UNITED STATES OF AMERICA

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DEPARTMENT OF LABOR

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MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

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PUBLIC HEARING

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30 CFR PART 48: TRAINING STANDARDS FOR SHAFT AND SLOPE CONSTRUCTION WORKERS AT MINES; PROPOSED RULE

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	Thursday, August 26, 2004

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	The hearing came to order at 9:00 a.m. in the 25th Floor of 1100 Wilson Blvd, Arlington, Virginia, Rebecca J. Smith presiding.


Present:

Rebecca J. Smith	Panel Chair
Jennifer Honor	Panel Member
Mike Kalich 	Panel Member
Tom McLeod		Panel Member
Phan T. Phuc	Panel Member
Larry Trainor	Panel Member











	I-N-D-E-X

	Page

Introduction - Chairperson Smith	3 

Presentors:

William Howe	8 

Robert Pond	15

John Moore	24

Alan Zeni	41

Murray Johnson

Steve Thomas

Adele Abrams

Jim Brendel

	P-R-O-C-E-E-D-I-N-G-S
	9:01 p.m.
		CHAIRPERSON SMITH:  On the record.  Okay.  Good morning, everyone.  My name is Becky Smith.  I?m the Deputy Director of MSHA?s Office of Standards, Regulations and Variances.  On behalf of Dave Lauriski, I would like to welcome of you to this public meeting this morning.
		The purpose of this hearing is to obtain input from the public on a proposed rule that was published in the Federal Register on July 16, 2004.  We have copies of that proposed rule at the back registration table if you need extra copies.  The proposed rule we are addressing today would include shaft and slope construction workers under MSHA?s Part 48 training requirements.  Under the proposed rule, shaft and slope construction workers at surface and underground coal and metal/nonmetal mines would be treated like extraction and production miners and subject to the same Part 48 training requirements. 
		I?d like to introduce those on the panel with me here today.  On my left, Tom McLeod is in fact the chairman of this Regulatory Development project and Tom is a training specialist in our Educational Policy and Development organization.  Larry Trainor is from our Metal/Nonmetal organization.  Jennifer Honor is from our Solicitor?s Office and Mike Kalich is from our Coal Division of Safety organization and Phan Phuc is economist from the Office of Standards.
		This hearing is being held in accordance with Section 101 of Federal Mine Safety and Health Act of 1977 and as is the practice of MSHA, formal rules of evidence will not apply.  Therefore, cross examination of this hearing panel member by the hearing panel members will not be allowed, but the panel may explain and clarify provisions of the proposed rule.
		As moderator of this public hearing, I reserve the right to limit the amount of time each speaker is given as well as the questions of the hearing panel.  Those of you who have notified MSHA in advance of your intent to speak will be allowed to make your presentations first.  I will call speakers in the orders that the requests were made of MSHA.
		Following these presentations, others who  request an opportunity to speak will be allowed to do so.  We invite all interested parties to present their views at this hearing and if you are sitting in the audience now and wish to speak, please be sure to sign in at the registration at the back of the room.
		We will remain in session today until everyone who desires to speak has had an opportunity to do so.  Also if you are not speaking today, we would like for you to sign the attendance sheets so we have an accurate attendance record of today?s meeting.
		We will accept written comments and information at this hearing from any interested party including those who are not speaking.  When I call on you to speak, please come to the speaker?s table and begin your presentation by identifying yourself and your affiliation for the record.
		If you have a prepared statement or any supporting documents that you would like to submit for the record, please leave a copy with us today.  You can get written comments on this hearing to us today or you can send them to MSHA?s Office of Standards electronically, by facsimile, by regular mail or hand-carry using the address information in the Federal Register notice.
		The post hearing comment period on this proposed rule will end on September 14, 2004 and submissions must be received by that date.  A verbatim transcript of this hearing will be made as part of the record and it will posted on MSHA?s website.  If you would like a copy sooner than the publication on our website, you can make your own arrangements with the court reporter.  The company information is available at the registration table.
		Before the speakers begin their testimony this morning, I would like to give you some background on the proposed rule we are addressing today.  Section 115(d) of the Federal Mine Safety and Health Act of 1977 states that ?the Secretary of Labor shall promulgate appropriate standards for safety and health training for coal and other mine construction workers.?
		On October 13, 1978, MSHA in fact did publish regulations for the training of miners in 30 CFR Part 48.  The regulations prescribed the training that miners must receive before being exposed to mine hazards.  The regulations exclude shaft and slope construction workers, workers engaged in construction activities ancillary to shaft and slope sinking, surface construction workers and underground construction workers where the construction activities require the mine to cease operations.  Training for these workers was left for future rulemaking.
		Recently, we have analyzed accident data and it shows that from 1982 through August 2003 there have been 15 fatalities among shaft and slope construction workers.  Based on this data, we believe that miners performing shaft and slope construction work will be provided with training like other underground and surface miners.
		A study of these fatalities and a review of shaft and slope construction tasks and operations reveal two important factors.
		1.  The hazards that confront these workers are generally no different from hazards faced by all other underground or surface miners; and
		2.  While we recognize that there are some specialized shaft and slope construction tasks, shaft and slope workers perform a number of tasks that are similar to or the same as the tasks performed by miners already covered by the existing regulations.
		In fact, in some instances, shaft and slope construction is being done by experienced miners using conventional mining equipment and methods.  Therefore, we publish this proposed rule to include these workers in the existing training requirements so they receive similar protection to other similar workers.  Our purpose here today then is to further receive information on this proposed rule.
		Our first speaker today will be Mr. William Howe.  Mr. Howe, if you could please.
		MR. HOWE:  Thank you.
		CHAIRPERSON SMITH:  Say and spell your name for the record and your affiliation please, sir.
		MR. HOWE:  My name is William Howe, H-O-W-E.  I?m Secretary and General Counsel of the Association of Bituminous Contractors.
		CHAIRPERSON SMITH:  Thank you.
		MR. HOWE:  I have an opening statement and then we have four of our members here to testify today as well as R.G. Johnson which is a former member and shares the same concerns as the Association and its member regarding this particular proposed regulation.
		The Association of Bituminous Contractors is an association of independent construction contractors which perform construction work for mining industry customers including the construction of shafts and slopes by conventional, raised drill and blind-hole drilling methods.  The Association and its members fully support the need to provide safety and health training to shaft and slope construction workers.
		However, for a number of reasons, the Association and its members disagree with MSHA?s proposal to accomplish this important task by simply subjecting shaft and slope workers to the existing requirements of Part 48, particularly subpart A and subpart B.  It is not an effective way to provide meaningful training to shaft and slope workers and it fails to recognize the very real differences between mining and the way construction is performed.
		Shaft and slope construction is different than underground mining, even though shaft and slope workers may encounter, in some instances, some of the hazards as miners when they are performing certain phases of the work.  Shaft and slope construction is construction work.  I think it?s important to keep that in mind.  Its purpose is to build a structure which only after it is completed will be used in the extraction of coal or some other mineral for commercial purposes.
		A shaft and slope construction project requires employees to perform work both on the surface  and underground.  Workers are not assigned exclusively to one location or the other.  Almost 90 percent of our workers work both on the surface and on underground.  I mean this idea that you have surface shaft and slope construction workers and underground shaft and slope construction workers is simply not true.
		The hazards encountered in shaft and slope construction are typical of hazards found elsewhere in heavy and industrial construction.  Many of these hazards are different from those in underground mining.  For instance, shaft and slope construction workers like others employed in the building and construction industry regularly face hazards associated with working at heights.  This probably is our greatest concern and I think it?s one that?s not shared with people working in underground mines.
		Unlike at mines where miners are employed  on a permanent basis, shaft and slope construction workers are employed at temporary construction sites.  The contractors that perform the work may do so at a number of widely scattered locations with support services provided from a home office which is many times hundreds of miles away from where the actual sites are located.
		A typical shaft or slope project goes through a number of phases from the time it is mobilized until the time it is demobilized.  Scales and equipments vary from one phase of the project to the next as do the types of hazards encountered.  Likewise, the work force at a typical shaft or slope  construction project goes through a number of phases from the start to the completion of the project.  The number of workers typically start small, builds up to a maximum perhaps working around the clock seven days a week when in full production and then tapers off as the project is completed.
		Hiring new employees usually takes place throughout the life of the project.  People are just not hired at the beginning to work with the project.  It?s a continual process in the shaft and slope construction business.  As in the case of most construction projects when viewed in the form of a graph, a manpower usage over the life of a project appears in the form of a bell curve.  It starts out, builds up, finishes, winds down.
		All shaft and slope contractors provide training to their employees.  The training provided takes into account the way shaft and slope construction is performed so that training is appropriate for the work and hazards being encountered at the time the training is given.  New employees are given orientation training and training in tasks currently being performed and additional training is then provided as necessary.
		Crews at shaft and slope construction projects are small since work is performed in a very confined space.  It is necessary to be able to fill vacancies quickly since the absence of even one crew member may adversely affect the efficiency and productivity of the project.
		When Congress put mine construction under the Act in 1977, it recognized as you did in your opening statements remarks that construction is different than mining and instructed MSHA to promulgate separate training regulations for construction including shaft and slope construction.  For the past 27 years, MSHA has acknowledged this difference.
		Some reasons why the proposal to put shaft and slope construction under existing subparts A and B is not appropriate include because shaft and slope construction workers perform work both on the surface and underground, they would have to be trained under both subparts A and B.  Would an new construction worker would have to undergo 24 hours of training at the start of the project and then another 24 hours before going underground?  For that matter, where would MSHA draw the line between surface and underground?  Would a construction worker trained under subpart A be eligible to go to work as an experienced underground miner and would a miner trained under subpart A be eligible to go to work as an experienced shaft and slope worker?
		Next, much of the training content in subparts A and B has little or relevance to shaft and slope construction.  Requiring approval of a new training plan for each new shaft and slope is unnecessary.  The projects are all similar in nature and a contractor should be able to have one training plan that it can use throughout its work at various different sites.
		Emphasis on pre-work training is not an effective way to provide training to construction workers and is unnecessarily expensive.  Forty hours or even 24 hours of pre-work classroom training at a green field site where nothing as yet has taken place in the way of construction would not be productive.  Even for inexperienced workers, the best way to provide training is throughout the term of the project so that training can be enforced by actual work experience.
		MSHA, I don?t believe, has also adequately addressed the cost significance of this regulation.  In addition to wages paid to employees for time spent in training, any cost analysis of the proposed revisions to the Part 48 must also include the costs incurred by contractors to prepare training plans, particularly if this has to be done time and again at each project.  The cost incurred by contractors to provide approved instructors, this cost will be considerable if contractors find it necessary to provide a full-time approved instructor at every shaft and slope construction site.
		The cost incurred due to turnover of employees within a company and at each project site, it is not uncommon in our business for a new employee after he?s been trained and given orientation to quit work after a couple of days once he finds how hard and difficult this work is.  This happens time and again.  A personal sign-up thinking this is going to be a good job, he gets into the work and after two or three days, he?s gone.
