel time.  A number of operations have escapeways in adjacent entries.  Logically, one cache of rescuers properly located in the cross-cut between these entries should suffice for both escapeways.  The Agency has rejected this idea.  I believe the Agency is wrong.  A self-rescuer cache in the cross-cut, properly marked, equipped with escapeway-sized doors as prescribed in the regulations, forming an airlock, does not hinder access to the rescuers or hinder escapability of workers.
		Thank you for the opportunity to speak at this proceeding, and I will answer any questions you may have.
		MR. SEXAUER:  Do you have a question?
		MR. SNASHALL:  The 5010 notification provision has always required that the notification be immediate.  To be clear, are you saying that non-rapid response events do not need to be immediately reported?
		MR. GALLICK:  I guess what I'm really saying is that in non-rapid response emergencies, is it better to have a delay in reporting with details of the event, such as a roof fall with nobody injured or an elevator with nobody on it that is not running, than to make a immediate call with no information and the turmoil that causes?  In the past, frankly, we -- in those kind of events, we always went over the 15 minutes and, you know, but we always -- when we did call, there was detailed information available, you know, and the person calling was somebody who was familiar with the area or somebody from management.  All I'm saying is, if you -- if we -- if you leave all the accident notification -- 15 minutes, please be aware that all we're going to -- all you're going to get is a very, very basic report.  There was a roof fall reported by a fire boss in a return in 3 Left.  No details as to -- will be available to that fellow that he's going to make in 15 minutes, I guarantee it, but he'll know it's a roof fall above the anchorage point, therefore, he only has the 15 minutes to call.  Just accept that.
		The other -- you know, my other point is, obviously, just, you need one phone number.  We don?t need a call chain.
		MR. SEXAUER:  Okay.  Thank you, Mr. Gallick.
		MR. GALLICK:  You're welcome.
		MR. SEXAUER:  Next, we have two speakers together, Chris Bryan and Mark Ellis. 
		MR. ELLIS:  Good morning.
		MR. SEXAUER:  Good morning.
		MR. ELLIS:  I am Mark Ellis, E-L-L-i-S, President of the Industrial Minerals Association North America, or IMA-NA.  With me today is Mr. Chris Bryan, B-R-Y-A-N, Occupational and Safety Health Manager for U.S. Silica Company, a member company of IMA-NA.
		We plan to testify as a two-person and would prefer to respond to questions at the conclusion of our testimony.  Is that acceptable to you, Mr. Chairman?
		MR. SEXAUER:  Yes, it is.
		MR. ELLIS:  The Industrial Minerals Association North America is a trade association representing producers and processors of industrial minerals, as well as equipment manufacturers, railroad and trucking companies, media companies, law firms, and consulting professionals that serve the industrial minerals industry.  IMA-NA's membership currently include companies that mine and/or process all clay, bentonite, borates, feldspar, industrial sand, mica, soda ash, sodium silicate, talc, wollastonite, and other minerals.  These minerals are the industrial feed stocks for the manufacturing and agricultural industries, providing the raw materials for such essential products as glass, ceramics, paints, plastics, metal castings, and fertilizer.  		All IMA-NA producer members operating in the United States are impacted by the Mine Safety and Health Administration's Emergency Temporary Standard on emergency mine evacuation, issued on March 9, 2006, specifically, the provisions of 30 CFR section 50.10 addressing immediate notification of MSHA by mine operators when an accident occurs.  IMA-NA is pleased to testify on the proposed rule on their behalf.
		Requiring that MSHA be notified within 15 minutes of an accident in all cases is impractical and even may be dangerous.  In the event of a mine emergency, mine personnel immediately are engaged in activities designed to save lives and limit harmful effects.  Reasonable and timely notification to MSHA is necessary but not such as it has -- not such that it has the potential to distract mine personnel from lifesaving activities.  Whether such a stringent requirement would endanger or assist an injured miner will depend upon the situation. 
		The former requirement of 30 CFR section 50.10 that "if an accident occurs, an operator shall immediately contact MSHA" could accommodate such situations.  As MSHA notes in the preamble to it's proposal, the Mine Safety and Health Review Commission has observed that "immediately" is a term of common usage and that the application of the former requirement must be evaluated on a case-by-case basis.  We concur.  It is not reasonable to require notification to MSHA within 15 minutes of all accidents occurring, since it could distract mine personnel from actions needed to save lives.  
		MSHA, itself, recognizes that a "bright line" 15 minute immediate notification rule is not appropriate in all circumstances.  The current CFR 50.10 provides that "if communications are lost because of an emergency or other unexpected event, the operator shall notify MSHA at once without delay and within 15 minutes of having access to a telephone or other means of communication."  Should not a similar exception exist for mine personnel engaged in actions to save lives?  We think so and believe that the straightforward requirements for immediate notification contained in the former 30 CFR 50.10 is best suited to address such exceptions.  A performance-based standard is preferable to a specification-based standard.
		I'd now like to turn the microphone over to Mr. Bryan.
		MR. BRYAN:  Thank you, Mark, and good morning.  I'm Chris Bryan, B-R-Y-A-N, Certified Mine Safety Professional, and I'm the Occupational Health and Safety Manager for U.S. Silica Company, a member company of IMA-NA.
		U.S. Silica Company represents more than a century of mining and providing processing experience in industrial minerals.  It has established a standard of excellence in the production of silica and industrial -- other industrial mineral products.  That commitment to excellence extends to providing a safe and healthful workplace for it's employees.  
		IMA-NA does not disagree in concept with the rationale advanced by MSHA in it's support of proposed rule requiring mine operators to immediately notify MSHA of an accident.  Specifically, coordination of appropriate mine rescue and other emergency response, enabling help to arrive sooner at the mine can protect miners from grave dangers of physical injury and death and activation of MSHA's district emergency response plan.
		Operator notification to MSHA in the event of a mine accident is vital to enable the Agency to respond effectively in emergency or potentially life-threatening situations; however, what happens when mine personnel, perhaps, as few as one or two miners, are confronted with an injured miner and as first responders, they are called upon to administer first aid?  Should they cease administering cardiopulmonary resuscitation or applying direct pressure to a bleeding wound, or treating an individual in shock?  We think not.  Again, reasonable and timely notification to MSHA is necessary, but not such that it has a potential to distract mine personnel from life-saving activities.  It is not reasonable to require notification to MSHA within 15 minutes of all accidents occurring because, in some instances, it could distract mine personnel from actions needed to save lives.
		Could other situations exist where it would not be reasonable or appropriate to notify MSHA within 15 minutes of an accident?  Conceivably.  We would all hope -- we would hope that all mine operators would recognize that notification of MSHA of an accident is urgent and must be made a priority; however, we would hope that MSHA would recognize that there are situations that can occur where strict adherence to the 15 minute rule, the 15 minute reporting requirement, could endanger the life of one or more miners.  
		The straightforward requirement of the former 30 CFR 5010 for immediate notification is best suited to address such situations.  As a performance-based standard, it is preferable to the proposed 15 minute specification-based standard.
		Thank you, Mr. Chairman, and members of the panel, for your attention.  Mr. Ellis and I are now available to respond to your questions.
		MR. SEXAUER:  At this point, we have no questions.  Thank you very much.
		Our next speaker will be Jack Henry and another gentleman will be joining him, I think.  If you'll use the microphone in the center.
		MR. CONRAD:  Good morning.
		MR. SEXAUER:  Good morning.
		MR. CONRAD:  Thank the panel -- we thank the panel for your travels and your participation, here, in Charleston, today. 
		The -- we represent Mine Safe House.  It's a limited liability company in West Virginia with affiliation of other international concerns in the research industry and in the carbon industry.
		MR. SEXAUER:  Could I ask you to say your names for the record, please?  I had a little difficulty reading it on the list.
		PARTICIPANT:  We can't hear.
		MR. CONRAD:  My name is Erwin Conrad and with me is Jack Henry.  We represent Mine Safe House LLC.  
		We commend the panel for being here and we also recognize the critical importance of escape.  We believe, as miners underground believe, that escape is the first thing that enters their mind in an emergency.  An escape must be emphasized.  But, we are equally reminded by the haunting words and the letter of Randy McLoy that sometimes, escape is not possible.  And, his words saying that they tried to travel out and they were blocked, to me, that says that they tried to escape, and we've heard other speakers say that they tried in a couple of different ways to escape and were unable to escape.
		Our concern that we would like to address is that the critical SCSRs that are necessary for escape are not being protected adequately.  If you have SCSRs that will be degraded or compromised or exploded in an explosion or a fire, then they should be protected adequately.  If they are to be stored in a plastic container, a wooden box, then certainly, in a mine fire that can reach intensity of 1,900 degrees Fahrenheit or an explosion of 50 to 75 PSI, they're not going to be protected to be available for the miner in the event that they need it.
		We are concerned about that and if there's affordable and safe technology to protect the SCSRs, we would encourage the panel to adopt standards to allow those to be used.  In that connection, as well, when miners are unable to escape, there has been mentioned of safe havens.  It's been called shelters, refuge chambers.  We call it a safe house.  We are concerned that with the experiences of MSHA as noted in the Federal Register of the March 9, 2006, hearings concerning the reported underground fires, 56, I believe, in a 10 year period of 30 degrees or greater duration and the studies by MSHA of the various disasters in the last 50 years, indicating that mine fires will sometimes range to 1,952 degrees Fahrenheit, that explosions have had measured intensity up to 75 PSI, we are concerned with some of the comments indicating that an acceptable level for resistance to fire would be 300 degrees Fahrenheit and an acceptable level to explosion would be 26 PSI for any sort of shelter, chamber, or safe house.  
