UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION In the Matter of: ) ) MSHA'S PUBLIC HEARINGS HEALTH ) STANDARDS FOR OCCUPATIONAL NOISE ) EXPOSURE IN COAL, METAL AND ) NONMETAL MINES ) Pages: 1 through 257 Place: Washington, D.C. Date: May 30, 1997 UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES In the Matter of: ) ) MSHA'S PUBLIC HEARINGS HEALTH ) STANDARDS FOR OCCUPATIONAL NOISE ) EXPOSURE IN COAL, METAL AND ) NONMETAL MINES ) Frances Perkins Building Room N5437B 200 Constitution Ave., NW Washington, D.C. Friday, May 30, 1997 The hearing in the above-entitled matter commenced, pursuant to notice, at 9:28 a.m. BEFORE: JIM CUSTER Moderator APPEARANCES: JIM CUSTER, Office of Metal and Nonmetal Mine Safety and Health PATRICIA SILVIE, Director, Office of Standards, Regulations, and Variances MIKE VOLOSKI, from the Office of Technical Support ROBERT THAXTON, from MSHA's Office of Coal Mine Health and Safety SANDRA WESDOCK, from the Department of Labor's Office of Solicitor VICTORIA PILATE, Office of Standards, Regulations, and Variances ADDITIONAL APPEARANCES: ROSLYN FONTAINE, Office of Standards, Regulations, and Variances WILLIAM AMENT, Organization Resources Counselors, Inc. TERRENCE DEAR, DuPont Engineering JOE MAIN, United Mine Workers JAMES WEEKS, United Mine Workers of America LINDA RAISOVICH-PARSONS, United Mine Workers ED PLOWCHA, United Mine Workers JON HITCHINGS, United Mine Workers JIM MILLER, United Mine Workers JIM LAMONT, United Mine Workers JANICE BRADLEY, Industrial Safety Equipment Association ALICE H. SUTER, American Speech-Language Hearing Association KEVIN R. BURNS, National Stone Association BRUCE WATZMAN, National Mining Association BOB GLENN, National Industrial Sand Association WILLIAM W. CLARK, Central Institute for the Deaf TOM B. SHADE, Teamster's Local Union 992 RICK WAUGH, Teamster's Local Union 992 HARRY TUGGLE, United Steel Workers ROBERT J. BLAYLOCK, Arch Mineral Corporation MIKE SPRINKER, International Chemical Workers Union, Council of USCW ADDITIONAL APPEARANCES: KELLY BAILEY, Manager, Occupational Health, Vulcan Materials Company; Chairman, Safety and Health Committee, NSA CURTIS SMITH, Audiologist, Auburn, Alabama DAVID HUDSON, Electrician, Vulcan's Graham Quarry, Virginia WES ING, Chairman, Noise Task Force, National Mining Association TIMOTHY RINK, President, HDI, Incorporated KEN VORPAHL, Unimin, National Industrial Sand Association KLAUS LEIDERS, New England Stone P R O C E E D I N G S (9:28 a.m.) MS. SILVIE: Good morning. My name is Patricia Silvie. I am the Director of the Office of Standards, Regulations, and Variances. Welcome to MSHA's public hearing on its proposed standards for occupational noise exposure in coal and metal and nonmetal mines. The members of today's panel are, to my immediate left, Mike Voloski, from the Office of Technical Support; and to his left, Robert Thaxton, from MSHA's Office of Coal Mine Health and Safety; and then on the far end, Sandra Wesdock, from the Department of Labor's Office of Solicitor; to my right, Jim Custer; and to his right, Victoria Pilate and Roslyn Fontaine, both from my office. The moderator for today's hearing will be Jim Custer, and Jim is from the Office of Metal and Nonmetal Mine Safety and Health. We are here to listen to your comments on the December 17, 1996 proposed rule revising certain provisions of the existing health standards for occupational noise exposures in coal and metal and nonmetal mines. The hearings are being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977, and as some of you know, as is the practice of this Agency, formal rules of evidence will not apply. Let me give you some background into the noise proposal. MSHA published an Advance Notice of Proposed Rulemaking on December 4, 1989, as part of the Agency's ongoing review of its safety and health standards. The Agency's existing noise standards, which were promulgated more than 20 years ago, are inadequate to prevent the occurrence of occupational noise-induced hearing loss among miners. In the Advance Notice of Proposed Rulemaking, the Agency solicited information for revision of the noise standards for coal and metal and nonmetal mines. The comment period closed on July 15, 1990. On December 17, 1996, in response to information received on the Advance Notice of Proposed Rulemaking, MSHA published a proposed standard. The Agency has developed a proposal that it estimates can reduce by two-thirds the number of miners currently projected to suffer a material impairment of their hearing, but which it estimates can be implemented at a cost of less than $9 million to the mining industry as a whole. The focus of the proposal is on the use of the most effective means to control noise -- engineering controls to eliminate the noise or administrative controls, for example, rotating miner duties, to minimize noise exposure whenever feasible. The proposed standard would retain the existing permissible exposure level, which I will refer to as the "PEL." It would establish a new "action level" of an eight-hour, time-weighted average of 85 dBA. If a miner's exposure exceeds the PEL, the proposal would require that the mine operator use feasible engineering and administrative controls to reduce the noise exposure to the PEL. If engineering and administrative controls do not reduce the miner's noise exposure to the PEL, the operator must use those controls to lower exposure to as close to the PEL as is feasible or achievable. In addition, the operator would have to provide any exposed miner with annual audiometric examinations, properly fitted hearing protection, and ensure that the miner takes the annual audiometric examinations and uses such protection. The comment period was extended from February 18, 1997 to April 21, 1997, due to requests from the mining community. MSHA has received a broad range of comments from over 60 different interests, which included mine operators, industry trade associations, organized labor, college and universities, and noise equipment manufacturers. The comments addressed the primary provisions of the proposed rule, such as the action level, the PEL, methods of compliance, exposure monitoring, and audiometric testing. I will now discuss major provisions of the proposed rule. Exposure to noise is measured under proposed Section 62.120. The proposed section would require that miner's noise exposure not be adjusted for the use of hearing protectors, that a miner's noise exposure measurement integrate all sound levels from 80 dBA to at least 120 dBA during the miner's full work shift and that the current 5 dBA exchange rate to measure the level of a miner's noise exposure would continue to be used. An action level of 80 dBA during any work shift, or, equivalently, a dose of 50 percent, would be established under the proposed rule. For miners who are exposed to the 85 dBA action level, the proposed rule does not require the use of engineering and administrative controls. Rather, operators would be required to provide personal hearing protection upon a miner's request, annual employee training, and enrollment in the hearing conservation program. The proposed rule would also retain the existing PEL of 90 dBA, requiring that no miner be exposed to noise exceeding a TWA of 90 dBA during any work shift, or, equivalently, a dose of 100 percent. While the PEL would not change, the actions required if noise exposure exceeds the PEL are different from the current requirements. MSHA's existing metal and nonmetal noise standards, for example, already require the use of feasible engineering or administrative controls when a miner's noise exposure exceeds the PEL. The existing standards, however, do not require the mine operator to post the procedures for any administrative controls used to conduct specific training or to enroll miners in a hearing conservation program. Under MSHA's current coal mining standard, a citation is not issued when a miner's exposure exceeds the PEL if appropriate hearing protection is being used by the miner. In the event of a violation of the coal-mining standard, operators are required to properly institute engineering and/or administrative controls and to submit to MSHA a plan for the administration of a continuing, effective hearing conservation program. The proposed rule would establish a hierarchy of control for all miners when exposure exceeds the PEL. In addition, other aspects of the rule increase protection for miners and further reduce the potential for hearing loss. Under the proposal, mine operators must first utilize all feasible engineering and administrative