		If we have to provide 40 hours of training before that individual goes to work, we have to basically just eat the cost of that training.  The intangible cost of having to work short-handed before new employees can be put to work, if we?re down a man in the crew and we have to wait 40 hours before we can put a new man on that crew, the production, the efficiency, of the entire operation suffers.
		In conclusion, the most meaningful way to provide training for shaft and slope construction workers would be to proceed as originally intended and promulgate appropriate regulations under a separate subpart C taking into account the unique hazards of construction work and the way construction work is performed.  We have waited 27 years for these regulations.  I think we can wait whatever additional time is necessary to do the job right.  Thank you very much.
		CHAIRPERSON SMITH:  Thank you, Mr. Howe.
		MR. HOWE:  And the Association will submit a written statement by the deadline of September 14th.
		CHAIRPERSON SMITH:  Okay.  That?s good.   Do any of the panel members have questions at this time?
		(No response.)
		MR. HOWE:  Probably the people that come after me could better answer it anyway.
		CHAIRPERSON SMITH:  Right.  Thank you very much.
		MR. HOWE:  Thank you.
		CHAIRPERSON SMITH:  I appreciate it.  Our next presenter is Robert Pond.  Good morning.
		MR. POND:  Good afternoon.  My name is Rob Pond, P-O-N-D.  I?m Executive Vice President of Frontier-Kemper Constructors of Evansville, Indiana.  I?m a mining engineer.  I?ve spent my entire working life in mining of tunnel.  I?ve been a miner, foreman, superintendent, project manager and an executive at various levels.  It?s been said I?ve been promoted to where I?m harmless.
		I have more than 43 years of experience, including 32 with my present company.  We really applaud your desire to make the working environment and the workers safe as possible.  We?ve been in business for a long time and we know the human cost of accidents firsthand.  So we share a moral imperative to place the health and safety of our workers above everything else.  We come to you in that spirit.  We don?t differ with you in the goal.  We think there?s a better way to get there.
		We?re a heavy contractor and we specialize in shaft sinking, tiling, slope driving, raised boring, wasting system insulation and related work.  Not only are our clients private mining companies, but also public entities.  They?re coal, copper, salt, lead, zinc and industrial materials mining companies and the public entities building water, sewer, highway, railway, subway systems.
		Our company dates back to 1906.  We?ve been in the tunnel business ever since.  In the 32 year modern history of the company, we?ve completed over 250 underground contracts with a value exceeding over $4 billion.  This entails 95 miles of tunnels and slopes ranging in length from a few hundred feet from to more than six miles and 26 miles of shafts and raises to as deep as 2200 feet.
		Projects vary in size dramatically.  Sometimes it takes a few weeks and sometimes several years to complete.  Our work is regulated by OSHA, by MSHA and often by other Federal and state regulatory bodies.  Some of our work force is open shop, but the great majority of our work force is represented by the UMWA (United Mining Workers Association), Labors International, International Union of Operating Engineers and other unions.
		Unlike a mine which can be expected to continue working on a more or less continuous basis for decades, our contracts require us to complete the work within a fixed time schedule with significant contractual penalties as well as substantial added costs if we are late.  Almost always, we?re required  to begin the work within a very short time after entering the contract.  There we are unlike a mine.   The time required for training becomes a significant part of the time we are allowed especially on smaller short-term projects.
		We?re an advocate of training, not only for new hiring, but continuing training for all employees.  I have served for several years as the co-chair of the Labor?s Union, Tunnel Training Advisory Board, a body that makes sure that those laborers who work in shafts and tunnels, also called sand hogs, receive proper safety and task training.  Members of our engineering department present training classes and shaft and slope wasting systems to entrance inspectors of the academy in Beckley.
		Training not only enhances safety performance, but also fosters efficiency and productivity.  But for those desirable results to be obtained and to make it more cost effective for the employer, we believe training must focus on the work that the employee will actually be performing in the conditions that actually exists in his or her workplace.
		The basic work of shaft sinking and tunneling and the hazards such work presents is essentially the same regardless of the purpose to which the facility will be put.  Sinking and lining of  ventilation shaft for a coal mine entails exactly the same processes, equipment, supervisory skills and work force as it would if the shaft were to become a ventilation shaft for a long railway tunnel.  The geology including groundwater, innoxious search for explosive gases usually encountered in the rock and soil over underlying coal beds can and often are encountered in shafts and decline tunnels constructed for other purposes.
		In our company, every newly hired employee regardless of assignment and past experience immediately receives eight hours of orientation and general training in hazard recognition and action and prevention.  While regulations require specific training, that training is also provided.  All newly hired employees are drugged tested.  Test results require at least one full day in urban areas with nearby labs and can require up to three days in rural locations.  Employees are not permitted to work until passing a drug test.
		Even in areas of chronically high unemployment such as the coal fields of Appalachia, we commonly experience double digit turnover rates.  Wages and benefits for underground construction are comparably high.  Although some newly hired workers soon quit because the work is wet, cold and dirty, the primary reason for employee turnover is mostly societal and vary according to region.  High turnover remains a continuing factor and a concern.
		Because of turnover, it?s often necessary to fill gaps in crews.  So new employees are given the initial eight hour FK training and the eight hour MSHA 48 training if they need it before drug tests are known.  Task training is applied for the first assignment and at any subsequent time when the employee is asked to perform a different task than the ones for which he?s already been trained.
		MSHA has proposed that the shaft and slope workers be required to complete training under both subparts A and B of Part 48 which in essence would require a newly hired miner without prior entry training to be given as much as 64 hours of training  before going to work.  Now we realize there is some confusion about whether it?s A and B or A or B or whatever.
		The course content in those is heavily weighted toward employment in a producing mine.  These persons are being hired for construction and much of the 40 hour part B mandated course content is neither relevant to that work nor useful to a shaft and slope construction miner in performing his job safely.
		While the purpose of this testimony is not to criticize but to work toward a better result, we note that MSHA?s prediction of added cost is grossly understated.  The amount predicted for the entire industry, $195,000 annually, is barely enough to train about 90 people for 40 hours including wages, benefits, training instructors and materials.  Our typical turnover along requires training eight to ten people a month.  So the predicted cost would not quite cover just us let alone the entire industry.
		MSHA?s presumption of prior training ignores typical turnover rates and MSHA also presumes an employment size for contractors that is unrealistically low.  We estimate the probable impact on the industry is between $1 million and $2 million annually.  I might add that you?re looking at the majority of the shaft and slope industry sitting in this room.
		MSHA has proposed a new training plan be approved for each project and be submitted two weeks in advance of beginning work.  This compounds the cost impact to no associated added benefit.  Approved trainers may not always be available when needed with attendant further delay.  A basic training plan should be approved for each employer valid for all locations.
		MSHA also requires that ?shaft and slope construction contractors or mine operators and their contractor workers are miners.?  Even though the law  uses that nomenclature, this is simply not the case. 
		Shaft and slope contractors especially in the coal industry do not operate producing mines and do not perform the actual extraction of minerals which is the definition of mining.  The primary reason that said contractors  exist is that the mine operators do not have the expertise, equipment or workforce with the appropriate knowledge.  If they did, they would perform such work themselves.
		Stepping outside of my written, I notice you mention that conventional mining methods are sometimes used.  That is exceptionally rare and it has failed every time it?s attempted.  It?s not a reason to do anything.
		Unemployed coal miners do not usually seek shaft and slope jobs nor do shaft and slope workers usually seek coal mining jobs. There really isn?t much transfer between the two occupations.  We also note the fatalities referenced in MSHA?s proposed rule  which includes that the hazards for shaft and slope construction are ?generally no different from hazards faced by all other underground or surface miners and the shaft and slope construction workers perform a number of tasks that are similar to or the same as tasks performed by miners already covered by Part 48 training.?  We assert these conclusions are only superficially correct and do not establish a reasonable basis for requiring shaft and slope workers to be trained for work in a producing mine.
		Our corporate safety staff and I assisted in formulating ABCs suggested training format which we will submit to you by the 14th and it will address the specific needs of shaft and slope construction workers while not unduly burdening the contracting employer or the ultimate payer, our customers.  Subsequent testifiers will provide you with more detail.
		We urge you to postpone this action and instead concentrate on finally promulgating subpart C which was intended to specifically cover mine construction and has never been completed. We?re hopeful that you can proceed to work with us to create a more focused and practical training environment.  Thanks for your willingness to listen to me.  I am finished.
		CHAIRPERSON SMITH:  Questions of Mr. Pond?
		(No response.)
		CHAIRPERSON SMITH:  Thank you very much.  Our next presenter is John Moore.  Is this a good time or would you rather ?
		MR. MOORE:  No, it?s fine.  Good morning.  My name is John Moore, M-O-O-R-E.  I am Vice President of Safety and Human Resources for Cowin and Company, Incorporated of Birmingham, Alabama.  I have 17 years of experience with Cowin and Company.  I?ve held various positions including project manager, purchasing manager, job site safety inspector and the last 12 years as Director of Safety with the last five also being an officer of the company as Vice President.
		I?m glad to be here today.  This is something that is important to me.  I?m heavily involved in our training programs at Cowin and it?s nice to be able to come up here and share with you all today.  I am here representing Cowin and Company.  We?re a mining construction company that performs work  on the surface and underground.
		Although we do perform many construction surface to the mining community, our core business has always been the construction of shafts and slopes. Cowin and Company has been building shafts and slopes for the past 80 years beginning in 1924.  We?ve completed over 2,000 shafts and slopes in that time.
		We have the capabilities of a constructing shafts by means of convention drill and blast methods or by raised drilling which I would like to address a little bit later in my remarks.  The 80 years Cowin has been in business, we?ve completed these 2,000 jobs with contracts of hundreds of millions of dollars.
		We work all over the country in all types of mines.  We?ve worked in coal, zinc, gold, silver, salt, gypsum, lead, copper and aggregate mines.  Depending on our work load, we usually fluctuate between one and 300 employees.  Our shaft and slope projects average between 22 and 25 employees per site, keeping in mind the bell curve that Mr. Howe mentioned earlier which you start slow and then you build up and then you wind back down.
		The project starts usually with one crew to mobilize and get the shaft ready for construction including constructing the head frame and the hoist to allow permanent sinking operations.  Then you increase your crew size actually by adding shifts to make it generally a three shift operation which would operate 24 hours per day with usually seven or eight people on a particular crew.
		The duration of these projects depending on the size would range between six and 18 months.  Raised bore projects usually would have smaller duration and have smaller crews.  Crew size of a raised bore job would generally be about six people and their jobs usually run from one to three months in duration.
		I want to talk a little bit in my remarks about raised drill.  It?s been my experience that of all the construction services we offer that the least understood in the mining and regulatory agencies is the raised drilling.  It is with that in mind that I would like to offer a brief description today of the methods used in raised boring a shaft and well as some background on our involvement in this method of shaft construction.
		In 1987, Cowin and Company purchased Raised Bore of Durango, Colorado, a company specializing in raised drilling shafts.  Raised Bore still operates to this day using their own name, but is operated as a fully-owned division of Cowan and Company.  They work literally all over the country and their workforce moves from project to project.
		They would be the definition of what is known as ?tramp miners.?  They literally have campers and they pick up from one site and go to the other.  They could working in Southern West Virginia today and could be in New Mexico by the end of the week.  That very often is the way they work.