		We are particularly concerned in that there are materials and prototypes have been built by our company with the wonderful assistance of the Coal Research -- National Coal Research Facility at West Virginia University and two international firms that will resist fires beyond 2,000 degrees Fahrenheit and explosive forces to 75 PSI.  Also, the material does not have the thermal conductivity of steel, which degrades at 850 degrees, and will conduct heat to the inside 460 times greater than Grafoam Safety Foam, which is used in the prototypes that have been developed to respond to Sago and to respond to Alma and other such catastrophes in the past.
		Our concern is that underground, the most important asset is not the continuous miner or any other piece of equipment, it is the coal miner or materials miner, and if we can't provide for their safety, truly, in a safe structure, then all of the other components and all of the other assets that would be utilized to try to help them could be nearly worthless.  If there is safe and affordable technology, then we would encourage you to set standards that would allow that safe and affordable technology to be used.  It does exist, it has been privately tested, it will be submitted to MSHA for testing, and we -- it's our position to encourage you to not either encourage states or, through MSHA, the entire industry to adopt standards that are less than safe for miners underground. 
		We are particularly encouraged by Illinois and other states that have either passed or are considering passage of provisions requiring shelters underground.  Again, we understand that every coal miner wants to escape, but if they can not and if they are to be provided something that's pinpointed so that they can be found in a reasonable period of time, we believe that they're entitled to have breathable air for a sufficient period of time at a minimum 72 hours, not, as some have been reporting, 24 hours, and that they be in a structure that will resist all measured underground fires and explosions that have been experienced in the past.
		That is something that we would encourage you to look at.  We will provide you the test results on the material that is in prototypes that were available for inspection at Wheeling at the wonderful symposium that was sponsored there.  Some of you may have had an opportunity to see one of the two prototypes that were taken to that particular location.
		With that, I'll ask Mr. Henry if he would like to make some remarks.
		MR. HENRY:  Just briefly, again.  I'm Jack Henry, I'm a pastor.  Right quick, you're wondering what in the world is a pastor doing here?  Well, I was once a coal operator and, but, for the last 25 years, I've been in ministry.  
		But, I've been real concerned that we have all this great natural resource wealth but we weren't getting the maximum dollar value that we could be getting by bringing them to their ultimate product that they could become and to make a long story short, I began to study and that's where I first met the chemical engineers and the industrial engineers, the civil engineers at WVU, and gave them my concerns, and I learned that they had been working for many years to try to bring these natural resources to this maximum dollar that they could become.  I learned that they, too, were as interested as I was in creating jobs in West Virginia, and so, with that in mind, the chain led to a major company, Graftech, by name, who is already making some things that had been jointly discovered by WVU, and Graftech, through their research, but long story short, I saw these materials that they had made.  I was able to be there when they tested them, I experienced the fire resistance that they used with the torches and other -- and then, they showed me the testing that they had done.
		It was collision-resistant material, it was explosion-resistant, it was fire-resistant, and the thought that came to our mind was that we ought to be making this into armor protection for military applications, and we began to pursue that, and we were making great headway, but in January, another organization, by the way, that we formed, was called Believe in West Virginia Leadership Foundation, and in that organization, that's how I met Erwin and he became a part of that a couple of years ago with us.
		But, we began to move toward this armor protection, but in January, when the Sago thing happened, one Mr. Conrad's clients had asked him -- had given him his idea about a safe house and Erwin right quick called me and the rest -- we began to work and went back to revisit WVU and these Graftech and others and all of us were on the same page, that we believe that this was kind-of divinely led, that we could make a safe house, and so, for three months, we crammed, we worked, and we traveled, and we brought to pass, and we brought into existence this prototype that we're talking about and we believe that it's portable enough to be moved inside the coal mines, it can be brought up within 200 feet of the men at all times, in a section, a normal section.  It can be adapted to long wall, of course, the structure would be different.  It could be adapted to low-vein mining, low coal, and -- as well as the high coal seams.
		We really believe that had this technology been in existence and been in operation at Sago, that those 12 miners might have walked out, had they had this safety for the 72 hours that we're talking about having.
		So, we're motivated not by any greed but -- by creating jobs, yes, but safety of these men was the highest priority that we have, and so, gentlemen, the things that Mr. Conrad told you are in existence and we would welcome the opportunity to demonstrate them, and we'll -- that's about what I have to say for you.
		MR. SEXAUER:  Gentlemen, thank you very much.
		Let me just reiterate what I said earlier, at the outset, that the Agency's position is that our first response should be to evacuate the mine and that barricading would be the last line of defense for the miners.
		The next speaker on the list is Elizabeth Chamberlin from CONSOL.
		MS. CHAMBERLIN:  Ladies and gentlemen --
		MR. SEXAUER:  Excuse me.  Could we ask you to speak into the larger microphone?
		MS. CHAMBERLIN:  Okay.  Ladies and gentlemen, good morning.  My name is Elizabeth Chamberlin.  I am General Manager of Safety for CONSOL.  I have with me today Todd Moor, who is a Chief Inspector for the Safety Department with CONSOL Energy.  He is also a member of the West Virginia Mine Safety Technology Taskforce.
		CONSOL Energy is a multi-energy producer of coal, gas, and electricity.  We currently have 17 mining complexes located in various states within the United States.
		MR. SEXAUER:  Excuse me, Elizabeth.
		MS. CHAMBERLIN:  Yes?
		MR. SEXAUER:  Would you mind moving the microphone a little closer to you, there?  Thank you.
		MS. CHAMBERLIN:  And, actually, I can speak up, gentlemen.  I've had a long career of having to speak up and make a point, but just keep reminding me.
		All of the CONSOL Energy mining complexes are associated with underground mining operations, with the exception of some mining that's occurring at Mahoning Valley in Eastern Ohio, Mill Creek in -- operations in Eastern Kentucky employs a combination of underground and surface mining methods.  Currently, we are operating in Utah, Kentucky, Virginia, West Virginia, and Pennsylvania.
		CONSOL Energy appreciates the opportunity to comment on the Emergency Temporary Standard on emergency mine evacuation and we hope to offer a few thoughts and recommendations on improvement of the Emergency Temporary Standard.  
		We recognize that the ETS was prompted by the high level of concern for miner safety coming out of the tragic events in the West Virginia mining industry earlier this year and I want to assure the Agency that we support the underlying goals of the ETS fully.
		Some of our comments, I will try not to duplicate comments made by some of the other operators, but we do have common thoughts on many of these processes.  
		CONSOL Energy supports the revised training requirements for miners contained within part 48, but we would like to use the opportunity to comment on two specific areas.
		First, with regard to hazard training, we recommend clearly providing the operators the flexibility to accept form 5023 documentation of applicable, up-to-date SCSR training in lieu of hands-on training for non-mine employees such as visitors, vendors, contractors, and other non-mining personnel.  We support hands-on training for these personnel, we simply do not see the need for redundant training if they have had recent training within the proper time frames.
		The second recommendation deals with 30 CFR parts 48.5(b)(5) and 48.6(b)(5), requirements for emergency evacuation and barricading instructions for new and experienced miners.  CONSOL Energy sincerely believes that this industry must focus it's emergency response efforts first on prevention, second on fire fighting preparedness, and third on evacuation training, in that order.  Given the fact that coal is a fuel source and given the historic evidence of secondary explosions, our employees must be taught, and in CONSOL Energy, are taught that barricading is the avenue of last resort.  We appreciate the Agency's position on this point.
		CONSOL Energy has put these recommendations into practice and has benefitted from strong management and employee support at all levels as a result.  Our efforts are extensive and will be touched upon in greater detail later in our comments.
		Next, let me turn to the 15 minute notification requirement of part 50.   The ETS explains that the purpose of revising part 50 to include a 15 minute notification requirement is to enable the coordination of appropriate mine rescue or other emergency response.  This objective is commendable, however, the part 50 definition of accident appears inappropriately broad for this purpose and may prove counterproductive.  
		As detailed in the NMA comments of April 28, experience has shown us that it is not necessary to activate mine rescue personnel or local emergency response resources in many of the instances that are defined within part 50 as accidents, and as earlier speakers have mentioned, there would be areas such as unplanned roof falls at or above the anchorage point or damage to hoisting equipment that interferes with it's use for more than 30 minutes.
		By requiring the toll-free answering service maintained by MSHA Headquarters, which relies on individuals with no hands-on mining experience, to distinguish whether a call is a true emergency, we believe, sets the stage for false alarms along with the unnecessary mobilization of emergency response personnel.  We are also concerned that the resulting media reporting frenzy that follows such situations will further exacerbate such an error and will also create angst among our families and negative press for the industry as a whole.  
		Therefore, we believe a preferable alternative would be to limit the 15 minute notification that is made to just the emergency call center, to be limited just to accidents that pose a threat to life or ones that require rescue or other emergency response for trapped or injured miners.
		Next, I'd like to turn to the mandatory safety standards under part 75, first with regard to section 75.387(i).  CONSOL Energy supports the Agency's efforts to facilitate evacuation under adverse conditions.  We commend the Agency for drafting section 75.380(d)(7) to permit a lifeline or an equivalent device.  Such an important issue isn't -- is -- with such an important issue, it is important to elevate form over substance.  Recognizing that lifelines in many track entries and belt entries may be ineffective and potentially hazardous, we encourage the Agency to maintain an open mind with regard to any proposals for equivalent devices.  Where lifelines are being used within CONSOL Energy, we are utilizing the Cav (phonetic spelling) lifelines with reflective materials along with cones pointing inby per the NIOSH-recommended convention.
		Our mines are also storing taglines in our SCSR storage boxes.  These taglines are set up in much the same way as the taglines that are used for our mine rescue teams.