controls to reduce the sound levels to the PEL before relying on other controls to protect against hearing loss. Furthermore, an operator would be required to ensure that a miner whose exposure exceeds the PEL takes the hearing examination offered through enrollment in the hearing conservation program. Under Proposed Section 62.120(f), MSHA would require operators to establish a system of monitoring which effectively evaluates each miner's noise exposure. The proposal would also require that within 15 calendar days of determining that a miner's exposure exceeds the action level, the PEL, the dual-hearing protection level, or the ceiling level, the mine operator notify the miner in writing of the overexposure and the corrective action being taken, pursuant to Section 103(c) of the Mine Act. The proposed rule also provides for hearing protection and training. Under Proposed Section 62.125, miners would be given a choice from at least one muff-type and one plug-type hearing protector. Under Section 62.130, miners would be given required training. Additionally, under Proposed Section 62.140, operators would be required to offer baseline audiograms to miners enrolled in a hearing conservation program. That is, when a miner's exposure exceeds the action level. Prior to conducting the baseline audiogram, operators would be required to make certain that miners have at least a 14-hour period when they are not exposed to work place noise. Use of hearing protectors as a substitute for this quiet period would be prohibited. The proposed rule would also require mine operators to offer a valid audiogram at intervals not exceeding 12 months for as long as the miner remains in the hearing conservation program. Proposed Section 62.150 would require the operator to assure that all audiometric testing is conducted in accordance with scientific, validated procedures. MSHA would also require that audiometric test records be maintained at the mine site for the duration of the affected miner's employment, plus at least six months thereafter. Under Proposed Section 62.160, operators would have 30 days in which to obtain audiometric test results and interpretation. Additionally, under Proposed Section 62.180, MSHA would require that unless a physician or audiologist determines that a standard threshold shift is neither work related nor aggravated by occupational noise exposure within 30 calendar days of receiving evidence of a standard threshold shift or results of a retest confirming a standard threshold shift, the operator must do the following: retrain the miner, allow the miner to select a hearing protector or a different hearing protector, review the effectiveness of any engineering or administrative controls to identify and correct any deficiencies. Proposed Section 52.190 would require that within 10 working days of receiving the results of an audiogram or receiving the results of a followup evaluation, the operator notify the miner in writing of the results and interpretation of the audiometric test, including any finding of a standard threshold shift or reportable loss and, if applicable, the need and reasons for any further testing or evaluation. Finally, the proposed rule would require that the operator provide the miner, upon termination of employment, with a copy of all records that the operator is required to maintain under this part without cost to the miner. This is the last of six hearings. The hearing was scheduled to begin at 9:00 a.m. -- well, you know what happened about that -- and to end at 5:00 p.m. If necessary, however, MSHA will continue this hearing until all persons have been heard today. At this point, let me note that the Agency has received several requests for a 60-day extension of the post-hearing comment period beyond the now-scheduled time of June 20th. The record is now scheduled to close on June 20th. We have evaluated those requests in light of the extensions that have already been given, including the number of hearings held, and believe that a 60-day, post-hearing comment period is both adequate and reasonable. MSHA is, therefore, expanding the time for the record for an additional 42 days until August 1st, which results in a post-hearing comment period, that is, a comment period from today's date of an additional 60 days. This extension will be put in the Federal Register for notification to the mining community. We will be making this announcement several times throughout this hearing for all members of the mining community. Now, I will turn the hearing over to the moderator, Jim Custer. MR. CUSTER: Thank you, Pat. As Pat said, I'm Jim Custer, and I'm with Nonmetal Mine Safety and Health Division in MSHA, and I will be the moderator for this public hearing. The Mine Safety and Health Administration views these rulemaking activities as extremely important and recognizes that your participation here today is a reflection of the importance that you, the mining community, attach to the rulemaking. Presentation of public statements will be as follows: William Ament, Organization Resources Counselors, Inc.; Terrence Dear, DuPont Engineering; Joe Main, United Mine Workers; Dr. James Weeks, United Mine Workers of America; Linda Raisovich-Parsons, United Mine Workers; Ed Plowcha, United Mine Workers; Jon Hitchings, United Mine Workers; Jim Miller, United Mine Workers; Jim Lamont, United Mine Workers; Janice Bradley, Industrial Safety Equipment Association; Alice H. Suter, American Speech-Language Hearing Association; Kevin R. Burns, National Stone Association; Bruce Watzman, National Mining Association; Bob Glenn, National Industrial Sand Association; William W. Clark, Central Institute for the Deaf; Tom B. Shade and Rick Waugh, Teamster's Local Union 992; Harry Tuggle, United Steel Workers; Robert J. Blaylock, Arch Mineral Corporation; and Mike Sprinker, International Chemical Workers Union, Council of USCW. It is intended that during this hearing anyone who wishes to speak will be given the opportunity to do so. Anyone who has not previously requested to speak should indicate their intention to do so by signing the list of speakers, which is under the care of Ms. Fontaine, at the extreme right of the table. Time will be allocated for you to speak following the scheduled speakers. The Chair will attempt to recognize all speakers in the order which they are requested to speak. If necessary, however, the moderator reserves the right to most of the order of presentation in the interest of fairness. Also, as the moderator, I may exercise discretion to exclude irrelevant or unduly repetitious material. in order to clarify certain points, the panel may ask questions of the speaker. Also, you asked to refrain from asking questions of the presenters during this hearing, but you may question the panel. All comments are important to the Agency. MSHA will accept written comments and other appropriate data on the proposal from any interested party, including those who will not present an oral statement. Written comments may be submitted to Roslyn Fontaine during this hearing or sent to Patricia Silvie, Director of MSHA's Office of Standards, at the address listed in the hearing notice. All written comments and data submitted to MSHA will be included in the rulemaking record. Should anyone desire to modify their comments or submit additional comments following the hearing, the record will remain open, as stated this morning, until August 1, 1997, to allow for submittal of post-hearing comments and data. If possible, the Agency would appreciate receiving a copy of your comments in electronic file on computer disk. The comments are essential in helping MSHA develop the most appropriate rule that fosters health among our nation's miners. We appreciate the constructive criticism and the hard work and careful thought which your comments represent. Personally, and on behalf of the Assistant Secretary of Labor for Mine Safety and Health, J. Davitt McAteer, I would like to take this opportunity to express our appreciation to each of you for being here today and for your input. MSHA looks forward to your continued participation in the Agency's rulemaking activities. Before we begin with the first speaker, you are reminded to sign the attendance sheet that we have located on the table outside of the auditorium whether or not you choose to speak. Also, once again, if your name does not yet appear on the list of speakers, you will still have an opportunity to present your testimony by notifying Mrs. Fontaine of your intent. For each speaker, before you begin your statement, please come to the podium, state your