		They work in all types of mining, on the coal side, on the metal/nonmetal side, a lot of work in the aggregate industry, civil.  Sewer tunnels in the large cities has been common for Raised Bore to be doing ventilation shafts into.
		I just would appreciate you indulging me to go over the methods involved in raised boring construction.  As brief as I can, I?ll give you an explanation.  Raised boring is the technic used to mechanically excavate a large diameter shaft into an existing underground opening or to install a shaft between levels in an existing mine.
		Raised boring has also been used in other varying applications such as the installation of pen stocks and search chambers for dam construction projects, man ways and drop shafts for several water and sewer projects, elevator shafts and the like.  These machines not only have the capability of excavating vertical shafts, but also have the capacity to excavate dip angle shafts back to 30 degrees from horizontal.
		Raised boring equipment is very small and compact as compared to the equipment used to conventionally sink a shaft, to blind bore a shaft or equipment used in the oil field industry.  The typical size of a raised boring machine is approximately six feet wide with a length of six foot and fourteen feet of height with an upward thrust capability of 250,000 to 1,300,000 pounds and available torque range of between 38,000 to 365,000 foot pounds.
		The typical raised drill system is made up of four major assemblies:  the berk (PH) assembly which is the machine itself; the hydraulic assembly which provides thrust; the electrical system assembly which provides electrical power to the main drive motor which in turn provides rotational bore; and the dependent control assembly that controls the operation of the machine.  The system also includes accessory equipment such as the drill string, pilot bits, ramming heads and cutters and miscellaneous hand tools.
		Okay.  In the construction of a raised bore shaft, first you would have a pilot hole which is drilled down into the existing mine.  Once the equipment has been erected on support beams over a proposed shaft site, the pilot hole, drilling operations begin.  The typical pilot hole drilling medium is a compressed air, water and drill foam mixture consuming less than five gallons of water per minute.  This mixture is used not only to remove the pilot hole cuttings from the pilot hole as drilling progresses but to control and suppress dust during the drilling operations and to reduce frictional torque within the pilot hole.
		The typical drilling tools consist of a pilot bit ranging in size from 9-7/8 to 13-3/4 inches in diameter, a pilot bit sub, drill string, stabilizers ranging in size from 9-7/8 inches to 13- 3/4 inches in diameter by 60 inches end to end and drill rod ranging in size from 8 inches to 12-7/8 inches in diameter times 60 inches to end to end.
		Then after that hole has been drilled down into the mine, then a cutting head has to attached at the bottom of the hole and that requires the workers to go into the mine itself in the area that?s already been prepared by the mine for the raised drill shaft and attach the cutting head.  This would usually probably take two 12-hour shifts and that would be their length of time spent underground.  The rest of the time is spent on the surface marking the drill, putting on drill steel and monitoring the operation.
		After the raised head has been pulled from the bottom to the roof of the underground opening, all personnel are then removed from the area and the reaming of the shaft begins.  The reaming of the shaft is accomplished by applying thrust and rotational speed from the machine through the drill pipe to the reaming head.
		As the reaming progresses, the ream cuttings fall to the bottom of the shaft and are removed through the use of a loader operated by the customer?s underground personnel.  This operation continues until the reaming head breaks through to the surface at which time the equipment is removed and the shaft is complete.
		In regards to training Raised Bore people, I must admit that in early years after we acquired Raised Bore we tried to train them much like we train our conventional shaft crews or underground crews and I found that Raised Bore crews to be somewhat bored and uninterested.  In asking them what we could do to improve their training experience, they unanimously wanted more discussion of things that involved their work.
		They wanted to talk about preventing accidents, lifting procedures, pinch points, rigging, things that worried them day in and day out.  They weren?t really interested in the job of a coal miner.  They wanted to talk about what raised boring construction workers or shaft and slope workers do and how we can help them do their job more safely and productively.
		As a result, we made those changes.  I can?t tell you how much I valued the time together with those people because we really do spend the time talking about the issues that affect them day in and day out.  We?re not required by law to do this, but we do it because it is the right thing to do for our workers.
		So I would say today that training like that is about quality not quantity.  Our concern about the proposed rule is that what we?re talking about is  taking people out and putting them in a classroom for 40 hours before they come to the site.  Where a lot of good things can come of it, this is a large burden on small crews to have to lose people.  Like a raised bore crew will have three men on it.  Three men, you lose one of those guys.  You?re hurting to the point almost of having to shut down.
		You would be in a remote site where you?d have a hard time getting someone to begin a 40 hour class.  Not to mention the fact that if you can accomplish that, most of the time for one person, that would be somebody that you would contract to do that kind of training.  So you?re having somebody train the people.  You?re going to come up with a completed 5023, but I submit to you all that we?re talking about quantity not quality.  It would meet the letter of the law, but not the spirit of what we want for successful and productive training.
		Raised bore has a core workforce, but positions such as drill helpers are hired locally as needed.  Crew sizes are small and cannot afford to be short-handed.  The turnover rate is not as high as conventional shaft sinking, but the proposed rule really would affect raised bore?s labor adversely because the jobs are short in duration and if someone quits or leaves, they can?t be replaced without going through the new miner training which by the time you get that done, you spend some time with the site, the job may be winding up towards or getting towards its conclusion.
		A lot of those people are brought up locally.  We feel good about the way we task-train people that we bring in and we show them.  These people are not just brought in and as they say, thrown to the wolves.  They are guided through every step of what they?re doing by experienced personnel.  They are properly task-trained, shown the hazards that they are going to be exposed to and signed off on by new task training with a 5023 to document.
		As far as raised drilling and its conventional shaft goes in terms of training, I would just like to say that we do not believe long hours in a classroom learning someone else?s job benefits the construction worker.  We believe that we can train them.  We do think that they do need an orientation before they go underground or start on a project.
		Our general way of doing that is to give them an eight hour orientation in a classroom type setting before they go underground going over the items that basically are required under subpart B of Part 48, cover the high points there, and then we try to also incorporate into that the shaft and slope hazards and the things that they are going to encounter by doing their job.  Then we bring them to the site, do a complete walkaround with them and show them the things that we discussed in the classroom.  We found that to be effective and it works.
		While I agree that training is a good thing, I would state that we believe that it would be best to complete subpart C as opposed to subjecting workers to subparts A and B, in other words, treating them like coal miners or hard rock miners.  They have unique jobs and we submit to MSHA today that they should be treated as such.
		Cost of training shaft and slope workers, we do have an approved training program.  This describes how we do our training under subparts A and B of Part 48.  Subpart C is not covered in this plan because for the past 26 years, it has not existed.  We?ve offered this eight hours of annual training in the classroom and new task training on the job sites. 
		We?ve reviewed our shaft projects over the past several years and found our employee count is of 24 employees.  Sixteen of these, and I?m just taking averages here, employees would work underground and eight on the surface, although they are interchangeable.  But at any one time, that?s how it would roughly break down.
		Turnover rates are almost exclusively amongst underground workers.  A typical shaft would require 40 employees over the life of the project.  The turnover ratios range from two to three to one.  In other words, for every guy that makes it, two or three don?t.  This work is very labor intensive.  It?s hard work and although people often think they want to come for the wages once they get into the environment, they often change their minds.
		At the present, the cost of training 40 men times eight hours in training times a base cost of about $32 an hour would come to $10,240.  Under the proposed rule, the cost would be divided out is for 15 stable employees would still get their eight hours at a cost of $3,840.  Add the cost of training 25 more workers saying maybe that ten of those would be experienced miners that you could get by with eight hours on at a cost of $2,560.
		Then 15 workers would require new miner training at a cost of $15,360.  The total cost on that shaft project of training 40 workers goes from $10,240 to $21,760.  The cost of training doubles and that does not include the additional cost of lesson plans, facilities, instructors or travel costs.  I wanted to point these costs all at just a typical model.  There will be extremes both ways.
		Much of our training is coordinated and done from our corporate offices which are in Birmingham, Alabama.  We do not have certified instructors at all projects.  In other words, it?s not like a coal mine or a zinc mine or a gold mine that have those kind of people onsite ready to train people whenever needed.  It would really involve having to get to a location or either hire it done by another contractor.
		These kind of people, especially that understand the construction business, my experience has been that they are not just readily available.  You can find people that can conduct training under the letter of the law and complete a 5023, but once again, I come back to this would just be quantity.  It wouldn?t really be quality training that would benefit the worker.
		A final thought on cost of the proposed revisions, we believe the costs that were estimated, I believe $161,000 to the industry, we believe that is vastly understated.  We could easily incur close to $161,000 in added expense ourselves much less to the industry as a whole.
		Suggestions, we want to be positive about this.  We really want to work with MSHA on this and to make a better training solution for our workers.  We ask that you realize that construction workers are unique and should have their own training.  We believe that subpart C should be completed and implemented.
		In regards to training plans, one training plan should apply for a whole company.  We believe we can provide adequate orientation with eight hours before a new hire starts work and that we can even give hazard and new task training at the site.  We believe we can cover the items that they need to have in that time, but we are definitely open to suggestions of how additional time could provide productive training for the workers.
		Another item we would like to see in place is that other contractors training should be permissible because it?s very common in the industry if you go into different areas to hire workers that have been employed by their contractors.
		The proposed rule while good in spirit would actually not improve training in our opinion.  It will have a large price tag and will be providing long hours of training for jobs that construction workers do not perform.  We ask that MSHA consider what training is being provided despite a not-firm regulation.
		The people that are here today all will explain that training is being provided.  It?s not regulated that way but it?s being provided and we all do understand its important and its place.  Let?s provide the workers the quality training they need, not just quantity.  Thank you for your time.
		CHAIRPERSON SMITH:  Thank you.  Any questions?
		MEMBER McLEOD:  I just have one comment.  The three of you have said this and maybe what we said in the preamble wasn?t clear, but it?s always been our anticipation that there would only be one training class, the contractor, just like other independent contractors.  There wouldn?t be a different training plan for each shaft and slope job you were doing. We may not have said that clearly, but that was always our intention.  All three of you said that so I just wanted to make sure you understood.  We only thought it would be the same as any other contractor.
		MR. MOORE:  So we would just have to make a training plan for shaft and slope workers or would it be a supplement to our other training plan?
		MEMBER McLEOD:  If you already have an MSHA approved training plan assuming that was adopted as is or similar to this, you wouldn?t need another plan.  The idea of a training plan is that there would be lots of room within it, hazard recognition.  You talked about things that would germain to raise mining.  Certainly under hazard recognition, you could funnel whatever was appropriate to that particular job or task into the components of Part 48.  So you wouldn?t need a separate training plan.
		MR. MOORE:  Just a supplement.
		MR. MOORE:  You probably would need a supplement, but you would probably want to have lesson plans.  As an training person would want to do, that would be applicable.  You talked about quality of training which we?re very big on and certainly 48 is a container that all sorts of types of training could go into.  We?ve always felt that it was incumbent the companies to identify what they needed to fit into the existing Part 48.  So, yes, one training plan.