		With regard to section 75.1502(a)(1), CONSOL supports the NMA's comments on this section.  The section addresses the procedures for rapid assembly and transportation of necessary miners, fire suppression equipment, and mine rescue apparatus to the scene of the mine emergency.  To prevent full-blown mine emergencies, however, and recognizing that the first few minutes of a fire are critical, CONSOL Energy elects to prepare our employees and expects them to be first responders, and we do this by providing hands-on firefighting training using the resources that are available to our miners at their worksite.  Experience has shown us that this training has given our employees the confidence to efficiently and safely fight a fire when required.  This training is only a portion of our total program of prevention, fire fighting preparedness, and evacuation training.  
		A few examples may be helpful in understanding our commitment and investment in this philosophy.  CONSOL Energy's mining group employs five Fire Prevention Managers who audit and maintain our fire prevention and emergency response preparedness efforts.  Three mobile gas chromatographs and skilled technical personnel are another part of this arsenal.
		At the next level, CONSOL is extremely proud to have developed one large, cohesive, well-equipped mine rescue team approximately 120 employees strong, consisting of members from our 12 major underground mining operations.  These team members are equipped and trained far in excess of any regulatory requirements and participate in mine rescue competitions to further enhance their skills.  Our team, along with many other fine teams, assisted at Sago and Aracoma Alma and we would like to take a minute to commend all of the teams for the dedication and skill that was shown under those difficult circumstances.  
		To assist teams, we have also strategically located at two separate spots storages of or caches of supplies that are necessary, based on our experience, for mine rescue efforts.  We think by doing this that we can expedite our response to any emergency situation that we may encounter within our operations.
		Internally-conducted MERD exercises also forms a part of our program and I will take a moment to thank MSHA and the state mining agencies for their participation in these exercises with special thanks to Virginia DMME, it's Chief, Frank Linkous, and it's staff, particularly, Wayne Davis.
		We commend the Agency, also, for the focus on smoke training.  For some years now, CONSOL Energy has provided training in smoke for our mine rescue teams and in-smoke evacuation training at our mine sites for all of our employees.  We have utilized the services of NIOSH and the West Virginia Extension Service, but we now also own 16 smokers of our own to facilitate training whenever it is needed.
		Finally, I will touch briefly on CONSOL Energy's two communication centers, one of which is dedicated strictly to our coal mining operations.  These communication centers are key components in CONSOL Energy's emergency response process.  they are manned 24/7 by knowledgeable personnel.  They act as comprehensive communications and monitoring hubs for key installations and systems such as fans and CO monitoring systems.  In addition to day-to-day handle -- handling day-to-day communications throughout the company, these centers are also tasked with activating mine rescue teams if needed and making emergency notifications when specifically requested.
		In summation, emergency response preparedness, in our mind, is more than SCSR and evacuation training.  While improving our evacuation capabilities and encouraging the Agency in their efforts in this regard, the industry must also maintain it's primary focus on prevention and fire fighting response.  
		Now, I'd like to turn next to section -- to comments on section 75.1502(c)(1).  CONSOL Energy, here again, adopts the NMA recommendation that the 90-day time frame for training under 75.1502(c)(1) be modified to once each quarter.  This change would enable the operator to train more effectively without any negative effect on the actual training standard.  This is particularly important to CONSOL Energy.  Our large mines will be training 400 to 600 people on SCSR transfers, escapeway systems, fire fighting, and evacuation drills, making flexibility in the timing of this training an important consideration.
		To alleviate any concern of a person being trained at the end of one quarter and at the beginning of the next, however, we would suggest that MSHA could require that the training be accomplished during a window of time.  For example, the rule could require that training be accomplished in a month in each quarter, for example, January, April, July, and September.  This schedule would -- could be listed in the mine plans that are submitted to the Agency for approval.
		Proposed revisions to 75.1502(c)(2) will be my next area of comment.  CONSOL Energy has serious reservations regarding the training requirement mandating all miners travel an entire escapeway every 90 days, and we have concerns our employees will come to view these drills as punishment rather than training when walking rather than riding out of the escapeway is mandated.  A more effective method of training miners on escapeways as commented upon by previous speakers would be the exception training, instructing miners on entrances from their workstations, the location of lifelines and SCSR caches, any significant unusual physical characteristics of the escapeway, and the -- showing the locations where important escape decisions would have to be made. 
		As an example, let's look at a typical CONSOL Energy long-wall section.  Escapeways are at an entry that is generally isolated with a solid pillar at once side and a stopping line on the other side.  Once you are in the escapeway, there is no escape decision to be made until you reached the neck of the section or perhaps even the escape shaft.  Under this circumstances, showing employees the entrance to the escapeway, transporting them by vehicle to the location of the SCSR storage and to decision making junctions would achieve enhanced training and education while still allowing for training on the condition of escapeways and locations of lifelines, and stored SCSRs, where applicable.  
		Using this proposal, quality focus training is achieved, which we feel that this result is less likely under the proposed Emergency Temporary Standards.
		Referring to section 75.1502(c)(2)(2), CONSOL Energy, again, adopts my reference, the NMA comments on SCSR training requirements relating to this section.  CONSOL joins other NMA members in supporting the hands-on training requirement with transferring and donning of SCSRs, however, at sites with multiple -- where multiple units are used, experience indicates that enhanced training would be achieved if we could focus on one specific element during each quarter of training.  
		In addition, this training should be done in the proper training environment, and we would suggest that reality training be done only periodically, as determined by the operator.  For example, in CONSOL Energy mines, our employees will wear Ocenco M-20 units with Ocenco EBA 6.5 devices stored on personnel carriers, in section storage areas, at construction sites, along our belt lines, and at various other key locations, to provide appropriate coverage for our employees.  CSE SR-100 units will -- may be available for specialized uses.
		Under the NMA proposed modification to this provision, the first quarter training might well focus on the transfer from an Ocenco M-20 device to an Ocenco EBA 6.5 device.  The second quarter training may focus on the donning of an SR-100 unit, or the donning of an M-20 unit, or the donning of an EBA 6.5 unit.  
		More comprehensive training may also be considered for part 48 annual refresher training under the type of scenario that we are proposing to you.
		These proposed modifications, in our view, place quality over quantity and places the best interest in the safety of our employees at the forefront.
		Turning next to the revisions to section 75.1714-2 and .1714-4, CONSOL Energy supports the Agency's efforts to enhance the resources available to our employees and others for the safe evacuation from underground coal mines in the event of an emergency.  The industry is committed, and CONSOL is committed, to preventing a repetition of the tragic loss of life suffered at Sago and Aracoma Alma.  In an emergency situation, however, it is critical that the additional storage of SCSRs contemplated by the Emergency Temporary Standard be used for prompt evacuation from the mine.  Again, as we've said before, barricading remains a last resort.
		ETS section 75.17-4(b) provides that if a mantrip or mobile equipment is used to enter or exit the mine, additional one-hour or greater SCSR devices shall be available for all persons who use such transportation.  In contradiction with the plain language of this provision, we have found that various MSHA districts are interpreting this section, and, we believe, misinterpreting this section to require the storage of two SCSRs per employee on the personnel carrier if a one-hour belt-wearable unit is not employed.  Other methods are available, as illustrated by CONSOL Energy's submitted plans which fully comply with the requirements of 17.14-4(b) and with the purposes of that section.
		For this reason, CONSOL takes exception to the more prescriptive district positions.  Our operations have had a generous Ocenco SCSR storage plan for many years.  Under our current plans, our in-mine storage deploys 14 times more units underground than is required by the ETS.  These units, as I mentioned before, are stored strategically throughout the mine.  In addition, under our submitted ETS storage plans, our employees will be provided with belt-wearable Ocenco M-20s that will replace the W-65 chemical units that are currently in use.  This means our employees will always have multiple oxygen units readily available for their use should the need arise.
		Turning to SCSRs in primary and alternate escapeways, that's section 75.1714-4(c), which requires additional SCSR storage in the primary and alternate escapeways to augment other SCSR requirements, where the requirements do not provide enough oxygen for all persons to safely evacuate.  Where the operator determines additional SCSRs are required, the operator must submit a plan setting forth the location, quantity, and type of additional SCSRs, and they may be required by this section, by the district -- under this section, by the District Manager, to demonstrate the plan's adequacy.  Under the plain language of this provision and the preamble, a number of operators, including CONSOL, have proposed, as an alternative, to use airlocks located between the adjacent escapeways for storage of SCSRs along with other important emergency supplies.  The use of an airlock has the additional benefit of providing employees with a space that is somewhat isolated from the main airflow courses for the transfer of SCSR units.  Another alternative proposal would be to build an SCSR storage unit into the stopping to permit storage units to be accessed from either escapeway.
		CONSOL believes both of these proposals are simple, functional, and mine worthy, however, in it's recent guidance documents, the Agency has rejected these proposals, taking a prescriptive position that equal numbers of stored SCSRs required in both escapeways.  I believe that the stated basis for this rejection is speculative and that it encroaches on the -- and that it should be withdrawn.  17.14-4(c) does not require that identical quantities of additional units be stored in both the primary and alternate escapeway.  Instead, this section requires additional units in both escapeways.  Furthermore, the operator's alternatives, as described above, would place the SCSRs in locations that would satisfy both primary and secondary escapeway storage.
		We recommend that the Agency consider a specification standard such as one that has been adopted by various other states which establishes SCSR storage locations at simply based intervals, established on entry height and seam characteristics.  However, a standard along these lines, while easily understood and implemented, we believe, should also recognize the quantity available -- of available oxygen provided by the SCSR unit utilized at the mine and not be limited simply to the rated capacity of the SCSR unit.  
		Finally, the preamble to the Emergency Temporary Standard poses a series of questions.  Most have been, I believe, addressed by CONSOL Energy's testimony.  A few have not, and we will submit supplemental comments, written comments, to the Agency.  We want to touch upon two of the inquiries, however, directly.