name and organization, and spell your name for the reporter. If you have copies of your prepared testimony, please present copies to the panel as you begin. Thank you. Our first speaker this morning is William Ament. MR. AMENT: Good morning. It's an unexpected pleasure to be leading off this morning. I was not aware that that was going to be the case. I do have copies, as well as a card, that we can give to the court reporter. My name is William Ament. That's A-M-E-N-T. I am an attorney and consultant with Organization Resources Counselors, Inc. In that capacity, I am responsible for reviewing all governmental regulatory initiatives that address a wide variety of occupational safety and health issues, including occupational exposure to noise. The purpose of this statement is to present the views of ORC in response to the December 17, 1996 request for comments on the MSHA rule on occupational exposure to noise in coal metal and nonmetal mines. We are pleased to have this opportunity, and we will respond with post-hearing comments to both the issues I've raised here, as well as those raised by other participants in this hearing. ORC sponsors occupational safety and health groups that include more than 150 mostly large companies from a wide variety of industries, including some with mining interests. These companies have a strong commitment to responsible and effective employer occupational safety and health programs. This statement, however, is solely the responsibility of ORC and may differ from comments submitted by individual member companies. We urge our individual company members to participate in all the rulemaking hearings and present whatever views they have. In fact, we encourage them to contrast their views with ours if that is appropriate. In this forum, we will limit our comments to ORC's view of an effective and responsible regulatory approach addressing occupational exposure to noise, as well as the philosophy underlying regulation of the subject. ORC's post-hearing comments will expand on these issues and, if appropriate, will address issues raised by other participants. Traditionally, ORC's regulatory concerns are limited to those that address hazards in general industry and sometimes construction and maritime. Some issues, occupational exposure to noise being one, transcend industry classification if not only because of the ubiquitousness of the hazard, but because the widespread and interlocking concerns of the interested parties. In addition, some regulatory initiatives such as this one deserve comment because they mark a deep departure from current approaches embodied in other regulations. The change in the ACGIHTLV, the proposals made by NIOSH in its April 16, 1996 draft criteria document on occupational exposure to noise, and this MSHA rulemaking initiative have raised the issue to a level that should be of concern to all employers. The regulatory agencies, such as OSHA and MSHA, we believe, have the responsibility to develop their regulations so that they not only meet the technical requirements of the agencies' enabling legislation, but do so in manner that takes into account the following concerns, among others. The rule should be cost effective. In today's regulatory atmosphere, agencies such as MSHA and OSHA have responsibility to focus on the effectiveness of regulations rather than allowing final regulations to merely be a reflection of the authority given the agencies by Congress. We are not talking about strict cost-benefit considerations, although we believe that those issues are appropriate regulatory concerns, but about the responsibility of regulatory agencies to select the least costly regulatory solution that can arguably meet the agencies' requirements and its legal mandates. And a particular issue that I'm going to be discussing here, rules should be consistent across industry lines. I know there are differences from industries. I know that MSHA exists because of a view, and an appropriate one in many cases, that mining is an unusually dangerous industry, but nevertheless we would like to see the consistency be an important goal to the extent possible. We recognize that the current situation of having different regulatory requirements addressing exposure to noise for metal and nonmetal, as compared to the coal industries, needs to be addressed. This piecemeal regulation of occupational exposure to noise by agencies in the same executive department is not in the public interest, in our view. In correcting this unfortunate situation, we urge MSHA to recognize the well-accepted and successful OSHA model, especially its approach to feasibility and the use of hearing protection if the exposure is less than 100 dBA as an acceptable alternative to the MSHA proposal. We recognize that incorporation of these concerns into the MSHA approach to the regulation of exposure to noise requires substantial change to the regulatory solution, especially as it addresses the concept of feasibility currently being considered by MSHA, but we believe that such an action is important enough to support such changes. MSHA has the responsibility, in our view, to exhaustively examine the OSHA model before proceeding with any alternative approach. Consistent, cost-effective regulations that make sense in the real world of employer implementation, in our view, can go a long way toward achieving the goals MSHA has set for this rulemaking. We support the decision of the Agency to defer consideration of the proposal included in the NIOSH draft criteria document. It is ORC's view that such consideration of the proposal would be premature, and there are several serious concerns as to whether the NIOSH recommendations take into account the pragmatic and legal limitations placed on MSHA as those limitations are placed upon OSHA by both its enabling legislation and court decisions. We believe that Section 22 of the Occupational Safety and Health Act of 1970 supports this view by stating that as an important part of NIOSH's mission, the director is, one, to consider such research and experimental programs as the director determines are necessary for the development of criteria for new and improved occupational safety and health standards, and after consideration of the results of such research and experimental programs, make recommendations concerning new or improved occupational safety and health standards. Although she does not address the MSHA regulatory process in NIOSH Director Linda Rosenstock's foreword to the criteria document, she described the OSHA rulemaking process and the limitations on OSHA in its authority to promulgate standards. Without such a recognition, NIOSH's efforts would be of little practical use to OSHA or, similarly, MSHA. Historically, reactions to employee exposure to noise have generated emotional as well as scientific responses to such an extraordinary extent that productive dialogue has often been difficult, and I'm sure you have found that to be true in many cases. There are two areas of concern about the criteria document and NIOSH's approach to the development. The draft document was not prepared or reviewed by a broad spectra of interested parties needed for the development of a criteria document addressing such a controversial subject. The expert panel, for example, which reviewed the document and appeared at the public hearing desperately needed additional viewpoints. Whether or not NIOSH staff wish to think in these terms, NIOSH is so closely related to OSHA and MSHA that its activities are regulatory in consequence. For these reasons, ORC supports MSHA in its decision to defer consideration of the NIOSH proposals. It is appropriate, we believe, that the debate over the provisions of the NIOSH regulations addressed in this rulemaking focus on the OSHA model and the differences between the metal, nonmetal, and coal regulations in terms that reflect traditional thinking about noise regulation. The remainder of these comments will address selected provisions in the MSHA proposal we believe are important elements in the debate over a standard that will effectively regulate occupational exposure to noise. In addition to the deferral of consideration of the NIOSH proposals, ORC supports the following MSHA proposals. One, maintaining the exchange rate at 5 dB. The earlier NIOSH criteria document on employee exposure to noise recognized that a 5 dBA exchange rate was a real-world descriptor of the effect increased noise levels have on hearing. Even the 1996 criteria document, which recommended a 3 dB exchange rate, notes that that rate would be overly protective in