		MEMBER PHUC:  I have a question.  If I can get data on the cost of compliance because you have stated that we have underestimated a lot of the cost here.  If I can get that, have that submitted to us, so we can review it over the cost estimate again.  That would be great.
		MR. MOORE:  All right.  I would be glad to do that.
		MEMBER PHUC:  Thanks.
		CHAIRPERSON SMITH:  I also would like to  make the same request of Mr. Pond.  You indicated in your comments an estimated $1 million to $2 million.
		MR. POND:  Yes.
		CHAIRPERSON SMITH:  If you would like to submit any additional information on those calculations for the record, we would appreciate that.
		MR. POND:  I certainly can.
		CHAIRPERSON SMITH:  Okay.  Mr. Moore, I had a question.  You talked extensively about task training.  Could you give us a general sense about how you go about determining the amount of task training needed and when it?s actually needed?  You had very specific requirements for orientation.  Eight hours, you said.  Then you do the task training thereafter.  Do you have a structure of criteria for determining task training that?s needed?
		MR. MOORE:  Well, we have to look at the  job that they are being trained to do and you have somebody that goes over the items involved in their job and what hazards to look for while doing that job.  For example, if they?re removing drill pipe or something like that where their hands can get into pinch points and things like that, we show them and we make sure that they understand that they have to be wearing gloves and what is their safety equipment that?s required and what is hands-on training to their job by an experienced person which would usually be a superintendent or a foreman, a supervisor type of person, somebody that can walk them through A to Z what they are going to be doing and that would feel comfortable.  Task training may not be signed off on in a couple of hours.  It may be several days before that supervisor is comfortable signing that new task training form that they know and can complete their task safely and productively.
		CHAIRPERSON SMITH:  Thank you, Mr. Moore.  We appreciate that.  The next presenter is Alan Zeni.
		MR. ZENI:  My name is Alan Zeni.  I?m Vice President of Shaft Drillers International.  I?ve personally been in the shaft drilling business since my father and brother started Zeni Drilling in 1971.  So since that time, I started out at a laborer, driller, truck driver, shift superintendent, project superintendent, operations manager, the vice president and president of Zeni Drilling until January of this year which at time, I became Vice President of Shaft Drillers International.
		Shaft Drillers was formed by the principals of North American Drillers and those are Mr. Bill Maloney and Joe Swagger.  Shaft Drillers purchases Zeni Drilling Company and all the assets of Zeni PTY Limited in Australia and has basically merged their resources and personnel in North American and Zeni Drilling in their entirety.
		Shaft Drillers International is now the largest and most proficient blind shaft drilling company in the world.  We don?t do any raised boring or convenient sinking.  Our work is very specific.  It?s generally all done from the surface.  The shaft is drilled into the solid coal or the ore body whatever it may be.  We use a drilling rig similar to an oil field rig, but it?s unique in that it can drill diameters up to as much as 20 feet.
		The Shaft Drillers companies together employ over 100 people.  We have a lot of disciplines, welders, mechanics, drillers, crane and equipment operators, engineers and project supervisory.  We have certified electricians, certified examiner foreman and licensed crane operators.  We, as with my colleagues here, also have a fairly high turnover rate for the lower level jobs, unskilled and semi-skilled.
		Just a typical blind shaft drilling project will last anywhere from maybe three to six months depending on the depth and the diameter.  Most of our work is in the southwestern Pennsylvania coal fields, northern West Virginia, southern West Virginia, Ohio, Kentucky and Illinois.  We?ve drilled shafts in the west, Colorado, Wyoming and in Virginia, South Carolina, also in foreign countries, Australia, New Guinea and France.
		A full compliment on one shift of a typical project is three to four people.  It?s very similar to the raised boring requirement.  But three or four people includes the supervisor/driller.  Usually on a shift, it?s the same person.
		Just to go quickly through the steps just to explain how the work is done, the surface site is prepared by the owner.  They construct an access road and prepare graveled area about 150 feet square and a cuttings pond about 200 feet long, say, 75 feet wide and 150 deep.  They also provide power most of the time that step down to 480 volt, three phase, at about 800 amps.  If the power isn?t available, we?ll provide generators to produce our construction power.
		The first step we make on the site is to excavate a surface hole 17 to say 20 deep and we do this with a hydraulic excavator.  If we hit any solid rock, we break it with a hydraulic hammer on the excavator.  We don?t have any people in the hole while we?re doing this.
		We dig the hole out and set a steel casing into it down onto the rock and then pour concrete around the casing.  It leaves a dry cylinder right down to solid rock.  Then we form up a foundation pad for the rig to sit on and pour it around that surface casing.  That pad is around three feet thick and say 24 feet square.
		I just went through some of the hazards during different phases.  In this phase, of course, there?s pinch points on the excavator, rough ground because of all the excavation.  There?s an open hole.  There could be excessive noise and concrete burns, eye injuries, that type of thing.
		We then set the drilling rig up on the pad and our rigs have an A-frame type mast.  It?s about 100 feet high.  We bolt the legs of the mast down to the concrete pad and set a hoist and use the hoist to raise the mast into position.  We fasten back legs to the top of the hoist unit and those back legs have hydraulic cylinders that allow the mast to boom out beyond the shaft and pick something up and lower it into the shaft without having to use a crane.
		But we do have onsite a 30 ton hydraulic rough drain crane that we use for all other utility lifting and again we?re looking at pinch points, heavy equipment, mobile equipment, working at heights, crane handling, crane loads, pressurized hydraulics, compressed air.  Then the rest of the equipment we need is a compression, 150 PSI, about 900 CFM, ten inch electrically driven water pump, rotary table and it?s hydraulically or electrically driven, hydraulic power unit and usually a loader or a forklift and the crane.
		Again we drill a pilot hole from the bottom of the surface casing. We center up a pilot hole bed in the bottom of the surface casing and drill it down to the coal scene.  We use water to circulate and we draw water across the face of the bed and bring out cuttings.
		We can rotate the rotary table up to about 50 RPM during this phase and we use weighted drill cars and break the rock and wash it out with the water circulation.  Then the chips are put in the pond where they settle out and then the water is recirculated back into the hole to be used again.
		The reaming process is a large diameter cutter head again with heavy drill collars on it and it is designed to follow that pilot hole.  It is lowered in there and rotated again and a similar method of circulation is used for that.  The chips are brought out and deposited in the pond.
		We keep the shaft full of water during all these phases.  Of course, there?s a hazard of falling into the hole or the pond, both of them filled with water.  Again heavy tools and there?s a lot of lifting and pulling and handling heavy items and on very rare occasions, there could be methane that comes through the water, but it dissipates almost immediately in the air.
		The next phase is we line the shaft with a steel cycle, a steel tube.  That?s prefabricated.  We bring it to the site and weld it together.  All this takes place on the surface and lowered into the hole.  When it?s fully welded, it covers the entire shaft from the surface to the top of the scene.  Then we fill the space between the casing and the hole with cement.  That?s also done from the surface through  trimming pipes.  When the casing is in place and cemented, the shaft is dry right to the mine level.
		The last step is that we pump the water out of the inside of the casing and leave the casing dry.  With casing operation, of course, there?s all the welding hazards, flash burns, the noise and the flumes, crane work, electrical equipment, shock hazards, abrasions, grinding abrasions, cement and chemical burns.
		The hole stays full of water, of course, until the casing is finally pumped out at the end.  A solid barrier of coal at least 100 feet is required to be maintained underground until the shaft is dewatered.  At that time then from underground, the miners cut under the shaft and they encounter a cap at the bottom of the casing that?s bolted on.  So they will take a plug out and let the remaining residual water out of the bottom of the casing and then unbolt the bolts and take the cap off.  So consequently we have no people underground normally on a project.
		Our training program is the same as most others.  We do eight hours of initial training and eight hours of annual training and 16 hours of on-the-job training similar to what you?ve heard from other people here.  We focus the training on the surface like the material handling, heavy equipment, mobile equipment, electrical safety.  We do methane detection and we also focus on health issues such as back injury prevention and noise and dust control.  Hazards like pinch points, eye injuries, tripping, weather related hazards.
		We normally work at a remote site.  We  never interact with the mine at all.  We very seldom have occasion even to go to the mine site.  The only time most of our employees ever get to the mine site is to go there for the initial hazard training.
		We also feel that our slope and shaft contractors should have their own training rules as in subpart C.  We have been working on a training program with the WBU mining extension that is focused on our type of work.  I think I?m basically finished.  Are there any questions?
		CHAIRPERSON SMITH:  Are there any questions of Mr. Zeni?
		Would you be willing to share with us what you have worked on with UVA?
		MR. ZENI:  Yes.
		CHAIRPERSON SMITH:  We appreciate that.  We would like to submit that.  Thank you very much, Mr. Zeni.  We appreciate it.  Our next speaker is Murray Johnson.
		MR. JOHNSON:  Good morning.  I welcome the opportunity to be here.  My name is Murray Johnson, J-O-H-N-S-O-N.  I represent R.G. Johnson Company.  I?m the Vice President of Operations for them.  They are located in Washington, Pennsylvania.
		Basically I spent a lifetime with some of these other individuals in underground construction.  The last 16 years I have been employed by R.G. Johnson Company, Incorporated as the Vice President.  We?re a small company.  We do about $12 million to $15 million a year.  We wear a lot of different hats.  So through my career, I have done a lot of different things.
		Prior to R.G. Johnson Company, Inc., I had a family company, V.R.G. Johnson Company, which has a history dating back to 1916.  It?s a family company.  Since 1988, the new company took over.  We have done more than 37 conventional shafts and over 685 underground mine projects.
		We work primarily in a small region relative to some of these other contractors here today.  We work in Western Pennsylvania, West Virginia, Ohio, and Virginia.  We have about 120 employees working for us.  Our core business is conventional shaft construction.
		However, we do carry a separate group of people who do a lot of associated underground mine construction projects such as shockcrete work, installing belt drives, pumping concrete long distances, that kind of thing.  Also, that group does a lot of maintenance and repairs in existing shaft facilities.  They do some structural work underground installing shafts and things like that associated with belt drives and whatnot.
		Basically what I want to do here today is first say that we, like the rest of my colleagues here, as a company promote training heavily.  It?s very important to the livelihood of our business.  Safety has to come before production comes.  So we applaud the effort at trying to formalize what training should be required.  Although we?re not a member of the ABC, we do share their position that the proposed rule may not be the most effective method to accomplish that.
		Before I get into what we do for training and some of the things about the proposed rule, I would like to take a few minutes and discuss and share with you the conventional shaft methods and operations and talk about some of the hazards.  First and foremost, every project that we look at is a capital project for a mine installation.  What does that mean?  It means that we?re on a fixed price usually at a limited time schedule.
		We?re there for a purpose of construction which means the installation of some type of facility instrumental to the mine extraction process.  We do not mine coal.  We do not get paid to mine coal.  We?re there to construct a facility of some sort for the use in the mine environment.
		To digress a little bit and talk about conventional shaft sinking, basically there are projects that last eight to 12 months.  They are always in remote locations.  They are separate locations from the mine environment.  In other words, the mine?s transportation system, their housing system, their offices, we?re always two, three, five, eight miles away from them.  There?s an independent path location where we have our separate utilities.
		So basically all of the site preparation, power and whatnot is typically set up by the mine owner.  We take control of that work area as our independent area.  So I?ll digress into the training on that aspect, the idea of us taking control of an entire area.
		Basically our employment does, as Hank said here a few minutes ago, go in the form of a bell curve.  That is, initially when we are mobilizing, we have a few people on the job to accomplish the erection of our plant and equipment.  Then as we get set up and get prepared to install the shaft, we increase our staffing in numbers and in shifts.
		Basically in the conventional world, we primarily use hoists and stiff leg derricks.  There?s most always two of those derricks on the property.  Some of the other contractors in the room typically use a head frame installation and a work deck, two different types of methods in the conventional market.