		The first one is the question of whether the operator should report details such as serial numbers for SCSRs to the District Manager.  CONSOL shares Arch's view on this position.  The point we would like to make that is, is with the increasingly large number of SCSRs that are being placed underground in all of our mining operations, there needs to be a good reason for this type of data gathering on any increased frequency.  More importantly, the Agency needs to encourage the manufacturers of these devices to incorporate a tracking device, whether it be some type of antenna or barcode into the devices, simplifying the collection of this data.  The technology is available, the encouragement would be appreciated, and it is the direction that CONSOL Energy is attempting to go with the storage of our units.
		The second question we'll address is the question as to whether or not operators should be required to notify the Agency of SCSR failure or use as well as requiring the operator to maintain failed units for 90 days.  We have no objection to notifying the Agency of failed units or providing them with these units subject to the Agency's agreement to allow the operator to participate in any testing of the failed units and subject to the Agency's agreement to share any test results with the operator; however, we see no valid purpose for the Agency to be notified of used or damaged units unless we see a pattern of damage that was -- that is indicative of a product defect.  In other words, we see no use -- we see no good purpose of notifying a unit if an SCSR is run over by a scoop and destroyed.  That's just one example.
		In closing, let me thank you, again, for providing us with the opportunity to comment on this standard.  I would be pleased to respond to any questions you may have.
		MR. SEXAUER:  Ron, you have a question?
		MR. FORD:  Yeah.  You said that in some CONSOL mines, you have more SCSRs than that are required by the ETS rules?  Was that correct?
		MS. CHAMBERLIN:  Yes.
		MR. FORD:  Okay, how many --
		MS. CHAMBERLIN:  And, we are in the process of augmenting our supplies of SCSRs underground currently, and of course, we have differing requirements in the state of West Virginia than we do in our other operations, regulatory requirements, as you are well aware.
		MR. FORD:  Okay.  Do you know what percentage that is where you have more SCSRs in mines than are currently required than the ETS rule?  Is it 90 percent of your underground coal mines, or --
		MS. CHAMBERLIN:  Oh, they would be all of our underground coal mines.
		MR. FORD:  All of them?
		MS. CHAMBERLIN:  Just because of the existing caches that we have and we have already augmented those caches once with our available units and we have orders in which will, again, significantly augment those units.  As I said, our calculations are that it's -- at our mines, it averages 14 times more than what is required by the ETS.
		MR. FORD:  Okay, thank you.
		MR. KRAVITZ:  Elizabeth, as far as the evacuation and smoke training, is that being carried out underground or is that in a surface facility?
		MS. CHAMBERLIN:  Both.
		MR. KRAVITZ:  Okay.
		MS. CHAMBERLIN:  Mine rescue team training is conducted at Lake Lynn.  Underground training is -- for our employees, for evacuation, is conducted underground at the individual coal mines.  We also use the smoke trailer or chamber that the West Virginia Extension Service has available to us.  So, we use whatever means happens to be available at the time we want to do the training.  The important aspect of it is the exposure to smoke and the training that goes along with that to show our employees how to deal with the smoke.
		MR. KRAVITZ:  Okay.  Can you estimate what percentage of your escapeways, both alternate and primary, are travelable by mechanized vehicles?
		MS. CHAMBERLIN:  Any escapeway that we have that's in our track entry.
		MR. KRAVITZ:  Uh-huh.
		MS. CHAMBERLIN:  And, a percentage, about 50 percent.
		MR. KRAVITZ:  About 50 percent?  Okay.  And, you said you're now in the process of trying to incorporate tracking devices in your SCSRs.  What method are you using for this?
		MS. CHAMBERLIN:  We've been talking with the -- with Ocenco, with the manufacturer.  They're here today.  They might be in better position to comment than I am, but apparently, it's a -- rather than being a barcode, which is what we're using in other applications within CONSOL, apparently, it's some small transmitter device.  But, same concept.
		MR. KRAVITZ:  Okay, same --
		MS. CHAMBERLIN:  Same concept.  You know, yourself, that if one of the more deadly attacks that any safety person, or, at least in our operation, any safety person had is to have their light shining on a Ocenco serial number and copy them down at the same time.  We're trying to facilitate that and make better use of our time.
		MR. KRAVITZ:  Okay.  I think it would be nice to have that included as part of the record.  If you could, in your formal comments, by the end of the comment period, if you could detail that, I'd appreciate that.
		MS. CHAMBERLIN:  We would do that.
		MR. KRAVITZ:  Okay.
		MS. CHAMBERLIN:  Again, it's in the talking stages as we go, and quite frankly, we have two priorities here.  One is getting something in the new units that we're purchasing.  Secondarily, it's trying to incorporate something in our existing caches of SCSRs.
		MR. KRAVITZ:  Sure, okay.
		MR. SNASHALL:  You mentioned, when you were talking about smoking in training -- or, smoke in training, something about 16 smokers.
		MS. CHAMBERLIN:  Yes.
		MR. SNASHALL:  Did I get that correct?
		MS. CHAMBERLIN:  Yes, they're --
		MR. SNASHALL:  Could you describe what --
		MS. CHAMBERLIN:  Smokers are a device that's utilized to generate the white smoke that's used underground for smoke training.  It's just the equipment.
		MR. SNASHALL:  You're talking about theatrical-type equipment?
		MS. CHAMBERLIN:  Yes.
		MR. SNASHALL:  And, is that theatrical-type equipment readily available to the industry?
		MS. CHAMBERLIN:  We were able to obtain it.  Whether it was readily available or not, I don't know.  We made a decision to obtain it and placed a purchase order.
		MR. SNASHALL:  Do you know approximately how much a unit costs?
		MS. CHAMBERLIN:  You know, I did, but sitting here today, I don't.  We can submit comments on that.  No, I -- we -- it's -- we can give you that information.  That's not a problem.
		MR. SEXAUER:  Okay, we have no more questions.
		MS. CHAMBERLIN:  Thank you.
		MR. SEXAUER:  I think what we'll do at this juncture is to take a break for lunch and reconvene at 1:00.  We have about four or five more speakers listed.  If anyone else would like to speak, feel free to sign up on the speaker list and -- so, we'll recess now until 1:00.
		(Whereupon, the proceedings in the foregoing matter went off the record for approximately one hour.)
		MR. SEXAUER:   We're going to go back on the record.  Good afternoon.  Our first speaker this afternoon is Chris Hamilton with the West Virginia Coal Association.
		MR. HAMILTON:  Good afternoon.  Did that pick up?  I'm Chris Hamilton, West Virginia Coal Association.  
		I appreciate the opportunity to comment on the Emergency Temporary Standard before us today.  The West Virginia Coal Association is a trade association comprised of coal-producing companies that account for approximately 75 percent of the state's coal production.  West Virginia's coal industry also accounts for nearly 110 million tons of annual coal production from underground mining operations, thus, west Virginia remains the leading underground coal producing state in the country.  Our membership also includes land companies, equipment manufacturers, mine supply and service companies.  
		Again, we appreciate the opportunity to participate in this rulemaking and to comment on MSHA's Emergency Temporary Standard for mine evacuation, published in the Federal Register on March 9, 2006.  We remain committed to operating the safest mines in the country and the world and offer the following comments to enhance and strengthen the overall effect of this rulemaking.
		Initially, we would also like to point to the comments --
		MR. SEXAUER:  We're having a little trouble with the mic.  Let's go off the record and see if we can fix this.
		(Whereupon, the proceedings in the foregoing matter went off the record for approximately two minutes.)
		MR. SEXAUER:  Okay, we'll go back on the record.
		MR. HAMILTON:  I thought maybe you had this space reserved for David McAteer the way this mic system's acting up, here.
		We would also like to point to the comments presented by the National Mine Association at the public hearing held in Arlington, Virginia, on April 28, and would observe that many of our member companies and safety professionals within those organizations contributed to the development of those comments.  For the record, we wholeheartedly embrace and support those comments and would urge your consideration of the same.  Many of the highlights were presented here today by representatives of Arch Foundation and CONSOL, and again, we would support those remarks as well.
		We also would like to point out that today's hearing comes nearly four months after the enactment of a major piece of legislation here in West Virginia, west Virginia Senate Bill 247 addressing many of the same topics in requirements that are presented within MSHA's ETS.  It's also noteworthy to observe that a special joint labor-management workgroup comprised of Mine Health and Safety professionals was also convened to assist in the development of administrative rules to implement the specific requirements of Senate Bill 247.  These rules were initially filed on January 1 and revised on February 28, earlier this year.  The amended emergency rule filed on February 28 contains a number of changes to the February 1 version based on a careful analysis, evaluation by the Mine Safety and Technology Taskforce of Procedures, Protocols, and Requirements for mine operating procedures, mine emergency preparedness, mine evacuation needs, including the proper sequencing of escaping from a mine and the placement of additional breathing apparatuses and lifelines throughout the mine.
		We respectfully submit for your consideration and request that MSHCA examine these requirements which I'll submit for your reference and to consider modifications to your ETS consistent with West Virginia's requirements, or alternatively, consider developing a procedure within this rulemaking for MSHA to approve a state plan for adequately addressing these topics in a similar fashion that MSHA approves state plans for important miner certification programs.  Such plans would meet specific criteria and standards consistent with those in federal law and would additionally provide the same or a higher level of safety or protection for mines and miners.  We recommend the same process be adopted for state-approved plans for mine evacuation programs and requirements.
		Regardless of the approach MSHA elects to proceed, it is undeniable that MSHA's current ETS and West Virginia's emergency rules address the same -- many of the same topics, but do so quite remarkably in a different fashion.  Unfortunately, this leaves coal operations in West Virginia with two distinct, separate compliance standards.  To avoid compliance and enforcement complexities, the state and mine safety offices should join together in this important endeavor to provide uniformity within the rules.  I would also observe that many, if not all, of the members of that state taskforce, including their chairman, are here today, or at least were here today before we broke, in the event someone wanted to initiate that dialogue.