some cases. Also, the 5 dB exchange rate is consistent with the OSHA model. Two, maintaining the age-adjusted, 10 dB standard threshold shift at 2, 3, and 4 kHz and a reporting requirement at 25 dB. As a referral mechanism, the 10 dB requirement can arguably be a part of an effective hearing conservation program. OSHA, in ORC's view, has erred in proposing a reduction of the recording criteria -- that's OSHA's recording criteria -- from 25 to 15 dB at 2, 3, and 4 kHz levels. The proposed STS is consistent with the OSHA model. ORC particularly opposes the feasibility approach described in the proposal. This approach is dramatically inconsistent with the OSHA model on occupational exposure to noise and ignores substantial industry experience with the use of hearing protection and the effectiveness of properly implemented, OSHA-mandated, hearing conservation programs. Although arguments about the effectiveness of the OSHA model are an appropriate line for inquiry, rejection of the model and implementation of a more stringent approach should not be undertaken until any unresolved questions about the OSHA model are answered. It is our view that unless a definitive response and examination of the OSHA model can show that it does not meet the needs of the requirements of MSHA, that MSHA has the responsibility to create a consistent exposure to noise regulatory policy and to do so by adopting the OSHA model. We believe that this is the important OSHA rulemaking that may set a pattern for the regulation of occupational exposure to noise. We approach having the opportunity to participate in the rulemaking and will be available to MSHA for further comments in response to questions. And as I mentioned, we do intend to file post-hearing comments. Thank you. MS. PILATE: On page three of your written comments you discuss -- MR. AMENT: Yeah. I'm sorry. I can't hear you. MS. PILATE: On page three of your written comments, you discuss the agencies' responsibility to select the least cost regulatory solution that can arguably meet the agencies' requirements and legal mandate. Are you aware that the agencies did do an analysis? MR. AMENT: Yes, I am. MS. PILATE: And you still believe that we did not select the least-cost alternative? MR. AMENT: I think that to match this with my view of your examination of the OSHA model, I think that there is always a question whether a regulatory agency fully examines all of these issues in a way that is straightforward, consistent, and absolutely complete, and I urge that the agency go to extraordinary lengths to make sure that the OSHA model is not rejected without extraordinary concern about its effectiveness. If the agency has come to the conclusion that, in fact, it has done that, then so be it. That's the responsibility of the agency, but I think evidence is going to be presented by the testifiers, and probably has been, that maybe that conclusion shouldn't have been reached yet. But I understand that you have made such studies, and we will probably comment on them further in our post-hearing comments, because that is an issue we are very concerned with. MR. CUSTER: Thank you, Mr. Ament. The next scheduled speaker is Terrence Dear, DuPont Engineering. MR. DEAR: My name is Terrence Dear, D-E-A-R. I am a principal mechanical engine from the DuPont Company, Wilmington, Delaware; and I will submit my written comments sometime later. I would like to address the MSHA proposed rules of 12/17/96, in the priority order of concerns, and first to say that the Agency has made a correct decision in maintaining the 90 dBA, eight-hour criteria level, and having said that, have concerns about the basis that it has used in particular in terms of the pertinent legal requirements at page 66447, column three, where the Agency is required to use the best available evidence, the latest scientific data, and the experience of other regulations. I think the risk analysis that comprises Section I(5) of those proposed rules does not in any way reflect either the best available evidence or the latest scientific data or experience under current regulation. It must be realized that the proposed rules contain a risk analysis that is really dated to the preregulatory era, that is to say, even before the Walsh-Healey Act of 1969. And this is noted by the use of the terms "damage risk criteria, percentage risk," and the history of this is well known. It's documented in a book by Olshifksi & Harford called Industrial Hearing Conservation, published in 1975, the National Safety Council, that those percentage risk and damage risk criteria came from the Intersociety Committee deliberations in the sixties. That is to say that MSHA and others, such as NIOSH in its criteria document, that preceded these proposed rules in draft form, have failed to recognize that there is more than 25 years of longitudinal, epidemiologically sound data of industrial hearing conservation program efficacy of preventing occupational noise reduced hearing loss in industry and that in concept MSHA's proposal is to say that there is zero credit for such intervention, for example, as is required by its own regulation. That is to say, we don't know of anybody in the insurance industry around the world who could survive, based on doing that kind of risk analysis and saying 25 years later that it is still valid. It is also like saying that the risk of getting polio in 1996 is the same as it was in 1941, providing you exclude any benefit of the Salk vaccines. In addition, the bases for MSHA cost estimates do not address any of the stated requirements that override all other requirements, and this also affects this concept of PEL and cost benefits, and I just want to address your attention to what the proposed rules actually say in an overriding standpoint. Regarding, for example, cost impact on the mining industry at page 66350, beginning at line 31, column one, and let's now go and look at the facts at page 66454, where it says: MSHA will require mine operators to consider all possible controls, so as to find a combination that will, in fact, reduce noise as much as possible, underlining the word "possible" for emphasis. "Possible" is not "feasible." Possible is open ended. Possible defies anyone's ability to enforce a regulation that would overemphasize the capability of such enforcement. I would like to refer to the fact that when considering the PEL at this point in time, MSHA, like other involved agencies, should have considered not only the reduction or change of PEL, but the increase of PEL. And MSHA, in fact, within the proposed rules, gives its own reasons for why the numbers of dose, for example, just from a numerical standpoint, have been increasing. And I just wanted to point out that there has been a de facto lowering of criterion level in PEL since the advent of the noise dosimeter, which I might add, I was a co-inventor of the first one in industry back in the late-1960's of the system, and it's for the following reason. First of all, dosimeters operate totally differently than hand-held, sound-level-meter instrumentation, both in principle and protocol. They handle impulse and impact noise in an undamped manner, and also there is little control at the present time over the frequently range of interest. For example, in the MSHA criteria document, you will find a line item suggesting that noise-dose recording should include the 16 kHz center frequency of that octave band. Further proposed de facto reductions in the MSHA regulation include lower integration threshold to 80 dBA, which the Agency admits will just increase the numbers and put more people, more miners at apparent risk. They propose to increase the dynamic range, propose to change the response time characteristics, or at least examine that possibility. And by the way, one of the concerns I have throughout this proposed rule set is that there are not hard-and-fast decisions made, but much wavering, for example, in terms of the PEL and some of these other exchange rate and some of these issues. They were not clear, concise decisions. These are well-known methods of arbitrarily increasing does numbers, and it's a situation of raising the bridge and lowering the water simultaneously, apparently later on to be combined with derating of personal hearing protection, the elimination of personal hearing protection device effectiveness from dose assessments, and possibly changing the exchange rate. The conclusion on that regard, they are unnecessary and inappropriate requirements. And this is deja vu all over again for me, having participated in the 1975 OSHA hearings on many