		Basically we also use compressed air.  There?s generally 1,200 to 1,600 CFM of compressors on the facility.  We have jumbo drill rigs on the facility for blasting purposes.  I?ll go into that in a minute.  We also have backhoes and imcoes (PH) for mucking purposes.
		All of this equipment is brought in during the mobilization phase and set up.  There?s a whole logistic associated with that.  Also, concrete plants are on the surface.  So basically during the mobilization phases, we are taking the power, electricity and developing a network on the property and we?re responsible entirely for the safe operation installation of those facilities.
		When you take this equipment and apply it, basically a conventional shaft consists of collars.  That?s a soft ground area where you go from the surface grade down to a hard rock strata.  Then you move into the typical section, the distance between the collar and the mineral to be mined or the coal scene.  There?s also water rings that are constructed along the way.  Then ultimately you would move into the bottom section and develop that.
		Now, within each of these areas of a shaft, our work cycles back and forth between excavation and lining or concreting.  So in the collar section, we begin excavating with backhoes.  As we advance toward a harder strata that can?t be dug with a machine, we then drill it with our machinery in vertical patterns, D-cut patterns for the purposes of shooting it and blasting.
		So blasting is something that is integral to the entire process pretty much from the surface to the coal scene.  We blast very often and in very specific drill patterns.  We have specialized equipment.  We have jumbo drill rigs that are pneumatic.  They are operated with compressed air and very specific controls on those equipments.  We have very defined patterns for productivity and proper excavation and that kind of thing with our drill rig.
		Blasting is an integral part of it.  Basically during excavation cycles on a norm, we?re blasting everyday for about a four day period, once a day type of thing.  You drill.  You blast.  You muck.  Muck is the removal of the rock from the shaft area.  You create open space to install a concrete liner.
		The mucking process, you are in a very confined space.  Our conventional shafts are as small as 14 foot in diameter.  They are as large as 26 to 28 foot in diameter.  You have your crews down there in the hole, so to speak.  That?s the distinction between conventional versus blind or raised drilling.  All of our men, materials, and equipment are taken from the surface, taken underground to do the work needed at the time in the cycle, and then it?s removed and you move to the next phase.
		We are what I would call a sequential construction company.  In other words, you have to drill and blast before you can move on to muck.  You have to excavate a certain distance before you get into the lining of the shaft.  But you are working in a very small work area.  You are exposed to the rib, a vertical rib in our case.  Our cores are about 34 vertical feet.
		We employ a lot of shockcrete as a matter of safety so that we maintain proper stability of the rib.  Water control is also an important part of safety and productivity.  But you are operating backhoes and imcoes (PH) in very small areas to load rock into buckets to be conveyed to the surface.  Then this rock is loaded on the surface and hauled to a spoiler haulage area.
		Moreover, for a given excavation cycle - and I referenced four or five days - we go through the drill, blast, muck sequence probably four times before we get to a concrete cycle.  Then we?re installing concrete which involves installing corrugated sheeting as a water barrier, basically a mechanism to keep the structure dry, allow a drainage point for the water to later be collected in a water ring.
		So we install panning (PH).  We install reinforcing steel.  We install forms in the hole.  If there are utilities such as pipelines for any mine application, we?ll install those in the structure.  So you are raising and lowering all this equipment up and down the shaft.  It?s a vertical operation.
		That?s one of the key points that I want to talk to you about today, whether it be a shaft or a slope.  The excavation or concreting work that we do is all a vertical application and it?s sequential in nature.  So basically to talk in general about water rings, those are constructed periodically during the depth of the shaft.
		The simple term of them is that they are a collection point to collect groundwater, to control it, to keep it out of the work area and remove it from the mine operation.  Those are put in as needed.  Again, they have to be excavated in the drill blast mechanism.  Things are shockcreted and the structure is installed.
		It?s much the same in the bottom section.  Different clients work in different ways.  There?s lots of different configurations there.  But again, you are excavating.  You are going from vertical to horizontal, typically not more than 20 feet, although there are some applications where you have to go considerable distances underground to set up a mining operation later.
		Also, following the completion of the bottom section, we get involved with the installation of a curtain wall.  Basically these are pre-cast concrete slabs or divider walls.  They are received on the surface and installed vertically up and down the shaft.  The purpose is to divide the shaft into two compartments to provide intake and return air for the mine operator at a later time.
		So basically one of the things that we?re talking about here is, we have a small work area.  We have the logistics of a sequential operation where we have receiving materials on site.  We?re utilizing them in a sequential fashion.  We operate a vertical operation in tight spaces.  There?s lots of hazards there from rib control to electricity on the surface.  We have compressed air.  We have concrete issues.
		Probably 30 percent of our work operation deals with handling concrete; installing it, finishing it, form work associated with that.  Steel forms, there?s lots of pinch points.  There?s lots of rigging requirements because of, we?ll say, the crane and lifting requirements associated with it.  Then ultimately when we?re finished with that project in eight to ten months, we pack up and go away and go to the next project.
		Some projects last longer, 12 to 14 months.  But the bottom line is, we take this operation and move it from location to location, from mine to mine.  We work for all of the local coal companies.  It?s CONSOL, R.A.G., Peabody and whatnot.  We want to stress that we?re independent.  We control our own work area.  We?re responsible for the safety of that environment.
		Basically we do get exposed to methane.  We have training and whatnot.  Methane is a common thing to coal and to our construction.  It?s in a different environment.  We train according to it.  It?s exposure in our workplace.  What I really wanted to stress after you take that whole picture as an understanding of the environment the conventional shafts are placed in is, the equipment that we use is entirely different than coal mining equipment, surface or underground.
		Hoists are Part 77 hoists for construction purposes only.  They are not Part 75 or underground hoists.  The fans and tubing are not coal mine ventilation fans.  They are rigid tubing that gets applied to the shaft liner.  We have an independent system there.  We monitor that, change that, increase that as required by the work environment and/or the law.
		Drills.  Yes, coal miners do drilling for bowing (PH) and occasionally blasting.  But the drilling that we do is entirely different from the types of cuts that we install, the type of equipment that we use.  There are nuances associated with the operation of that.  Blasting is something that we take critically to our operations.  It?s something we do regularly.
		Over the course of a shaft, we probably put off 100 to 120 blasts.  The process of loading and shooting is something that the construction worker in our field does regularly and has to learn that process.  We?ll get into this a little bit in a few minutes.  We get into the certifications and training of those people to perform those tasks.
		The mucking, the removal of a rock.  Again, it is not typical of a mining task.  It?s loading rock into buckets and taking it to the surface and loading it with different equipment and hauling and storing it onsite or away from site as directed by the coal operator.  Basically coalcreting, that speaks for itself.  We?re installing a structure basically.
		The forms, the scaffolds, the work decks, the buckets, those are not typical equipment used in either surface or underground mining.  They are construction facilities.  Basically when you move from what a job looks like to the type of equipment used, when we staff our projects, we carry panel.  It?s based on seniority and qualification.  These guys are going to a specific project location for anywhere from six to 18 months.
		They are small crews.  They are five to seven people per crew in a conventional application.  We also work, when we?re fully staffed, a 24-7 operation.  We work three crews.  It?s basically four crews.  We work around the clock.  Just to reiterate, it is a sequential operation.  In other words, a crew coming on might find themselves for two or three weeks drilling and in the excavation process.  It might be a month before that crew comes back and is actually involved in the concreting process.
		But due to the sequential nature of the work, one key point is, our workers do the tasks that require it at the time that they come onto the project which means they may be on the surface or they might be underground.  If we?re on a drill shift, the guy might be going underground to drill around.  If we?re on a mucking shift, he might come outside and dump buckets or drive a truck to haul rock off the hill.
		So every person, due to the small staff that we employ on a per crew basis, has to have the versatility to be able to do the job wherever it is, surface or underground.  Basically the general characteristic of our crews is from a certified versus a new worker range.  Probably 60 percent of our crew on average are certified or qualified in some way.
		Hoist runners, we have our own training plant developed to certify hoist runners.  It?s basically a 40 hour operation plan after one year of service working in and around that hoist.  We developed that on our own primarily because it wasn?t clear to us what the regulations had about that.  We developed it based on our own methods and application.
		We also get into blaster certifications as well as mine foreman and so forth, electricians as well.  So on a given crew, between hoist runners, blasters, mine examiners and so forth, probably 60 percent of our crews have some sort of certification that has required experience working in the field for an extended period of time before they can get those.  We go through all of the refresher training and continuing education for those positions.
		Forty percent, two or three people, depending upon the crew size, can be laborers or would fit the ?new employee? class.  It just gives you a picture of our workforce, how we work, and some of the conditions that we work in.  All of it is very different than a surface or underground extraction process.  The equipment is different.  The people are different.  They are asked to do different skills.
		We submit construction plans for every shaft that we do.  It?s a separate part of the regulations.  Yes, it?s under surface, but it?s a separate part of the regulations that deals with the scope of our operations.  It defines what we do and how it is.  It basically becomes the law of our operations and how we do things.
		Again, it?s distinguished from the mining operation by the very need to submit a plan in the first place.  Also, the state and local authorities that we work within, there?s a very clear distinction between miners and shaft and slope workers in terms of the certifications and what they do.  Shaft and slope examiners versus the mining examiners and/or blasters or underground.
		But integral to successful operations is safety first.  We do do a lot of training.  In the shaft and slope world, we don?t have - we?ll say - an approved training plan but we do hazard training.  We receive hazard training by the mine operator.  We do it ourselves when the worker first comes onto a property.
		We have weekly safety meetings for crews starting there, about 15 minutes long just to talk about new topics.  It?s an open forum for our employees on the project.  We do annual refresher training, although it?s not required, via the nonexistence of Subpart C.  It?s the right thing to do.  I heard that comment earlier.  I agree with it.  We have always done it, but it?s not done under the forum of the training plan.
		We also have all the certified and qualified people that I spoke of.  They go through the appropriate training and retraining.  That?s the hoist runners, the electricians, the blasters, the mine examiners.  All those people continue their certification through training and retraining.
		What we have done on the shaft side of things for new employees is in fact give them eight hours of classroom instruction.  When you take a look at the newly employed, inexperienced criteria and apply them to our environment, our operations, the way we staff, basically what?s necessary to accomplish it is in terms of introduction to the work environment things, hazards, health and safety to the minor, things like that.  Things are covered under the 40 hour program or the 24 in the case of the surface.
		Most of those things that can be covered in the classroom can be done in an eight hour class when you apply it to the environment of the shaft world.  The key thing that we support is hands-on training on the job site, the task training, the operational training.  I agree with, I believe, Mr. Moore?s comments that you bring a new employee onto the job site.  It may be two or three weeks or it might be six weeks until he?s exposed to a concreting cycle.
		But any time that individual, whether he?s experienced or inexperienced, if he?s never seen a jumbo drill rig and hasn?t drilled before, we?re going to take one of our experienced people on that crew and work with him and introduce him to that work environment and show him how to do it, how to lay out, how to operate that equipment, and do it safely and productively.  It?s in the work environment where that instruction needs to take place.