		We would also call to your attention to the West Virginia Mine Safety Technology Taskforce, which is a second joint government, management, and labor entity, and it's obligation to issue a final report by June 1 of this year, outlining it's specific findings and recommendations with respect to the implementation and compliance of similar mine safety requirements.
		This taskforce was created to study issues related to the implementation, compliance, and enforcement of the safety requirements contained within the state's emergency rule dealing with additional SCSRs, escaping sequencing, escaping procedures, mine emergency operations, and preparedness, generally, as well as the placement of lifelines in escapeways.
		As an industry, we are remained committed to operating the safest mines in the country, and for that matter, the world, and pledge our full support toward achieving this shared goal.  Since January, we have drawn upon our collective mine health and safety, and technical and operational expertise to work with state and federal regulators, miners, and other concerned stakeholders to identify and implement mine health and safety measures that will affect real change and real improvement in the mining industry.  Among those initiatives include increased numbers of SCSRs throughout practically every mine in West Virginia.  There are now additional supplies with strategically placed SCSRs per miners in all mines.  West Virginia mines have expanded the number of lifelines and fire protection systems that are available.  Mine operators have stepped up their mine emergency training programs.  All mine emergency and preparedness drills and procedures have been updated and reviewed.  Operators are providing increased training and simulation drills currently to ensure that miners and supervisors are fully prepared in case of emergencies.  Our association of members are working with the West Virginia Office of Homeland Security and Emergency Response along with state mine safety office officials to develop the very best in immediate accident notification system to ensure timely rescue in the event of an emergency.
		Along those lines, I also want to point out that we've had several months of experience with our immediate notification standard.  I believe the standard contained in your ETS mimics -- by and large, mimics the standard embodied in West Virginia's law and rule, and as was previously pointed out, here, earlier today, about 90 percent of all the calls that have come into MSHA during last year are of a nature that mine safety professionals would tend to agree are not life threatening or situations that really warrant above ordinary mine emergency kinds of responses.  We've had the same experience here in west Virginia.  About 90 percent of those that have been called into our system were of an unplanned roof fall or some minor to moderate damage to hoisting equipment.
		We have made a change in our state requirement to effectively carve out those two occurrences, so you don't put that kind of a volume and strain on a system that you want readily available 24/7 to respond, react to true mine emergencies.  That change was filed in a revised rulemaking here on the state level about a week ago.  I will also provide that for your review and your consideration.
		We're also in the process of evaluating the appropriateness and effectiveness of safety shelters on a firsthand basis here in West Virginia mining operations.  We've advocated the creation of and are participating with the Mine Safety and Technology Task Force.  Again, this task force is charged with evaluating and proposing for industry use improvements and advancements in mine health and safety, miner tracking systems, and also, new mine communication systems.  Again, we would urge that you work closely with this group to the extent that you can get together as mine health and safety professionals and develop uniformity and consistency within both the federal ETS and the state requirements would certainly be welcomed by the mining community here in west Virginia.
		I also want to observe that just last Friday, the state, once again, took bold action which our association supported, and established new requirements to have eight additional mine rescue teams fully equipped with all the listening and detection devices here within the state, hopefully by some time by early Fall, those -- all those components will be in place, but it was an administrative rule developed by our Mine Health and Safety Board which has been an arm of the legislative process here in West Virginia.  Both management and labor representatives participate.  The Board has been in effect for some 30 years now and has a record of quickly responding and reacting to mine health and safety issues here within the state.  It's not intended to supplant any existing mine rescue function, if you will.  It's intended to provide a fully -- compliment trained and staffed complement of mine rescue capabilities on the state level, to supplement those that are currently implemented and exist through company programs.
		So, with that, I'll conclude and just express our appreciation for you coming to town, giving us the opportunity to comment on these rules, and we look forward to working with you again in our pursuit of making further improvements to our overall mine safety performance record here in West Virginia.  Thank you.
		MR. SEXAUER:  Thank you.  Any questions?  No?  May I have those two documents that you mentioned?  Thank you very much.
		Just for the record, I'll note that we received three documents.  One is the West Virginia Coal Association comments.  Another one is on NMA stationary, the testimony of Bruce Wattsman before MSHA.  And, another document, West Virginia Secretary of State Law Division, Notice of an Emergency Amendment to an Emergency Rule.  So, we'll put those into the record.
		Okay.  Our next speaker -- we have, I guess, three members from the United Mine Workers.  Will they be -- will you all be speaking together?  Ron Bowersox, J.R. Pastey, and Gary Trout.  
		MR. BAKER:  Actually, Gary had to go to town and I guess the rest of the group is gone, so I'll sit in, in their stead, if that's all right.
		MR. SEXAUER:  Sure, absolutely.
		MR. BAKER:  I guess it's this microphone?
		MR. SEXAUER:  Yes.
		MR. BAKER:  Okay.  My name is Tim Baker, that's B-A-K-E-R.  I am Deputy Administrator for Occupational Health and Safety for the United Mine Workers.  I have already commented fairly extensively on a lot of the emergency standard but would like to make a few other comments for the record.
		First of all, you know, I've got to point it out, I find it ironic that almost without exception, at the three hearings I've attended and also the hearing in Denver where I read the transcript, that universally, mine operators say how they support the idea and they support the emergency standard, and then they subsequently, piece by piece, tear every section of the proposed regulation apart, which I think should be of real concern to all of us.  You begin to wonder which statement is, in fact, the truth, and I think as we look at the comments that have been made, that it's not difficult for me to figure out which is the truth, and just as a couple of for-instances, the 15 minute rule causing confusion is inconceivable to me whenever at the same time we discussed and continue to discuss the problems that miners have donning self-rescuers, but it's not going to be confusing teaching them how to don two or three different units, but it's going to be confusing for the mine operator to report to the Agency within 15 minutes.  
		Somehow, here, I believe we have our priorities backward.  We still support the idea of a 15-minute notification for any accident, for any fire of any duration, we believe needs to be reported and I will agree to a certain extent that on MSHA's side of the ledger, we need to have some sort of an 800-number where we have employees of the Agency with some knowledge about mining so that they can field this information and get it to the proper individuals to take care of the situation.  At the same time, simply having a responsible individual on the surface who doesn't have experience or doesn?t have intricate knowledge of that mine is just as bad on the front end.  So, as we begin to discuss how we're going to report accidents, how we're going to report events, it's not sufficient to say "MSHA, you're not doing your job, we can't get through," or, "we can't get the information."  I would submit to you that operators have a responsibility to have individuals on the surface who are uniquely qualified to handle those situations, understand the mine, understand the structure, understand how to get a hold of people.  So, let's not lay this all on one end of the ledger.  Both sides are culpable when it comes to reporting accidents and what events should occur and flow from that.
		I would also suggest to you, as I have stated previously, that -- and, for anyone of you who were at the Sago hearings, we got to hear about the expertise of MSHA, and I would agree that in many of these situations, that the Agency does have expertise.  So, therefore, as we report accidents, we should defer to their expertise in that 15-minute time frame, let MSHA decide what they need to do at that point.  I am not at all comfortable, and I think history shows that I should not be comfortable, with mine operators deciding "should I report?  Shouldn't I report?"  Let's let MSHA make the decision after the reporting period what action to take.  I don't think there's a miner who has been involved in any of these things who is comfortable with the mine operator making a decision over the course of two hours when there's a fire, or two and a half hours when there's an explosion, "should I notify?  Should I not notify?  What should I do?"  Fifteen minutes is 15 minutes, all accidents, all mine fires.  I don't think it's too much to ask.  I don't think it's complicated.  And, lord knows, if that's confusing, that mine operator has a problem.  That mine operator has a major problem.
		I heard some discussion earlier today, also, and previously about lifelines in entries where there's track or there's haulage and this is a two-fold argument for the mine workers.  We are in support of regulations that would eliminate the use of belt air, that would eliminate the three entry system as we know it.  The situation becomes very simple.  All mine operators, then, play on the same playing field.  You have a four entry system, one which is a designated intake escapeway.  We eliminate the need to worry about where the trolley line is or what equipment's running up and down that heading, you have a separate, distinct intake escapeway.  We don't have to worry that operator A is not competing properly with operator B because one drives four entries, one drives three.  We take care of the situation in that manner and eliminate two problems at once.
		We would not argue, either, that there is a need to enhance firefighting capabilities and enhance those activities.  I was a little confused this morning that there was -- there continues to be this undercurrent that as soon as a 103(k) order is issued that all activity stops and nobody's allowed to do anything and if fire fighting is going on, then MSHA's now in charge, and my understanding of the K order is fairly simple, an d maybe it's too simple, but I think it's the way the system works, is, the K order does not prevent fire fighting that is ongoing.  The K order requires plans to be drawn up, and I would submit to you, if the condition is so severe that we are calling in the Agency and that plans need to be drawn up, those plans shouldn't take hours to do.  Those plans should be readily available when the individual inspector shows up on site.  So, I don't see -- and I continue to hear that from different places that the K order stops everything.  I'm unaware of that being the case.
		To go over a few of the specific questions that were asked, we have been in favor of and do support the idea of tethering miners who need to escape from an area or a section.  The -- obviously, the tethering -- the tethers have to be long enough so that people don't get entangled, whether they're walking or crawling, however that would work, to progress out of the mine.  We think those tethers should be located, first of all, at the beginning of the lifeline, which would be the most logical place to have that tether, however, I don?t think it's too much to ask that the tethers also be available at storage stations for the SCSRs, and obviously, those lifelines should go directly to those storage centers, the SCSR storage centers.  In the event of dense smoke or limited visibility, obviously, this would be extremely helpful in getting people to those locations.  Understanding the need for reflective signs, but the lifelines are going to be much more useful.