of these same subjects, and I would refer you to absolute conclusions to OSH Dockets 10 and 11, where these matters have been discussed in a lot more detail than I have time to pursue today. My second priority is to make sure that the Agency understands the valid reasons for retaining the 5 dBA exchange rate. And by the way, I'm not going to be able to get into it, but I would point out that in the definitions within the proposed rules the only place where the exchange rate is properly identified in terms of the appropriate designation, "dBA," is in the definition. Elsewhere in the document that definition, for whatever reason, is not used. I saw 5 dB, 3 dB, 5- dB, 3- dB; only in the definitions did I see anything near an appropriate definition. Also, we had the Burns and Robinson study revisited. I should point out that that was originally eliminated from consideration by MSHA in its criteria document of 1972 as reference 127. And the problem with the Burns and Robinson study is they found it extremely difficult to examine a case between what they called "equinovicity" and equal energy hypotheses when they couldn't identify or determine the dose for any individual in their study plus or minus 5 dBA. And I think those of us that do this for a living can understand that. I'd also point out something that has not been recognized heretofore, I don't think, and that is that the original exchange rate basis that was picked by the Intersociety Committee, which, by the way, considered exchange rates up to and including 9 dBA, for good reasons, but those original intermittency arguments were based upon establishing a known relationship between temporary threshold shift and permanent threshold shift. And when that was abandoned, people continued to say that those criteria demonstrate that intermittency requirements cannot be met in the industrial work place. Let me go back to Burns and Robinson and tell you what the essence of their study was that they did prove, and that was the emission concept. The emission concept said you need to look at those not only arbitrarily convenient intraday basis, but on a weekly, monthly, and even yearly basis. And I'll tell you what intermittency aspects are for those, in case you are interested, and that is on a weekly basis there are 120 hours of well-spaced intermittency in 168 hours minimum on a monthly basis, 530 hours of well-spaced intermittency in 720 hours. And MSHA's claim in the proposal that we have to make an assumption about intermittency is, therefore, incorrect. Moreover, there is one assumption that has to be made to justify the equal-energy hypothesis, and that assumption is that there is zero emittency in every day a worker works in the United States of America. The probability of zero emittency existing in the U.S. work place is, of course, close to zero, if not zero. So that assumption has gone. I say intermittency of exposure is the rule, not the exception. And there is also a fact that governing agencies, regulatory agencies have chosen to ignore the fact that there is in situ intermittency that is based on the use of personal hearing protection, particularly where those personal hearing protectors are used properly in an OSHA-type hearing conservation program -- never been credited by any agency. Furthermore, longitudinal, epidemiological studies prove that the 5 dBA exchange rate works extremely well in preventing occupational noise-induced hearing loss well below historical damage-risk criteria and percentage-risk criteria used by MSHA and others, and I would maintain if it ain't broke, don't fix it. Other claims include, in the absence of fact, that the equal energy hypothesis is convenient, appealing, makes instrumentation easier, and a whole a lot of other things that in today's world are not true. Finally, I would point out that the three-versus -five issue is clearly resolved by NIOSH in its criteria document of April 23, 1996, in the following way. And I was a little surprised, I must say, interject, that MSHA did not pick up on this specific technical error of some magnitude. And that is to say, NIOSH attempted to use an intensity analysis to prove the equal energy hypothesis, and when one corrects their flawed intensity analysis, one finds that they are recommending the 6 dBA exchange rate as the proper choice, which is further underscored by Vice and Hanson, and it is, in fact, the latest scientific and best available evidence that their widely acclaimed reference of 1996 provides. I urge you to maintain the 5 dBA trading relationship and not to get caught up in the 25-year-and-more controversy of the equal energy hypothesis. Remember, we won World War I, World War II, and we are not much interested in the problems that Europeans have in their noise regulation, because unlike a comment that I've also found in the MSHA proposed rules, we have to realize that there is very little-to-zero enforcement of these principles in Europe and other countries. My third priority is to establish the overall primacy of the hearing conservation program per OSHA 3883 regulation, the current standard. And I would point out that the hearing conservation program comments within the proposed rules are not very true to what the real program should be like, and, in fact, MSHA finds itself in the awkward position of saying, in essence, a program that it doesn't have doesn't work; and that's, I found, an awkward position to take. The hearing conservation program also does not appear in either the benefits-of-cost charts on page 66350, and there is no total annual cost representing all required elements of an effective hearing conservation program. We recommend that MSHA change its hierarchical approach of the proposed rules to give due primacy to the hearing conservation program as the best proven, best available evidence of the overall method of preventing noise and induced hearing loss for individual miners, which should be the overriding and preeminent objective of the proposed rules. I find the fractions being discussed about who will be protected, who will not be protected, who will be saved, to quote MSHA, and who will not be saved, very, very disconcerting, and one would hope at this juncture, as we enter the next millennium, that MSHA and other agencies would catch up with what's actually going on out there in industry in regard to hearing protection and the context of a hearing conservation program and what that difference implies. My fourth priority is to require that economic feasibility should reflect the cost to meet the PEL and not what has heretofore been discussed and proposed even 25 years ago as lowest-level feasible. I don't have time to go through all the reasons for discussing this problem, but it should be brought to MSHA's attention that the standard and the PEL should be one and the same, even in context of the requirements of the Mine Act. In fact, as most of us who work in this field know, in actuality, the standard is a device with which you make the measurement, and that's what determines all of the facts and consequences to those facts that -- according to these kinds of regulations. The fifth priority I have is that we should require in all applications of personal hearing protection, and I didn't see it mentioned in the MSHA requirements, but it's most important, that the MSHA I method be used, particularly versus arbitrary derating of person hearing protection devices; and, moreover, that MSHA should retain the personal hearing protection device adjustments of exposure levels. And in the context of an effective hearing conservation program, as I said, not of the type that is outlined necessarily in this particular set of proposed rules, but in a strict accordance with the OSHA noise regulation of March 8, 1983, that these kinds of performance of personal hearing protection are best evaluated by that process, and that all the other processes are mere speculation. Whether it's the laboratory data, field data, performance data, the real performance is what's going on with the individual miners that have to wear these devices, and how is the best way to evaluate that on an annual basis? The other priority that I have, which is my sixth priority, is it's essential to maintain mine operator flexibility of choice of how they pursue occupational noise-induced hearing loss prevention and related compliance methods. I have written a piece which is far too long to accommodate at this time, but MSHA has included within the proposed rules what I call a paradox of inflexible flexibility, and that has to do with this process whereby engineering