		We do that with all of our tasks from the conveyances, from hoisting to haulage, all of the criteria that?s necessary for the safe operation of our business.  Again, we do that because it?s the right thing to do, not because it?s listed in a training plan somewhere.
		I had mentioned earlier - and I?m not going to get into too much detail on this - that we do carry an underground crew that does a lot of work underground in the coal mine.  We do have training plans in place for those people that go underground to do construction work because they are exposed to the mine hazards.  They are going on their scapeways into their mines and working in and around their equipment and whatnot.
		So basically we do have a Part 48 training plan for that and all of the things that are associated for it:  hazard training, annual refresher, certified/qualified training, new miner training.  All of that stuff is common to that side of our business.  So we do maintain people with that training.  Basically that gives you a picture of where R.G. Johnson is in terms of what we do and how we train on both the shaft and the underground side.
		I wanted to point out some of the sentiment that I heard in the proposed rule as I read it.  There seems to be this theory that we are excluded from training.  Well, we have been, but I don?t believe that was the intent of the Mine Act.
		We were not purposefully not included in A-training or B-training.  But we were defined to be covered under Subpart C, which I wanted to echo some of the sentiments that have already been said here today.  It has been 27 years since the Mine Act was written that no regulations have been in place which govern us.
		We applaud the effort to do that.  We would like to participate in that process of developing meaningful, appropriate, and effective training for our work environment.  But we haven?t been excluded.  It was fully intended to have training under Subpart C but Subpart C was never written.
		So what?s the response?  We?ve taken it upon ourselves to do our own training as we have seen fit for the safety and productivity in our industry.  So basically that has been very successful for our organization.  I want to tread just a little bit lightly in looking back to some of the rationales put forth in the proposed legislation.
		I want to say first that when you take a look at fatalities that for our industry or anyone?s industry, one fatality is one too many.  So I don?t want you to misunderstand some of the thoughts that I want to share with you on some of the fatalities that you have listed in your proposed rule.  But really what our thoughts are is that you have to look at the cause and effect of the circumstances that surround each of those issues.
		When you are looking and proposing regulations that apply to surface and underground mines, you want to make sure that while the effects might be the same - people die from ignitions and explosions and impact and falling and so forth - that the causes of those accidents are identified in your training plans and to not muddy the water of reaching that there are similarities between the two work environments when in fact they are very different.
		What I mean is the three fatalities that occurred in 2003 were the direct result of water in construction methods.  Those are not mining methods.  There?s not a miner that I?m aware of that would be involved with that construction process.  Unfortunate incident.  It?s a tragedy that we?re all dealing with and learning from.
		The four fatalities in ignition in ?92, I believe, that those were, if I?m not mistaken, from the Blacksville I mine explosion.  If I?m correct in that, those people were dealing with mine closures which was construction work in and around the surface of the mine.  It had nothing to do with the actual mining process or the development of the shaft.
		So the work that was involved associated with that tragic event is not involved with the type of work that we put in the shaft construction world.  Certainly methane is common to both environments, but the work processes are very different.  Our people need to be trained to manage that in a way that it affects our environment with our work processes.  Those are very different than surface or underground mining.
		Certainly when you go on to look at the fatalities listed and you prepare this rule, there was a number that involved hoisting, platforms, buckets, and things like that.  Again, those unfortunate occurrences were a result of operations in our industry.  They are not operations that would occur in the coal mining or the surface mining facility.
		Basically the other two fatalities listed in the proposed rule were the result of falling objects or falling individuals.  We work at heights all the time.  That?s an integral part of our business.  We?re a vertical development.  Mines are a horizontal development.
		I can?t say that miners, surface or underground, are not exposed to those kinds of hazards.  I would not say that.  The only thing I would say is that in our work environment there?s a higher frequency of exposure to those kinds of things.  Again, when I look at those history, I am just trying to learn what the causes of these accidents are so we can learn from them and make our operations better in addressing conditions that attributed to those and they are very different than the mining process.
		Also, within the proposed rule, there were comments to the effect that drilling, blasting, and mucking, welding, gas examinations were similar in our operations as they were to the mining operation.  Yes, while both environments involve drilling, it?s drilling for much different reasons.  Our purpose, our applications, our methods are basically not common.
		I share the sentiment that?s been spoken here today that conventional mining methods are not viable for development of slopes or shafts for that matter.  If they were, they would be doing the work themselves.  One hundred percent of shafts and slopes, to my knowledge, in our region are contracted out to specialized contractors such as ourselves and everyone in this room.
		Basically the conclusion there is that our work environment is different than the mining environment.  We want a training plan that focuses on our environment with our methods and is not restrictive.  I believe basically that in applying Part 48(a) and (b) that it?s misguided in the sense that there is a great deal of classroom work that has to go on before an individual can get out into the field to learn the process that we?re hiring him to do.
		As I said, again, I can understand there?s some confusion.  But the way the proposed rule is written, if we have to have surface and underground regulations, there?s potentially 64 hours of training.  Now, some of it may overlap, but it?s something more than 40 hours the way the regulations are written right now.  That?s basically before a guy can become a productive member of our workforce.
		For our environment and what we do, eight hours of classroom instruction is very effective in getting that guy?s knowledge up to speed about our environment.  Then it comes with hands-on training with the processes that we do in our environment and working with our experienced people.  Having a new hire come out and be taught by the guy who knows how to run the drill or knows how to run the mucker or set the forms and that type of thing is very important.
		To speak about the expense side of things, I share the sentiment that the $161,000 in the proposed rule is understated.  When you take a look at developing instructors, annual refresher training, task training, hazard training, all of those items in addition to new employee training, our costs are over $100,000 annually.  I?m glad to share information with you on that information.
		We want flexibility and speed and competency in the hiring process.  Remote locations, different locations, a guy working on multiple projects through the course of a year.  We do have turnover.  We need to be able to hire a guy, teach him about our environment, and teach him about our work process but have flexibility and speed in the hiring process once we put him through our drug testing and our pre-employment physicals and initial training requirements.
		So basically I just want to pretty much conclude that we feel that the best forum for training to occur from MSHA?s perspective is to write Subpart C as it was originally intended by the Mine Act.  As much as you said earlier, Mr. McLeod, about that you attended one training plan for the contractor, the language within the laws, it?s written in the regulations.  It talks about training plans for miners.
		You mandate this regulation applying to us.  As much as the intent is to do that, the language of Subpart A and B is that those training plans are mine specific, not contractor specific.  I would think that would have to be addressed.  In any event, that?s a simple matter.  But we would share the idea that any training plan developed for shaft and slope under Subpart C be contractor specific and apply to any mine in any district for our operations.
		Likewise, we believe that the eight hour initial training in the classroom is adequate for the introduction to the workforce for the hazard training.  We would support the idea of 16 hours or more - I should say at least a minimum of 16 hours in the workplace.  In the long run, we probably do more than 16 hours in terms of showing a guy how to do the various phases of our work.  But in terms of what?s mandated, I think 16 is adequate for that.
		Basically all of the other issues that exist within those training plans, the annual refresher, the hazard training, the task training, all those things are norms within our business and they have worked well.  It?s just that we want speed and flexibility in being able to get a new hire onto the project.  That?s all I have.  I don?t know if there are any questions anybody has.
		CHAIRPERSON SMITH:  Thank you, Mr. Johnson.
		MEMBER PHUC:  You stated that your company is small.  How many people do you employ?
		MR. JOHNSON:  About 120 people.
		MEMBER PHUC:  Out of 120, how many of them are shaft and slope construction workers?
		MR. JOHNSON:  Approximately 95 are shaft construction.  It?s been quite a few years since we have constructed slope.
		MEMBER PHUC:  Ninety-five?
		MR. JOHNSON:  Yes.
		MEMBER PHUC:  Now, is that the absolute number?
		MR. JOHNSON:  It?s an approximate number.  We probably have 15 to 18 people that are salaried people.  We have about ten people that are underground crews that do underground work.
		MEMBER PHUC:  Right.  Is that 95 operating at optimal when you were talking about that bell shaped curve?
		MR. JOHNSON:  Yes, when we have three projects going, upon a given shaft job, there?s anywhere from 24 to 28 maybe 30 people at a time that may have to go on a project to staff a shaft.  We can basically run between three and four shafts at a time.
		MEMBER PHUC:  Okay.  Thanks.
		MEMBER McLEOD:  Could you maybe expand a little bit on the, you used the word, 16 hours of on the job training?  Is that under the mentoring of somebody?  How actually does that work?  Talk about it a little bit.
		MR. JOHNSON:  Well, there?s a couple of different things.  You can take, for instance, when you look at the new miner requirement as far as underground mining.  There?s a provision in there that talks about mine map transportation communication.  Well, in our business, we have to come out here to show them what our bell system is for our hoist.
		It doesn?t take long.  They are given a card to understand the bell system.  They are shown how to get in and out of the hole.  We have emergency escape provisions on our hoist and how to hook up a hoist to get people out of the hole in the event of a power outage and that kind of thing.
		So it?s a check in-check out system.  It?s things that are in place on the job site.  It?s also how to operate a drill, how to lay out a drill round to shoot a V-cut, how to muck with a two bucket system underground with a backhoe or an imco (PH), how to properly dump buckets on the surface.
		You are in the midst of a concreting cycle and basically a delivery comes up to the job site of a rebar.  You have to get the logistics of how to keep your operation going, receive the materials, and get them placed in a small confined area.
		So in answering that what I?m saying is, in part we go through what?s required in the regulations and in part it?s how to be an effective worker doing the task at hand on the job site.  In part, it?s task training.  In part, it?s covering some of the criteria that?s listed as far as new miner training.  I don?t know if that answered your question or not.
		MEMBER McLEOD:  Have you identified tasks and then somebody goes through that training?  In other words, if I?m a supervisor and you send me five guys, am I going to know what training they have already had with your company if they come from another site, as an example?  In other words, what have you done formally?
		MR. JOHNSON:  We have a task training plan set up by the law where we record the tasks that they have been trained in.  They have a personnel file that goes from job to job.
		MEMBER McLEOD:  Great.  Thanks.
		CHAIRPERSON SMITH:  Thank you,  Mr. Johnson.  We appreciate it.  What I would like to do is take about a five minute stand up break for everybody.  Then we?ll come back on the record.  We have two other individuals who have requested to speak this morning.  We?ll check to see if there are others. We?ll be back in five minutes.  Off the record.
		(Whereupon, the foregoing matter went off the record at 10:50 a.m. and went back on the record at 11:01 a.m.)
		CHAIRPERSON SMITH:  We are back on the record.  Our next presenter is Steve Thomas.
		MR. THOMAS:  Good morning.  My name is Steve Thomas, T-H-O-M-A-S.  I am the Safety Manager for Gunther Nach, Incorporated of Saint Louis, Missouri.  With eight years of construction safety experience, I would consider myself a better than average trainer.
		I?m qualified to instruct more than a dozen different topics for construction.  I?m in the process of receiving MSHA trainer certification.  That?s mainly through seven years of strictly construction activities, muddy boot field experience with the last year coming over to Gunther Nach and doing more in the mining construction industry.
		A conservative estimate, in the eight years of experience, I have trained over 5,000 construction workers on various topics.  Gunther Nach has been in the business of shaft and slope sinking since 1967 and in that time have completed approximately 34 slopes and 56 shafts for the coal, metal and non-metal mining industries.