		We've already talked, previously, that the union firmly believes that in order for the escape drills to be practicable, and we are not, at this point, advocating walking the entire length of the escapeway each quarter, but we are certainly in favor of walking the escapeway, and how we accomplish that, I think, is something that we will comment on broader in our written comments, but we do need to walk those escapeways, and as we said before, the inspector's got to walk the escapeways every 90 days, that's the time to do it.  That inspector should be with that crew, with those individuals.  That way, we eliminate any possibility of a paper compliance system which does exist in many instances.  So, we eliminate that.
		We have come to the conclusion since the last time I testified that a reasonable distance for SCSR storage should be considered in a time frame because, in reality, distances mean very little when you're trying to make an escape.  The time is of the essence, and we have concluded that SCSR caches should be in every mine at 30 minute intervals, and those distances will obviously vary based on the height of the coal seam, but it seems reasonable to us that 30 minutes is a long enough distance to have to travel.
		We do need to move on, also, to the next generation of SCSRs.  I think that that is on the horizon.  I think that technology needs to be pushed, here, and this Agency has the ability to and should push that technology for a rescuer that lasts an hour and a half or two hours, or whatever that may be.  We need to push for those things to occur.
		Records for SCSRs.  I've got to believe that most of this information, whether it's the total number at the mine, the manufacturer, the serial number, the -- I mean, it's got to be on a computer somewhere.  This does not seem to me to be overcomplicated for them to transfer that information from the mine office or the corporate office to the MSHA district office that's responsible for that mining operation.  
		One thing I would also suggest, since it seems important to us, is that the sale or purchase of SCSRs, whether you purchase a mining operation as has been done in many instances, for instance, central Pennsylvania, where the mines were purchased and then subsequently closed down, those SCSRs that are transferred, that information should be very quickly sent to the Agency so we know where those units are, and that tracking information should be readily available.  This is not a complicated -- I don't think it's a complicated function.
		The other thing that I commented on to some extent, and is something that concerns us greatly is the idea of what we're calling a safe haven.  I believe, as I stated before, this gives miners a false sense of security.  If we're dealing with a safe haven that has a door on each end of the cross-cut and some SCSRs in between, this is in no way a safe area.  When the door opens, if the air outside is contaminated, the air inside quickly becomes contaminated, but I think just the structure itself lends itself to the idea that "oh, this is a good place to be, I can either wait here or I can take my time changing out my SCSR," so, safe havens, in our opinion, just are not the solution.  If you're going to be a ball kit seal, if you're going to put submarine doors in it, if you're going to have positive pressure, then in reality, you may have a safe haven there.  That may be the truth.
		One thing I would caution against is, we go down this road and we put a safe haven at the head gate of a long wall panel that's 20 -- going to be 20,000 feet long, we soon have no access to that safe haven.  It may well be a very good protectionary for the SCSRs, and that's the investment that operators are making at this point, that that may well be the case, but it's not a safe investment for the miner.  We are looking into safety chambers, rescue chambers is kind of a bad terminology, I think, and as we look at those particular pieces of equipment, there are a variety out there.  We need to be very careful as we go through that.  I was glad that the individual who was -- who I was told was going to go -- come here and speak about the one he built in his garage didn't arrive.  We need to have some very specific parameters when we deal with safety chambers.  These things need to meet certain standards and we can't have a -- we need to have a prescriptive solution to that.  To allow too much flexibility will lead to the least common denominator, "what can I get cheapest that I can live with and the Agency will accept?"  I think we need to set some parameters there.  And, we will be dealing with a couple of those in our written comments that we've had a chance to really look at.   
		Another issue that we need to deal with, I think, and there are several that seem germane to the issue but kind of got missed in the rule.  We do need to revamp and revise, and really, revitalize our mine rescue team and our mine rescue team concept.  There are not enough, despite what anybody says.  There are not enough.  I think that some of the recent problems that we've had in the mining industry indicates that we can wear these teams out fairly quickly.  Not only is it dangerous and stressful, these are long hours and long periods of time, and we need to look at how we expand that nucleus of mine rescue team members, and perhaps, in some instances, I think has been suggested by some senators on Capitol Hill, give some incentive to increase that capacity.  But, we need to look at those things.
		We need to also look at how we deal with small mines.  I want to be careful about how I define small mines and a small operator.  Small operator is not an operator who runs 20 mines with 20 or less people.  That's not a small operator, okay?  They may have a small operation, but they're a larger operator than most would think.  They don't necessarily fall into a position where they get this small operator caveat, and -- at least from our perspective.  
		But, we do need to address how we deal with those, whether we have one or two individuals on site with mine rescue capabilities and understanding of the particular mine, and they need to be readily available, and mine rescue teams, then, from the closest mine that has a mine rescue team, not from god knows where, you know, two and a half hours away, or from the closest facility that has a mine rescue team arrives, they can be on site and they can brief and they can get things ready.  
		Beyond that, our position is, the Act is clear that mine rescue teams are required.  Two mine rescue teams are required at all operations when men are working underground.  Readily available, in the opinion of the United Mine Workers, means that if you have a mine rescue team and the members are on midnight shift and it's midnight shift, that team is not readily available.  Therefore, two other teams must be available.  That is a clear understanding of the act.  It's not complicated, it's not difficult reading as some things are.  So, that is what we are looking at.  We need to revitalize the entire system.
		I believe that should be pretty much the end of our comments for the record, at least at these hearings, and hopefully, we will be given the chance to have hearings -- additional hearings either in Washington, Pennsylvania, Morgantown, West Virginia, and Tuscaloosa, Alabama, would be a good place.  These are concentrations of large mines and those individuals need an opportunity to speak, and I realize people can say "we came to Charleston, Tim, and we were in the coal fields."  The membership of the mine workers that attended today have a six hour round trip.  Now, that may not be a hardship for me because they pay me to travel and they pay me to speak, and I don't have to worry about getting dressed for midnight shift tonight, but that is a hardship for miners.  That's -- it is not, in our opinion, proper to have hearings this way.  I have heard and you have heard, and everybody's heard from operator after operator, and you've heard from me more often than you need to, but the reality is that they, the operators, like I, that's my responsibility for the day, and at the end of today, my day is done and I prepare for the next thing I'm going to do tomorrow.  The miners sitting in the back of the room will prepare for their midnight shift tonight.  It's not the proper way to run this operation.  The concern, the charge, the responsibility of this Agency is not the mine operator.  It is not the mine operator.  It is every miner who goes to work every day.  They need to be heard.  To this point, few have been.  We need to correct that.
		In closing, I've got to say one more time that flexibility is a right.  Flexibility is something you earn.  Flexibility is something this industry has not earned.  If it's not prescriptive, if it's not demanded, those things will fall by the wayside.  Those things will not occur.  This industry is no more capable today of policing itself than it was in 1968.  That's a sad reality of the situation.  That is what we deal with.  So, flexibility has, as I've said in the past, allowed for belt air, allowed for diesel generators in underground coal mines, allowed for three entry systems and two entry systems.  These things aid production, these things increase profit, these things do not -- absolutely do not enhance the health and safety of any coal miner in this nation.  We need to listen carefully to what flexibility really means.  They have not earned it, they don't -- do not deserve it.
		If there are any questions, I'd be more than happy to answer any questions you have.
		MR. SEXAUER:  Any questions?  Okay.
		MR. SHERER:  Mr. Baker, you talk about spacing the SCSRs at 30-minute intervals.  Any suggestions about how do you determine that 30 minute interval?
		MR. BAKER:  Well, I guess, and part of that process would have to be with the -- with, at least to a certain extent, the escapeway drills that you're going to do, and as I said before, I?m not advocating having somebody start at the face and walk 10 miles out of the mine.  We may need to do this incrementally, but that would at least be a beginning test of how far from the face to the first cache you need to be.  
		I'm not so certain that the NIOSH heart rate study is effective.  To be honest with you, I'm not that familiar with it, and, you know, most of the math, here, confuses rather than clarifies.  But, I think that we're not that far away from being able to do that.  I think there's some semblance of the people of the experts not only in this room but other agencies or with mine operators and miners, that distances shouldn't be that hard to figure out to get to 30 minutes.  I think, sometimes, we try to create so much science around a subject that we lose track of the simple "how can we walk this thing, how do we walk it and how long is it going to take?"  Some of it's simpler rather than difficult.
		MR. SEXAUER:  Thank you, Tim.
		MR. BAKER:  Thank you.
		MR. SEXAUER:  Our next speaker is Rick Abraham from the Rio Group.  
		PARTICIPANT:  We're having trouble hearing.
		MR. SEXAUER:  Okay.
		MR. ABRAHAM:  Well, I'll pull this mic up a little closer.  Can you hear that?
		PARTICIPANT:  There you go.
		MR. ABRAHAM:  My name is -- let me get it a little higher.  I'm Rick Abraham.  I'm from Logan, West Virginia.  I have about 38 years of underground mining experience.  Since 1974 I have, at all times, been part owner and operator of coal mines.
		In my 38 years of mining, I have had the privilege of, at all times, work above drainage, or what's commonly referred to as mountaintop mining.  I have never detected any measurable amount of methane, either with machine-mounted monitor or hand-held monitor, in any coal mine that I've ever owned or operated, or, in fact, actually worked in.
		Before I move forward, I would want to say one thing.  The judicial branch of government is somewhat -- the branch of government that is tasked to interpret our laws.  That is not a privilege given to the executive branch, as seen with abortion or prayer in schools.  A federal judge in Florida may determine abortion's legal in Florida.  It has no relevance in West Virginia.  With that being said, whatever rules you do come up with, they should be clear, concise, and be very careful to avoid language that uses phrases like "approved by Directors," that opens them up to interpretation and different interpretations by district, by district manager, by supervisor, and even by inspector.  That is not a privilege that MSHA has.  These are not that complex.  I would implore on you to train your personnel whatever the rules are that they be trained and that printed information be given to the industry so that they also have a clear understanding of what we're tasked to accomplish.