controls are actually placed first, even though there is said to be no hierarchy, and administrative controls second, and there is a consequence of engineering controls required that says basically -- and administrative controls that says basically you try what is agreed by the agency to be feasible regarding engineering controls; and then if that doesn't work, then you go over to the administrative controls. So there is a definite hierarchy in this process, and you can find that hierarchy at pages 66453 through 66456. My seventh priority is that MSHA should provide realistic cost-impact estimates that address the requirements stated in the proposed rules, that is, for example, as I've already said, at page 66454, column one, line 31, the all-possible, as much as possible requirements for which it may be extremely difficult to put cross numbers on them, and also at page 66356, column one, line 54, where MSHA says it generally considers a reduction of 3 dBA or more to be a significant reduction of sound level -- hear me, sound level. Remember, the Commission, in the paragraph immediately preceding that, was quoted as talking about exposure level. Of course, the difference between noise and noise level, sound and sound level, exposure level and noise permeates this document. In fact, I could direct you to many, many instances where the word "noise" is used where the "noise exposure" should be used, where "sound level" where "noise exposure" should be used, and this is another example. And it brings up some very serious questions because if, in fact, the Agency is struggling with a determination or the difference between noise and noise exposure and sound levels and exposure to sound, then one wonders how, when at page 66454, at line 43, column two, MSHA, the knowledgeable, I quote, and active partner, can, in fact, go back and forth between noise exposure and the sound levels measured at sources. This requires some very, very sophisticated modeling. I don't know whether it's appropriate to ask now or not. May I ask a question of the panel? The question I would like to ask is the following. Can MSHA describe the models, software codes, protocol, whatever that it uses in the presence of multiple sound-source environments to evaluate the existing exposure determined by measurements, presumably statistically valid measurements -- we can get into that as well -- and then what process, what models, specific models are used to deconvolute those exposures back to required noise reductions for each and every one of the contributing noise sources. We are in an age of design by analysis. The next millennium we will address and continue with those kinds of procedures. So I would like to know how do you go back and forth between exposure levels and sound levels and make a determination about individual sound-source reduction in the face of a given exposure determination. MR. CUSTER: The question has been noted in the record and will be addressed after the post-hearing conference. MR. DEAR: I understand it's a complicated question. I just wanted to make sure that we are all aware of what those statements on those pages actually imply. What they imply is that the technical support, I believe is the quoted group within the agency, has all these capabilities, and my interest is to know what those capabilities are, and I can tell you, the world will beat a path to your door if you have these advanced capabilities, and they involve very sophisticated technical models, and I would like to know exactly what MSHA is talking about and, in essence, what is the backup for the claims made on page 66454, 66455. I don't know where I am with the time. Ms. Silvie, could you help me? MR. CUSTER: How close are you to the close of your statement? MR. DEAR: Well, I could go on quite a while, but I could close by saying, and if necessary, I could come back. MR. CUSTER: Okay. If you would help us out here because of the number of speakers we have, in order to give others an opportunity, if you would close out soon -- MR. DEAR: Yeah. I'll agree to stay as long as necessary and come back as required. MR. CUSTER: We would certainly appreciate that, sir. MR. DEAR: Fine. My tenth priority was going to be to identify and correct a number of technical errors, false claims, and oversights that I saw in the proposed rules. I gave NIOSH a grade. I teach acoustics and noise controls as some of you know. I have done so for many, many years. And I chose to grade the NIOSH definitions, and there were 32 definitions, and I could only come up with a grade of about 45 percent, being very, very liberal. I realize that MSHA had the opportunity to copy over those definitions, and I'm really glad you didn't. However, I would just like to point out that there are problems with the definitions that have been presented, detailed technical problems. For example, there is one that talks about the A-weighting network. It's gotten right the first time, wrong the second time, but the key is, I'll point out to you now, that the MSHA definition does not state what goes on at a kilohertz correctly. At a kilohertz, the A-weighting is plus or minus zero. That is not what's in the definition that MSHA has presented, and I wanted to point that out to say that's where I would start, and now I'm going to conclude. Thank you very much. MR. CUSTER: Thank you, Mr. Dear. The next scheduled speaker is Joe Main of the United Mine Workers. MR. MAIN: Good morning. My name is Joe Main, M-A-I-N. I'm with the United Mine Workers of America, and the first thing I want to do is commend the Agency for moving forward to revise a rule that has needed revisions for quite some time, and that is the noise rule that we are discussing today. It won't be long until you're sitting down and writing that final rule, whatever it may be, but I think as you do that, you do need to understand that you pick this up through the comment period, that there are some shortcomings to the rule that you have proposed. If the Agency issues a final rule that will, in fact, prevent the occurrence of occupational noise-induced hearing loss among miners, significant changes in the current rule will have to occur, and, moreover, improvements will be necessary beyond those that were proposed in the December 16, 1996 Federal Register. It should be pointed out that some of the standards proposed by MSHA ignore protections contained in the 1977 Mine Act and Title 30, C.F.R. Since these rules are being developed for the purpose of miners from hearing loss a the work place, MSHA needs to understand what miners want and need to accomplish that. First and foremost, miners do not want to suffer hearing loss as a result of their occupation as a miner, and I think that is the first thing that everyone has to understand is the primary hope of these rules in the minds of miners. Now, they have a right to expect that, and employers have an obligation to make sure that miners are protected against such damage to a special and critical sense placed in the human body. Mine operators have the responsibility to factor that in as they design the work places for miners, and we think that's a lost equation in the way that the mining industry has been structured over the past several years. A loss of hearing has a long-term repercussion to miners. God gave human beings a sense for reason, and I think we need to all understand that, and anyone who has become hearing impaired knows quite well what the difficulties of life are. Being hearing impaired creates difficulties in just carrying on communications with people in a social environment or other environments. If you go to an event or an activity where listening is part of the event, it's difficult to function socially, to understand what's going on. For the hearing impaired, "What did you say?" or "What happened?" becomes part of their normal vocabulary. They have to keep seeking from someone else in a different way of communicating what's going on in the world, what's going on in their environment. Ask the hearing impaired how difficult it is to move around in the world's environment. Like in a coal mine, the ability to hear in the general environment is important to enable one to keep out of harm's way. Loss of hearing puts people in danger. So it's very important that these rules serve to protect miners against a loss of hearing in the work place. Secondly, miners don't want their hearing intentionally impaired in the work place as the means to achieve protection against occupational hearing loss, and what that simply means is, don't put me in an environment, cut off my ability