		Constructive slopes have ranged from 150 feet to several thousand feet.  Shafts of varying shapes have ranged from 100 feet to over 2,000 feet deep.  Additionally, numerous tunnels and underground excavation projects have also been constructed.  Presently, we?re participating as a joint venture which is constructing a major sewer tunnel in the Saint Louis, Missouri area.
		Most of these projects have been located in the eastern part of the United States, but we have ventured as far west as Kansas City, Missouri.  Since the beginning of the company, the core business has been mine construction and consisted mainly of shaft and slope construction.  However, in recent years, Gunther Nach has diversified and is now providing construction services in the petrochemical, communications, food and beverage, power generation, and other related fields.
		Although the number of employees at the Gunther Nach payroll is increasing due to diversification and additional opportunities, the number of employees on payroll usually ranges from 50 to 150 employees.  The number of employees on a typical shaft or slope project usually peaks out around 40 when it?s fully staffed.  The duration of the projects can vary from a few months to a couple of years.
		As I stated before, training our employees is a major role as Safety Manager.  I?m an advocate for training.  When it?s done correctly, it?s an integral piece of an effective safety and health program.  However, training is not a cure-all for the perceived problems with our industry.
		In Gunther Nach?s current program, we give all newly hired employees an orientation pertaining to the work they are expected to do.  Additionally, we cover parts of our safety program they are expected to participate in.  This normally takes two to four hours depending on the complexity of the project.  Providing they have successfully completed the drug screen, they are then allowed to go to work.
		But the training does not stop there.  We have procedures in place that requires supervisors to train employees everyday and extensive training programs for our supervisors.  Prior to performing any task, supervisors are required to go over a project hazard development, PHD, which is our version with a fancy name for job safety analysis or job hazard analysis.
		If there is equipment involved in the work, they are task trained.  Supervisors additionally observe employees while they are working and provide feedback and corrective actions.  This doesn?t occur only on the first day but on everyday of the project.  All supervisors are required to make written observations of the work in progress on a daily basis and provide what corrective actions were taken.  Most of these observations are geared toward employee behaviors.
		In addition, we hold safeguard meetings everyday to discuss the day?s operations and how to overcome hazards before the work ever starts.  This is about 15 to 20 minutes taken out of everyday before we ever pick up a wrench.
		As I said earlier, I?m an advocate for training and feel this is the more effective way to conduct training.  Studies show that an average person can listen with understanding for approximately 90 minutes but can only listen with full retention for an average of 20 minutes.  Taking that into consideration, in a full eight hour day of training, how much is an employee really retaining?
		The key to productive training is reinforcement over the life of the project.  As I understand it, the proposed regulations would require all slope and shaft contractors to provide a minimum of 40 hours of training for every employee prior to the performance of any work.  This is based on a prudent and safety-minded contractor?s assumption that every employee on the project site may be required at some point to work underground and thus requiring training under Part 48(a).
		Forty hours of training prior to starting work is not only inefficient, it?s ineffective.  When we start a shaft or slope project, there may be a month or more lag time prior to performance of any underground work.  This is not the time to train personnel on topics such as ventilation systems, ground control, et cetera.
		They have to be covered in the new hire orientation.  It?s my opinion that training for these procedures and safeguards for the hazards should be much closer to the time these skills are to be utilized.  Conducting 40 hours of training with eight hours of retraining annually may be appropriate in operating a mine where the conditions and workforce are relatively constant.
		However, shaft and slope workers, while facing several of the same hazards, also face other differing hazards due to the construction activities that they perform.  Shaft and slope workers face constantly changing conditions as they progress in performing their work and often experience a workforce that is constantly changing due to the nature of their work.
		These differences necessitate a need to have a training program which is conducive to the hazards to which the workforce is exposed.  Shaft and slope workers should have their own training program and not be merely included in other programs.
		Some questions that the proposed regulations would bring up - and I realize this is for the federal and not the state but these are some consequences - is, how will state run programs respond to this?  Currently, Kentucky requires 48 hours training for an experienced miner, West Virginia 80.  Are we going to be thrown into those groups going into those states?
		Will a coal miner trained under Part 48(a) really be qualified to work on a slope or shaft?  The gentleman before me described a lot of the differences between the two.  Looking at it the other way, will a shaft and slope worker with Part 48(a) training really truly qualify to work in an underground coal mine?
		A review of the proposed Subpart C language from the Summer of 1978 indicates that the authors recognized that construction work was separate and distinct from production mining activities.  In reality, the proposed section could have been broken into two separate subparts: one for shaft and slope and the other for construction workers engaged in erection, alteration, repair, dismantling, and demolition of all structures, facilities, and equipment on mined property with the exception of shaft and slope construction.
		The training programs which were proposed differ from the mandated courses in Subparts A and B to provide training for the type of work that was actually going to be performed.  For example, shaft and slope workers were to be trained in explosives while clean up of rock was excluded.
		For whatever reason, Subpart C never came to fruition.  MSHA has again recognized that the shaft and slope industry has a need for up to date training regulations.  Gunther Nach and the rest of the industry support the new training regulations which are developed for the work our employees perform.
		We stand ready to assist MSHA in the development of shaft and slope specific training content and implementation.  In my opinion, a joint effort between MSHA and the industry is needed to develop meaningful and effective training for this specialized workforce.  Any questions?  Thank you very much.
		CHAIRPERSON SMITH:  Thank you, Mr. Thomas.  We appreciate that.  Our next speaker is Adele Abrams.
		MS. ABRAMS:  Good morning and thank you for giving me the opportunity to testify here today.  My name is Adele Abrams.  I am speaking today on behalf of the American Society of Safety Engineers which is a professional society of 30,000 dedicated safety and health professionals that is headquartered in Des Plains, Illinois.
		I am their Washington representative.  I am also a professional member of ASSE, of both their mining and their construction practice specialties.  I?m a certified mine safety professional.  I have coauthored textbooks on construction safety and on mine safety including a recent book published by ASSE, Construction Safety Management and Engineering.  I authored a chapter on MSHA considerations for contractors in that book.
		ASSE?s membership includes certified safety professionals, certified mine safety professionals, certified industrial hygienists as well as professional engineers, fire protection engineers, system safety experts, and an impressive collection of other disciplines.  There are 13 practice specialties within ASSE including mining.  Since 2003, ASSE has worked cooperatively with MSHA through an alliance to advance mine safety and health.  I am a participant in that ASSE and MSHA alliance.
		We are pleased to submit this statement concerning proposed modifications to Part 48 training.  We commend MSHA for addressing the issue of construction worker training at mine sites.  In my prepared statement, which I would like to have included in its entirety in the rulemaking record, I have addressed many of the same things that Ms. Smith did in her opening here today.
		Section 115 of the Mine Act of 1977 did direct the Secretary of Labor to promulgate regulations concerning health and safety training programs for miners.  It did specify that there should be training standards governing construction workers at mine sites.  Since 1977, however, MSHA has largely refrained from addressing this area.
		Based on the statutory language apparently, it exempted all slope and shaft construction workers from the scope of the mandatory miner training when it promulgated the Part 48 standards in 1978.  At the time, this exemption was based on an assumption that shaft and slope construction was substantially different from the extraction and production mining that took place, and therefore that miner training would not be relevant or applicable.
		As MSHA?s rulemaking notes, there have been 15 individuals in the shaft and slope construction arena that have been killed at mines over the past 20 years roughly.  MSHA?s analysis shows that their hazards are not substantially different from those faced by other underground or surface miners, and that indeed there are many tasks that are similar between those conducted by miners and those conducted by construction workers at mines.
		There?s also some similar equipment that is used.  You have had a lot of expert testimony here today from those who perform this work that did point out some of the unique facets of shaft and slope workers.  But the bottom line is that in recent years MSHA appears to have changed its perspective, at least in part, with respect to there being a statutory bar to encompassing construction workers within miner training.
		Specifically in the Part 46 rulemaking back in 1999, MSHA did intentionally include construction workers within the definition of miner.  Despite this, the proposed rule that we are commenting on today would retain the training exclusion for mine construction workers other than for those shaft and slope workers.  It continues to refer to a, perhaps at some point in the future, pending Subpart C that would address separately mine construction training in the future.
		ASSE notes that the rationale for this is not very clear given that MSHA has already addressed construction worker training for certain categories of mines, specifically those in the aggregates industry and cement industry and some other categories of surface non-metal operations.  When you look at the preamble to that Part 46 rule, it suggested that exposure to the hazards of mining occurs for those construction workers who perform activities integral to extraction and production or those who are working at an active mine site.
		In practice, this encompasses virtually all construction workers other than those who are engaged in new construction at mines not yet open or at mines that have temporarily suspended active mining because of the construction or possibly those with intermittent operations.  MSHA?s program policy manual defines construction work as including the building or demolition of any facility, the building of a major addition to an existing facility and the assembling of a major piece of new equipment such as installing a new crusher or the assembling of a major piece of equipment such as a drag line.
		Again, those seem to be covered under Part 46 but would continue to be exempt from any miner training requirement under Part 48 if this rulemaking were to proceed as it?s proposed.  Specific to this proposal, ASSE believes that more explanation is needed for the decision to limit the expansion only to those construction workers engaged in shaft and slope work.
		You have attempted to quantify the fatalities and injuries suffered by the shaft and slope construction workers.  But the preamble to this proposed rule lacks any data for injuries or illnesses suffered by other categories of construction workers at the mines that are currently covered by Part 48.  It might be beneficial to make that data publicly available in the final rule or at some interim phase in this rulemaking so that it can be determined whether this continued exemption of all other construction workers is still warranted because as of now, the agency has not articulated a reason why construction workers at Part 48 regulated mines should receive a lesser degree of protection than construction workers at Part 46 regulated mines.
		Now, having said that - and perhaps it is radical to be suggesting expansion of this proposed rule - I do want to note that what ASSE is suggesting is not uniformly taking Part 48 as it currently exists and applying it to construction but rather by looking at what has already occurred in the Part 46 arena.  When MSHA decided to include construction workers in the Part 46 training requirements, they recognized that those individuals might have long-term experience and also training before they come to the mine site that is relevant to the task they perform as ?miners.?
		So it consequently gave them credit for such experience in positions like a heavy equipment operator or a skilled craftsman.  If MSHA does decide to extend Part 48 to slope and shaft construction workers or to all categories of construction workers either now or in the future, we would suggest that a similar grandfathering should be permitted for those construction workers who have at least 12 months of cumulative prior experience performing the same tasks that they would perform at the mine and who also have documented appropriate training.
		In other words, they should receive credit for OSHA 10 or 30 hour courses for construction that they have received.  The crediting of such training can apply to both the initial training and also annual refresher training.  You have heard again from a number of construction companies here today that seem to have very well developed and documented training programs that are specific to their shaft and slope construction.