		On the issue of SCRs, with it being said, that in the mines that I operate, it is just as likely to have a fire as in any coal mine, but I would disagree with those that would say I have the same likelihood of explosion.  Because you do not have the authority to control commerce, and you should not have, there is an issue with compliance.  I would submit that you, one, either reduce the standard for outby SCSRs and change the time frame for this reason.  When I placed my order, I was told "don't even think about them for a year."  I just heard the lady with CONSOL, and god bless them, not only do they have what you're asking, they have more.  
		If it is the belief of this panel and the consensus of the miners and the industry that all miners are entitled to more than one breathing apparatus, then without your ability to control commerce, I don't know any other way for you to ensure that every miner at least has two before some have 20.  I don't know the urgency in a mountaintop mine to store additional, additional on top of each other.  I would also suggest that more of a concern for me would be those who most need them, get them, and I don't think that's actually my company.  I think that's those deep in the earth who have methane should get theirs first.  I believe you can control that by either removing some of your proposals for more than just in the face with a time frame.  Once that's accomplished in a manner, that then you can bring forward the next rule that would allow more and more and let everybody come into compliance in the same fashion.
		I think there's been a mixing of phrases like "safe houses" and a company coming forward and saying "we would like to store them in a safe location."  They were not suggesting that -- sharing those in a primary and a secondary escapeway would somehow be compliance with your proposed rule for a safe house in a coal mine.  I would suggest, they should be able to do this along with sharing of the rescuers in a wall.  Those that oppose it presume that the air is -- the air quality is good on one side and it's not good on the other side.  That's not at all a good assumption, especially if someone's suggesting the temperature's 1,000 degrees.  If the temperature's 1,000 degrees, I would suggest it's more likely that the quality of air and the temperature would be more likely on both sides of the wall, and if we're dealing in thousands of degrees, we've got catastrophic problems to start with.
		It's sort of ironic that he mentioned that something would be built in a garage, because I, in fact, have built a box in my garage or my shop with less than one hour research on the internet and a couple hundred dollars of materials that may have been thought to be exotic years ago, but due to the space program, are just common, for $6.00 a square foot, I was able to build a steel box that would be placed into a wall 24 inches thick, would store 120 rescuers, and when tested, I maintained the door temperature at 500 degrees by blowing on it with a gas turbine for over two hours, and the temperature in the box was less than 100 degrees.  The box was empty.  I did not have the rescuers to put in it nor did I put any mass into it, but my recollection from thermodynamics from college years ago would suggest, had their been mass inside that box, the temperature would have been much less.
		Also, the standard which you have set is basically none.  I could just as well store my self-rescuers in a cereal box so long as I paint it with fire retardant paint.  Those that have come forward suggesting that by combining them, not only would it release for other operators like myself to gain rescuers that otherwise may not get them, you have no standard to protect them from roof fall, rib fall, temperature, moisture, movement, location.  All of these things would be improved by placing them between two walls or placing them in a box accessible from both sides that won't get up and walk off on the third shift because of a miscommunication between foremen, and now, nobody knows where the box is at.
		The question should not be "is it allowed," the question I have of you is "why is not mandatory?"  That's the question.  Not "should we be doing it," it's "why are you not requiring us to put them between two walls, put them in a box in a stopping that won't move, and protect them?"
		In fairness of full disclosure, my mining company did start a subsidiary for the purpose to research, develop, and sell a lifeline.  I don't want to really discuss that issue, other than just let you know that it is something I'm doing, and I have some interesting results, but it's nothing that I want to share today.
		My brother was a highly trained military pilot who was trained to fly in all weather conditions, and I did that with him.  The disorientation by no visual contact or any reference -- of course, it was also enhanced by no real sense of gravity up or down, but you had no reference on the compass of where you were at, is frightening.  For the same reason that highly trained pilots look at their instruments that tells them they're flying straight and level but will turn their planes and fly them into a mountainside is the same thing that you need to give a lot of thought to when miners are in zero-visibility conditions.  It's not just so simple to go over there and grab the lifeline and find your way out.  If you could find it, it gives you hope.  I've heard nothing that would suggest anything that's going to help me go find it.  I can tell you what doesn't work:  a strobe light.
		On the issue of smoke machines, if anybody's looking to just -- for a small room or what I've built, there's a number of theatrical smoke machines.  The one I bought was $300.00.  They're readily available at Mac and Dave's, any music store has them, they're on the internet, they're theatrical smoke, latex, they're safe to breathe.  The bigger machines are also on the internet.  A lot of people have got them.
		One thing, there seemed to have been some criticism in Logan about the fire department and their involvement in one of the recent disasters.  They do have a technology that's thermal imaging.  I have taken the camera underground.  Some of the results are interesting.  It's not the sole answer, but it's something that MSHA should look at and give major consideration.  I've tested lights, laser beams, smoke is tough to look through.  Thermal imaging can do it.  It can be used to guide vehicles or people to safety.  It would be unconscionable to stop and say "buy 16 rescuers and everybody's happy," and go away until the next disaster.  
		One thing, I guess it's FOX News and the publicity that the last two disasters just happened to be smoke and fire, but had it been a couple years ago, it was an inundation of water.  That seems to be off the headlines today.  
		The other thing that I?m a bit confused about, and I don't even know if you have the ability to fix it, there seems to be -- we've used the word SCSR in law and that, by definition, defines what it is that's available to me.  When I went to the fire department, the guy pulled up an apparatus that's available today, it would give me two hours of breathable air, a full face shield, I can speak with it on, I can replenish the air in it without taking it off and donning it and switching from one brand to another, but it's my understanding it was a matter of law, these things can not be considered because the law was written and defined what a breathing apparatus is.  I would suggest that the SCSR would be a device to get you to something else, and once you get there, the world should be open to new technologies and new ideas.
		I guess that's the same reason I'm not a member of a mine rescue team, but it's my understanding, that's not their device their choice when going back into ruined environments, where the air is not breathable.  That is not the device they choose to wear.  Now, there is a reason for that.  MSHA should look at that, and if the law is wrong, then it should go back to congress if you don't have the ability to fix it, then we have a congress that has the ability to fix it.
		And, with that, I'll get off my soap box and I thank you for your time.
		MR. SEXAUER:  Any questions?  No?  Thank you.
		Our next speaker is James Szalankiewicz.
		MR. SZALANKIEWICZ:  Thank you for this opportunity, and after sitting back there all this morning, I'll try to keep up close and talk loud.
		I am an owner/operator in Western Pennsylvania, four small underground coal mines.  Three of them are low coal, one of them is a little bit higher.  And, the low coal I am defining as 36 inches, and the unique nature of a 36-inch coal seams, I don't think has been intentionally neglected, but I think they have to be recognized, 36-inch coal seams.  And also, the unique nature of a small coal mine and, as I said, our mines are relatively small, one production unit in it, the mines are in the upper Freeport coal seam, ingress and egress as by method of a three-wheel, battery mantrip, permissible and nonpermissible, depending on where they're used.  Those are how the men go in the mine.  
		As an owner/operator, I do not want to see any type of injuries.  Knee injuries are, by far, our largest reportable accident, and they can be chronic, so we do everything in our power to make sure that the man in the mine gets a ride to wherever he's going, a ride back out, or any examinations.  The only place that a worker for us is on his hands and knees, and in 36-inch coal, make no doubt about it, you're on your hands and knees, is in the working place.  The mantrip is, basically, outby area and they ride in, leave their lunch there, and do their work.
		Our primary escapeway is also our way into and out of the mine.  The men coming into the mine ride in that entry -- escapeway or intake, main intake way, and ride out every day as part of the routine.  They are riding a three-wheel mantrip, either permissible or nonpermissible, depending where they need to go.
		Our entire -- our secondary escapeways are all in our belt entry directly adjacent to our primary escapeway, our main intake.  The beltway is separate air course and again, it is our secondary escapeway.  One is adjacent to the other.  Any of our mines, you can also ride a three-wheeler the entire length of the secondary escapeway, around belt drives, the whole way out.  They're designed that way because I recognize as a fact that the more our gentlemen crawl, our coal miners, the more injuries they're going to have and the more likely they're going to get hurt.  So, again, we groom the mines so there's no place or no duty other than the actual loading coal that the man can not get there.  Weekly return runs, they're all traveled on a three-wheeler.
		But, one of the major concerns I have is the idea of our men having to crawl a mile and a half, two miles out of a 36-inch coal seam.  As I said, our biggest injuries is knee injuries.  We've been involved in multiple studies over the past several years with NIOSH and with MSHA from the District 2 office, evaluating different types of kneepads, different techniques, different snake oils, anything we can to keep these gentlemen healthy and keep their knees healthy, and for me to ask my men to go through the exercise of leaving that perfectly good mantrip there and crawl two miles out of a mine, it's very, very foolish.  I'll make the prediction right now, for the record, that if I'm required to have my men crawl out of that coal mine, my lost time accidents are going to more than triple.  At least, more than triple.  It just isn't conducive.
		Again, bear in mind that the characteristics and the environment of these mines are all dedicated around being able to ride in and ride out, and there is generally multiple sources of transportation.  There's probably two vehicles for every -- you know, two options to get in and out of the mine, so I'm very, very concerned of that idea of having to crawl in and out of the mine.  It just does not make any sense.  Certainly, I want to be familiar with the escapeway routes, but they're very simple.  You know, one entry in, one entry out. 