to hear to protect my hearing as a means to prevent me from being hearing impaired. That's not what they are looking at as a solution. Having one's hearing obstructed in a work environment is a last resort, not a first step to fixing a problem. When the numerous hazards that can harm you in the work place are being placed in confined spaces where equipment and machinery is moving around, taking away this sense of hearing is not a wise idea. Placing workers in locations where they are subject to being crushed by equipment or materials in cutting off their ability to hear noises that may warn them of impending harm is not the proper choice of solutions for protecting miners against the risk of hearing loss. The proper choice is to reduce the noise level at a source. In the coal-mining industry, these principles somehow became like a lost ball in tall weeds. As a result, controlling noise levels at their source as a method of protecting miners from occupational hearing loss was conveniently replaced by simply handing miners ear plugs, accompanied with work rules to wear them, regardless of the hazards of the work place. Miners deserve better than that. Congress, in the passage of the 1969 act, recognized this concern. The legislative history of the '69 Coal Mine Health and Safety Act points that out. As a result, Congress placed a requirement in Section 206 of the Mine Act which would guard against the use of personal protection to control miners' noise exposure where they would pose a hazard to the miners. That's currently in Section 206 of the Mine Act. That congressional concern seems to be forgotten in the proposed rules. It is also unfortunately ignored with the application of the current rules. Many miners believe that mine operators ignore noise-reduction solutions and work place hazards by simply handing them a cheap set of ear plugs. They don't check to see if that even results in a hazard to the miner. It's time to end this negligent approach. Emphasis in the rule must be geared toward requiring operators to pursue meaningful engineering controls to reduce noise levels at its source. The final rule should be technologically forcing. Although it is the responsibility of the operators to develop noise-reduction controls, I would urge that all sectors of the government that have some responsibility to protect miners from hearing loss be called upon to help. The Mining Research Center of NIOSH should be called upon to identify noisy mining environments and help find solutions to engine those out. MSHA needs to be more diligent in identifying noisy work locations in the mining industry and providing guidance on solutions to engine those out. Our organization is willing to join that effort. The Agency also needs to be more mindful of the current law requiring mine operators to employ protective systems to reduce noise as opposed to personal protective devices that may cause a hazard to miners. Miners want a noise exposure level set that protects them against hearing loss. When MSHA issues the final rule, they must be able to tell miners that they should expect to spend a career as a miner and not suffer hearing loss as a result of their occupation as a miner. MSHA needs to tell them that they have not increased the risk of injury or illness from other factors as a result of the rules that they will employ. Miners want quality surveillance of the work place to assure that noise levels are maintained at levels that will not impair their hearing. They also want a system in place that will require immediate corrective action if noise levels exceed established levels. Surveillance by the mine operators and government agencies are important to achieve this. Congress recognized this important part of assuring that miners would be protected against harmful noise levels at the mine as they constructed the 1969 Coal Mining Health and Safety Act. The legislative history on that Act shows that they were insistent on requiring mine operators to conduct tests of noise levels of the mine and both MSHA and NIOSH certification of those results. Congress placed a requirement in Section 206 of the Mine Act that was very straightforward. That section required mine operators to conduct tests at least every six months of the noise levels at the mine and report and certify the results to two government agencies, now MSHA and NIOSH. Those are currently contained in 30 C.F.R., part 71.803. Instead of strengthening that standard to improve work place surveillance, the proposed rule instead basically abolishes it. That is contrary to requirements of Section 101(a)(9) of the Federal Mine Health and Safety Act. Miners want the opportunity to have their hearing acuity tested to determine if they are being adversely impacted by the noise level in the mining environment. Mine operators should be obliged to provide these tests at no charge to the miner in a way that provides for accurately and integrity. If their hearing is being impaired, they have a right to know. I think it's that simple. I've only touched upon some of the issues of concern today to miners with respect to the rules. During the comment period on these important rules, you have heard from many miners and their representatives about the problems identifying the inadequacies of the current rule and the need to have meaningful fixes to those. You have heard that miners are having their hearing impaired as a result of their occupational exposures. You have heard about mine operators who have ignored fixing noise problems. You need to listen carefully at these comments, which is sometimes something that some of the miners are no longer able to do. You must, in the end, issue rules that really work to end hearing impairment at the work place and in a way that doesn't create other risks to miners. Thank you. MR. CUSTER: Thank you, Mr. Main. The next speaker scheduled is Dr. James Weeks of the United Mine Workers of America. MR. WEEKS: Good morning. I appreciate the opportunity to speak on this set of rules that you all have proposed. My name is Jim Weeks. I'm an industrial hygienist. I worked for the United Mine Workers for about 15 years, and during those 15 years and when I've talked to the members of the union, I've been impressed with how frequently and with such concern miners raise noise exposure as a significant problem. So I think one of the things that you've accomplished with this rule is simply to recognize that noise exposure is a problem in the industry. The second problem is that the current regulations are obviously defective in a number of ways. And, finally, I believe, in general, in the current situation there is inadequate attention given to engineering controls over hearing protection. Let me detail some of the ways in which the current rules are defective. First of all, the 90 dBA exposure limit is excessive. The 5 dBA exchange rate is excessive. The current exposure measurements integrate at 90 dBAs. There is no action level. The provision for hearing conservations are very weak and are only required after a citation which occurs at 130 percent of the PEL. There is allowance for hearing protection in considering the citation, and administrative controls are monitored in very weak ways. The rule that you propose makes improvements in some of these areas, and I wish to recognize them and support them. First of all, you've created the concept of an action level, which didn't exist before in the industry, and I think that is a step forward. Second of all, noise exposure measurements integrate at 80 dBA rather than at 90. Third, the provisions for a hearing conservation program are a significant improvement over what has existed in the past, and the hearing conservation program itself is called -- is required to be implemented after an action level of 85 decibels. You removed the adjustment for hearing protection in determining citation, and the administrative controls are posted for review, so there is more attention given to administrative controls. Those are all steps in the right direction, and we support those; but there are several features of the proposed rule that we do not support. First of all, you've failed to demonstrate that adopting a PEL of 85 dBA and an exchange rate of 3 dBA are infeasible. The requirement for operators monitoring noise exposures is totally inadequate. Third, while the preference for engineering controls is stated in one part of the proposed rules, this preference is significantly weakened throughout the rest of the rule. I'd like to comment on each of these and a few more in the time that I have. First of