		So ASSE is not suggesting that they should have to start from scratch but rather that the documented training that such companies are already providing should be recognized and be credited toward the training requirement for the initial new miners or perhaps for those who are returning to mines to constitute part of the annual refresher training.  MSHA, with respect to experienced miners as they do with Part 46, continue to permit workers to be classified as experienced miners if they have this type of experience, if they have been working for more than a year but further suggest that they should be classified as this permanently regarding of what date they begin work at the mine or if they resume work at a mine after an extended absence.
		This is something that Part 46 tends to do but Part 48 currently does not in its definition of experienced miner if there has been an absence from the mining industry for a period of time.  We believe this will ease unnecessary burdens prospectively on construction employers while it will not diminish the protection of workers since these workers arguably would be performing the same type of tasks just not doing them at a mine site.  They might be doing it at an underground tunneling operation in the construction arena that is regulated by OSHA.
		We do believe such workers should be subject to eight hour annual refresher training if they did not have equivalent documented training under an OSHA construction training program within the 12 months proceeding they return to the mine site.  Obviously they would still need any kind of refresher training on hazards unique to the mine site, the initial hazard training and then having that refreshed on an annual basis as well as new task training if new hazards are introduced to the work environment or if they are assigned to perform a task while they are at the mine site in which they do not already have task training experience.
		MSHA has already set a precedent under Part 46 for giving partial credit toward new miner training for construction workers who come to the mine pretrained on certain mandatory subjects that are set forth in the MSHA standard.  I would direct your attention - and I?m not going to read it in its entirety - to the preamble to the final Part 46 rule where MSHA gave an example of what types of credits could be given.
		They go through training that the person might have received under an OSHA program on use of respiratory devices or on the safe operation of a front end loader, instruction on hazards related to electrical operations or silica, fall protection, material handling, and excavations, first aid training.  If the workers have received that training already from an OSHA 500 approved trainer and they have gotten this through an OSHA 10 hour course or an OSHA 30 hour course, they could get credited for that.
		In the example MSHA gave in its Part 46 preamble, they saw where a new miner could get up to 15 hours of training credit in such a scenario.  That is in 64 Federal Register 53106.  That appeared on September 30, 1999.  By taking a similar approach to shaft and slope construction training or to all construction worker training under Part 48, it will reduce the regulatory burden on the businesses, especially on those that only occasionally perform such work at mine sites and who normally do work at OSHA regulated construction projects.
		It will also avoid redundancy and provide needed flexibility while not diminishing the training protection for employees.  We also note that you should consider exempting from these comprehensive training requirements those construction workers who do not have a regular presence at the mine or who work no more than five consecutive days at the mine site.  This is consistent with MSHA?s current approach for non-construction contractors at mines.
		As a practical matter, again from the testimony presented earlier, it seems most of these people are there for extended periods of months at a time.  But where you do have some turnover or where some specialty subcontractors might come in to participate in shaft and slope work, this exemption may be appropriate there other than for the initial on-site specific hazard training.
		With respect to training plans under Part 48, ASSE supports giving construction companies at least 120 days from the date of the final rule to get plan approval from MSHA, but we agree that more flexibility is needed.  We suggest that the employers should be able to elect to either have their own Part 48 training plans or to use, with the mine operator?s consent, the plan already approved for the mine where the employees would perform their work.
		This flexibility is needed because the training plan approval process can be lengthy.  I have seen, with some companies I work with, it extend well beyond the 60 days suggested in the preamble here.  It can even be longer if mine employees or employees of the company object to what is in the plan or if the MSHA office comes back and wants a rewrite of certain portions of the plan.
		It can then require a resubmission of the training plan that can take, again, well beyond the 60 days.  When you are working in contracts where time is of the essence, that may be an unnecessary burden if there is an appropriate mine plan that could be used by the construction contractor.
		The rule is silent really concerning the qualifications for trainers.  Implicit in that is that the existing Part 48 requirements would carry over to the newly covered entities.  I myself am a Part 48 approved instructor.  My firm and myself also provide OSHA training, the 30 and 10 hour courses for construction companies under 29 CFR Part 1926.
		I would suggest that the training requirements to be an OSHA 500 or an OSHA 501 instructor are pretty much as arduous as those for being a Part 48 approved instructor.  There is a lot of redundancy between the training subjects that are covered in the OSHA 10 hour course and the OSHA 30 hour compared with the MSHA Part 48 especially if you are trying to focus those subjects on the tasks that are actually undertaken by the construction employers.
		Therefore, we suggest considering a departure and following the agency?s procedures already adopted under Part 46 which would allow a construction company to use either the mine?s Part 48 approved instructor or their own Part 48 approved instructor or the construction company?s own competent person, someone who would normally provide the company?s safety and health training for its work on OSHA regulated sites such as a person who has completed an OSHA 500 course and has appropriate credentials as a CSP or a CMSP.
		By allowing them to oversee the training provided to these workers, I think that removes some of the impracticality for construction companies of getting their own person MSHA approved in a timely manner.  It?s going to be very difficult for them to do that.  You have heard testimony on that already.
		Moreover, in my experience because of resource limitations, many of the state grant recipients just do not have sufficient resources or personnel to provide this type of training on demand to companies that are not mines and that are not regularly or directly engaged in mine operations.  So it does leave these companies hanging out there without a lot of resources to fall back on if they have to hire one or two new employees at a moment?s notice.
		Finally, with respect to grandfathering of training and also the credit for the partial training for the OSHA programs, as I said, they should consider waiving the requirement that this training be provided by an MSHA approved instructor.  My written remarks say ?MSHA improved.?  That may well be the case but I meant MSHA approved because this is probably infeasible for all construction operations.
		So we do recommend that the competent person standard used under Part 46 be implemented for the construction companies either through this rulemaking or if you decide to proceed, as has been suggested by every other speaker this morning, that you do these as a stand alone Subpart C.  ASSE does not have a particular objection to proceeding that way.  We just feel that there should be some training requirements that are written and that are enforceable for all construction workers who are performing work at mines.
		The last thing I wanted to address is the utilization of voluntary consensus standards.  Under the Technology Transfer Act of 1995 as implemented by OMB Circular A119, whenever an agency is engaged in a rulemaking, they are supposed to look and see if there is a consensus standard out there that is applicable to the subject matter being covered.
		Although we are not suggesting that MSHA incorporate as a whole the ANSI Z490.1 standard, we do draw your attention to it.  This is a standard titled ?Criteria for Accepted Practices in Safety, Health, and Environmental Training.?  ASSE is the Secretariat of this standard.  MSHA participated in the committee that created this standard and has previously endorsed its use in references to it in the preamble for the MSHA Hazard Communication Standard.
		So in the context of this rulemaking, we again urge MSHA to review the ANSI Z490.1 standard, reference it in this rule as a tool that can be used by construction companies and by mine operators in improving the efficacy of their training programs.  It also provides a method for employers to benchmark their training practices.
		So in conclusion, we just note that appropriate and effective training is a critical element of any company?s safety and health program regardless of whether the employer is engaged in mining, construction, or shaft and slope work.  The proposed rule makes long overdue modifications to Part 48 that we believe will increase safety and health protections for those individuals engaged in shaft and slope construction work at Part 48 regulated mines.
		We urge MSHA to consider applying the same flexibility to these companies as it does to their construction counterparts who perform similar work at Part 46 regulated mines.  We also ask that MSHA more fully evaluate whether the remaining exemption for other categories of construction workers at Part 48 mines is still valid.
		ASSE pledges its support in working with the agency to ensure that best practices in miner and construction training are developed and disseminated for use by the entire mining community so that no worker is left behind in terms of safety and health protections.  We hope that the resources that we have through our mining and construction practice specialties can be employed perhaps through the MSHA and ASSE alliance in bringing this rulemaking to fruition.
		So thank you for your consideration of these comments.  We ask that these be included in the formal rulemaking record.  We may submit additional post-hearing comments.  I?ll be happy to respond to any questions you might have.
		CHAIRPERSON SMITH:  Questions for Ms. Abrams.
		MS. ABRAMS:  Here?s your chance, Tom.
		MEMBER McLEOD:  I know.  I?ll be nice.
		(Laughter.)
		CHAIRPERSON SMITH:  Okay.
		MS. ABRAMS:  Okay.  Thank you very much.
		CHAIRPERSON SMITH:  Are there others who would like to say a word?
		MR. BRENDEL:  My name is Jim Brendel.  I?m Vice President and Secretary of Gunther Nach and Vice President of the Association for Contractors.  I have been in this business for 29 years, all of it with Gunther Nach.  I don?t have a written statement.  I just have a few comments I would like to make concerning the proposed regulations.
		One of them is, we probably need a better definition of shaft and slope workers that would be included under this regulation.  You propose an amended definition of miner to include shaft and slope workers and workers engaged in construction activities ancillary to shaft and slope sinking.  We may need a better definition concerning subcontractors that might be involved on a shaft and slope sinking project.
		Sometimes when we are doing a slope, a dirt mover might come in and open up the cut excavation, back field, do sheet paneling.  How wide reaching is this definition?  Is it only what our company specializes in which is sinking a hole and lining it?  Does it include the person that comes in and puts in the shaft steel at the end of the project?
		Does it include the guy that puts the fan over the top of the shaft or the permanent hoist?  What about later on where, during miner certification, a couple of years down the road, somebody needs to come in and do grouting in the shaft or miscellaneous shaft repair?  We would like to see that clarified a little bit more.
		One comment I would like to make is, in our type of work, the workers are always together in a crew activity.  It isn?t like a mine where you have a couple of guys over here and a couple over there.  We?re pretty limited where our people can be.  As a result, an inexperienced worker would always be with an experienced worker.
		I just want to express our willingness to work with MSHA to develop a meaningful policy that would be good for our employees.  I have a question for you.  How did the meeting go in Salt Lake City?
		(Laughter.)
		CHAIRPERSON SMITH:  We had no attendees and no speakers in Salt Lake City.
		MR. BRENDEL:  So it was a pretty quick day.
		(Laughter.)
		CHAIRPERSON SMITH:  Yes.
		MR. BRENDEL:  Hopefully then we make up for it.
		CHAIRPERSON SMITH:  We appreciate your attendance here.
		MEMBER McLEOD:  Absolutely.
		MR. BRENDEL:  That?s all I have.  Thank you.
		CHAIRPERSON SMITH:  Thank you.  Any questions for Mr. Brendel?  Thank you very much.  Others?  We thank you all for coming this morning and for your remarks.  We look forward to follow up documents that you might submit for the record, additional data that you have indicated you might be able to provide for us on a variety of topics.
		Cost information would be very helpful for us.  September 14 is the close of the comment period.  So we would encourage you to please, if you are going to submit that information, get it to us so we can consider it as we move forward in this rulemaking.
		MR. POND:  Can you say at this time how soon after that you would expect to finalize your thoughts?
		CHAIRPERSON SMITH:  It?s hard to say, but we intend to move this rulemaking forward expeditiously.  We will be analyzing comments as they come in.  I don?t believe we have received more than one comment at this point in time.  So we look forward to analyzing your discussions today and any additional comments that we might get from you or from others as this record closes.  But we plan to move forward as quickly as we can.  Thank you very much.  The record is closed for this hearing.  Off the record.
		(Whereupon, the above-entitled matter concluded at 11:36 a.m.)



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