		So, I am very concerned about that portion of the proposed regulations.  None of our job descriptions in our coal mine involve crawling in or out of our mine.  You crawl in or about the working place, you have proper kneepads, any kind of kneepad imaginable, but none of them include crawling in and out of the mine.
		With that said, I do -- again, to reiterate, I do not believe we should be required to crawl in and out of the mine.
		One thing that I've noticed, and, of course, I?m perfectly aware of it, in a disaster, a mine emergency situation, I agree with what's been said today:  evacuation is paramount.  Get out of there.  I have a somewhat strange situation in the Commonwealth of Pennsylvania.  If there is a fan outage in the Commonwealth of Pennsylvania, my gentlemen are required to leave their mantrip there and crawl out of the coal mine, no if, ands, or buts about it.  Now, let's couple that fan outage with a possible emergency.  With the new regulations, my men are going to carry an SCSR by their side.   They're going to have one on the mantrip or the scoop for each of the men.  If there is a fan outage and there is an esc -- an emergency, my men have to leave their mantrip and crawl to their death, two and a half miles out of the mine.  I mean, it just -- it doesn?t make sense.
		Now, I realize the MSHA regulations allow us to do that, but, you know, we're looking at emergency standards, here.  I think an emergency standard might be due in this situation that in the case of a fan outage, the men be able to exit that mine.  You know, with today's technology, with multiple gas testers, you know, get out, but it's very frustrating to me as an owner/operator.
		The lifelines also present a somewhat unique situation in low coal.  I'm not saying not to have lifelines.  That's not my intent.  My intent is, try to develop some way that they're practical in low coal.  Again, it's 36 inches and if you have them in your primary and secondary escapeway, our primary escapeway is a route into and out of the mine and placement of that lifeline is going to be very difficult to come up with.  You've got to put it some place where, first of all, it will remain in place and not be torn down by a scoop or a mantrip, and you've also got to place it some place where the operator of that scoop or mantrip isn't going to get decapitated.  That's why the -- John Gallick had mentioned the possibility, and we have basically asked him to, to consider putting it on the high voltage cable.  I realize that that's a -- you know, that's a point of concern, but in our mines, that high voltage cable is one area that nobody ever goes as a rule, and it's always protected.  That would be in our primary escapeway.
		The second situation is in our secondary escapeway, it's a conveyor belt.  From the loading point clear outside, you just keep that belt on your right-hand side, and you're going outside.  I'm not saying lifelines aren't practical, but again, put yourself in my operator -- my coal miner's position.  There is an emergency, he has to crawl out, carry one rescuer, wear another one, and hold a lifeline.  I'm not -- believe me, I don't say that they shouldn't work, but I think the local aspect maybe deserves a lot more consideration than possibly it's getting.
		Now, I wasn't at the other three meetings.  In fact, I almost didn't come to this meeting because I?m like the gentleman from Pennsylvania, I'm six hours away, but I think that the lifelines themselves do consider -- have to have some consideration of where they could go.  I suggest that if it's a belt entry that the belt is in the secondary and it's continuous to the outside, I don't think you have anything more permanent than that, and as far as a primary escapeway, I would like to see consideration to leaving it on the high voltage cable.  Again, maybe it won't work, I don't know, but some way, it's going to be a very, very difficult task to keep that lifeline suspended to the roof without having it torn down routinely, and certainly, if it's there, you want to be able to count on it.  You don't want to be able to have an emergency and someone assume the lifeline was continuous, you're following it, and it get taken down somehow.
		Now, the SCSR issue, you know, I certainly have no problem with that.  I hope we never need them, but as one gentleman said, we've all placed our orders now and it's going to be some time before we get them.  One of my particular coal mines is in there quite a ways and we're going to have at least two cache areas, and I understand that right now, that the outlook is, you put one in a primary sec -- escapeway and one cache in a secondary escapeway.  Well, in our situation, the primary and the secondary are right beside each other.  In other words, you can go through a mandoor from one to the other.  Now, when I start to get these SCSRs delivered and if I don't have enough to do the entire mine when they come, I would suggest that I do put them in a common crosscut and I do put a stopping on each side and a mandoor on each side.  That way, either entry, the gentlemen have, at least for the time being, they could get by both routes.  Now, when I do get enough to do the entire mine, my intent there is, you know, basically, I'm going to have one storage area on one side of a stopping for the -- if you need to come out the primary.  On the other side, I'll have the other storage area if you need to come out the secondary, and lord help us if we need any more and we're coming out the primary, we just go through the secondary to get them.  So, you know, I think the idea of the consideration for -- at least until all the ones that are manufactured are needed -- I mean, are needed are manufactured, some consideration to be given to that outlook of it.  
		And, now that we're all taking a little closer look at our SCSRs, we're also beginning to think that maybe we should be getting rid of some.  We're losing some through attrition, by looking at them closer, so that's also going to be a little bit of problem on the supply.  But, we're prepared for it, so we've made our orders and there's good storage units out there on the market, and we'll put them in there when they come, but my purpose is to make sure that, fellows, we don't -- and I'm not sure what the other meetings were like, if any low coal operators spoke, but we are in a unique situation.  I'm sure there's nobody at that table could, you know, crawl two miles out of a mile or one mile out of a mine, and I know you've heard that, so I would like to have -- go on the record as I think that the evacuation plans should be allowed to be ridden out of the mine.  If we don't, as I said once before, you're going to see my accident -- lost-time accidents go up drastically.
		But, I do want to thank you gentlemen and lady for the opportunity.  I said I didn't really intend to come and I apologize for the informal nature.  If I thought I was going to speak, I'd have written something up, and I will follow up with a hard copy, but as I listened to the meeting today and I heard very little concern about my application with low coal, I thought I'd like to get on the record with that and maybe get a little bit more attention if at all possible.
		Any questions?
		MR. SEXAUER:  Do you have a question?
		MR. FORD:  Sir, since your mines are small, like you said, do you operate one shift per day?
		MR. SZALANKIEWICZ:  No, some of them are two shifts per day.  Some are two shifts a day.  And, with the new regulations, with the amount of SCSRs, we will be staggering them so I don't have to double it one more time.  They won't be, you know, hot changes.  I will have one crew come out of the mine, the other crew go back in the mine, which is no problem, but it will save me doubling the SCSRs one more time.
		MR. FORD:  Okay.  On average, how many workers are in -- on -- per mine?
		MR. SZALANKIEWICZ:  In -- on the average, on a two-shift operation, I have about 25 men.  On the daylight shift with a super, the mine foreman, major foreman is there, it would be slightly over half.  On the afternoon shift, they're slightly less than half.
		MR. FORD:  Okay.  So, you've got about 12 men on a shift?
		MR. SZALANKIEWICZ:  Yes, sir.  Approximately.  A matter of fact, our storage plan, I think we're -- we designated 15 at each cache.  That way, we were certain to cover the guys in the mine.
		MR. FORD:  Okay.  I've just got one more question.
		MR. SZALANKIEWICZ:  Sure.
		MR. FORD:  On your ordering purchases for SCSRs, --
		MR. SZALANKIEWICZ:  Yes, sir?
		MR. FORD:  -- can you tell me what kind of SCSRs you --
		MR. SZALANKIEWICZ:  We've been doing them --
		MR. FORD:  -- have been ordering and about the average price?
		MR. SZALANKIEWICZ:  We have always used the CSEs.  We're happy with them.  We -- when I first went in business about 15 years ago, we considered a W-65, but we said, "let's just go with the self -- it's there, it's good for an hour," and when we first started buying them, I don't mean to indicate that the economics are going to dictate over safety, not -- that's not my intent, I don't think there's anybody in this room that isn't here to improve mine safety, but when we first started buying, they were around four and a quarter a piece, now they're $600.00 a piece, and I'm -- support, you know, capitalism, supply and demand, they're probably going to go up some more, but to me, that has nothing to do with mine safety, and I don't think any of the other mine operators have that problem either.  We certainly want to get any type of consideration, and again, I do feel that keeping in the same cross-cut, in our unique situation, would not be a problem, but, you know, we'll do what you guys need us to do, but if I do have to put them in separate entries, I am going to put them one on each side of a stopping with a mandoor.  If the guys need them, they're there.
		MR. SEXAUER:  Thank you, and thank you for coming the distance to speak to us.
		We've covered all the speakers that have signed up.  Is there anyone else in the audience who would like to address the group?  
		I'd like to express my appreciation on behalf of MSHA to all of you who participated today at the public hearing and your comments and testimony will help us develop a final rule that provides the most appropriate and effective protection for miners and we'll take into consideration all the comments and testimony that we've heard.  So, thank you once again.  This hearing is adjourned.
		(Whereupon, at 2:13 p.m., the proceedings in the foregoing matter were concluded.)	
//
//
//
//
//
//
//
//
//
//
REPORTER'S CERTIFICATE
CASE TITLE:   Public Hearing on MSHA's Emergency 
		
		    Temporary Standard for Emergency Mine 
		
		    Evacuations 
HEARING DATE: May 9, 2006 
LOCATION:     Lexington, Kentucky 
	I hereby certify that the proceedings and 
	
evidence are contained fully and accurately on the 
tapes and notes reported by me at the hearing in 
the above case before the 
Department of Labor. 
				Date: May 11, 2006 
				Kristopher Robert Kaun
				
				Official Reporter 
				
				Heritage Reporting Corporation 
				
				Suite 600 
				
				1220 L Street, N. W. 
				
				Washington, D. C. 20005-4018 
 
??
 
 
	TRANSCRIPT OF PROCEEDINGS
	HERITAGE REPORTING CORPORATION
	Official Reporters
	1220 L Street, N.W., Suite 600
	Washington, D.C.  20005-4018
	(202) 628-4888
	hrc@concentric.net
	Heritage Reporting Corporation
	(202) 628-4888