all, you've failed to demonstrate that adopting a PEL of 85 dBA or an exchange rate of 3 dBA are infeasible. You refer to a couple of review commission decisions that outline criteria for feasibility, and yet you did not apply them in evaluating the 85 dBA PEL. Ironically, in those decisions that you referred us to, the review commission found that the engineering controls that were being proposed by MSHA in those proceedings were found to be feasible by applying the criteria that the review commission had developed. Now, it does not appear that you calculated, in fact, any costs associated with 85 dBA limit, and yet you base your decision to reject it on the question of feasibility, presumably which would address the question of cost, yet you gave no basis for making that determination. Now, there may be some narrow interpretation of the Mine Act that you only have to show feasibility for the standards that you propose rather than infeasibility for the ones that you reject, but given the superiority of the 85 dBA PEL and the 3 decibel exchange rate, first of all; and, second of all, given the requirements of the Act that you are required to show the highest degree of protection available, it would seem to me that you should go back to the drawing board and make a realistic consideration, in fact, really consider the 85 dBA PEL and the 3 dBA exchange rate. It looks like you simply looked at it and said, "It's not feasible; let's go to 90," and you've done your cost calculations based solely on 90. I think that if colleagues of mine or others in the health professions had presented data on health effects with as little documentation, it would have been dismissed as being out of hand, and I think the standards of analysis and presentation that are required in practice of those of us in the health profession should also apply to cost estimates as well. And if we had done what you have done for the 85 dBA exchange rate, nobody would have believed us. All right. Secondly, the requirement for operators monitoring noise exposure is completely inadequate. The rule states, and I'll quote the whole rule minus a couple of prefatory words, that the operator establish a system of monitoring which effectively evaluates each miner's noise exposure. This is vague. It's unenforceable. It creates not basis for accountability. It would almost be better for MSHA to conduct all measurements of exposure rather than to have this language. Let me show you what's missing. First of all, you haven't said what "effective" is. Second of all, you haven't said anything about the frequency of measurements or about the instruments, which instruments should be used, how they should be calibrated. You've said nothing about the qualifications of the person to monitor exposure. You've said nothing about the person's qualifications to calibrate exposure instruments. You've said nothing about calibration. You've said nothing about which occupations to sample or what the operating conditions ought to be during sampling, and you've said nothing about record keeping. So I think in this industry, in coal mining, in particular, we've just gone through a 25-year period that has come to a head over the past several years concerning sampling for respirable dust in which mine operators were given extensive responsibility for measuring exposure to respirable dust under much the same circumstances as this, and extensive fraud has been found in that program, which is regulated more than anything in the noise program. So it would seem to me that this language for exposure monitoring is simply an invitation to abuse. Now, secondly, or third, wherever I am at this point, oh, yes, well, the preference for engineering controls is stated in one part of the proposed rule, in 62.120. This preference is significantly weakened by provisions throughout the rule. In fact, it's mentioned nowhere else in the rule that demonstrate, in fact, a preoccupation with the use of hearing protectors as the principle means of reducing exposure to noise. In fact, it seems like the rule is more interested in documenting the deteriorating of hearing rather than in preventing it. As we stated above, the word "feasible," I think "feasible" should be, in fact, removed from this section, and, in fact, feasible should be considered at the standard-setting stage rather than at the enforcement stage, because if feasibility is a consideration when it comes to enforcement, then in each and every enforcement activity, someone is going to have to consider feasibility. This is an unnecessary burden. I think feasibility should be presumed, and it should be up to if a mine operator is going to claim that something is infeasible, it should be up to him to demonstrate that rather than simply say -- it appears that what the mine operator could do now is say, "Engineering controls are not feasible; therefore, we're going to hearing protectors as the principle means of protecting miners' hearing, and it seems to me that's what the operator could do with this rule, is simply write the rule, write the letter that says it's not feasible; we're going to do hearing protection, and there would virtually be nothing that you could do to prevent that from happening. Now, another matter, as it pertains to engineering controls, is that the way it's currently worded, you write down "engineering controls" or "administrative controls" and put them essentially on the same level, as if they were equivalent. They are not equivalent, they should not be treated as being equivalent, and they should be treated separately. Let's see. Now, I think that support for engineering controls could be written into the rule in several ways. As I mentioned, it should be presumed that engineering controls are feasible. It then should be up to the operator to demonstrate that it's not in any given situation. An operator might have to submit its effort for review, document the situation, give it to the agency for review, have miners and their representatives comment on that, and make a decision based upon what the miner says and what the mine operator says and what miners say about a proposed modification in a way from the presumption of feasibility. Now, this rule, as in many other safety and health regulations, this rule should be a technology-forcing rule, and I don't see any evidence that you're forcing the development of engineering controls for noise exposure. A second place that engineering controls could be supported is by including it in the hearing conservation plan. Now, under OSHA, there are several features under the OSHA hearing conservation plan that are not present in this, specifically monitoring exposure and search for engineering controls to reduce the generation of noise; and I think both of those features in the OSHA plan should be included in the hearing conservation plan here for miners. Now, there are a number of problems which I'll just mention in passing. First of all, I think miners should be given a much broader range of choices for hearing protectors. One plug and one muff is really not much of a choice at all. I would think, given the variability in the performance of hearing protectors, given the variability in miners' preferences and so on, I think there should be a broader range of choices amongst hearing protectors. And, okay, I think that gets me to the end of my comments. Should I wait for any questions? MR. CUSTER: Thank you, Dr. Weeks. I would like to remind anyone who has commenced since the hearing commenced, there is a hearing sheet outside the auditorium. The table would be to your extreme right-rear. We would like for you to sign that sheet, please, if you haven't already done so. We would like to recess for a 15-minute period -- make that 10. (Whereupon, at 10:55 a.m., a brief recess was taken.) MR. CUSTER: Again, I'd like to point out for the latecomers that any of you who wish to offer a statement and have not yet been placed on the speakers list, if you would kindly make arrangements with Mrs. Fontaine at the extreme right of the table, she will be happy to accommodate you, and then you will be given the opportunity to speak once the schedule of the speakers is complete. MS. SILVIE: Let me make another comment right now, too, and that is to reiterate that we are extending the post-hearing comment period to August 1. Now, we are being noticed in the Federal Register to this effect, but as I said earlier this morning at the outset, we are extending that post-hearing comment period until August 1, and I will make such an organization again before the hearing closes. Thank you. MR. CUSTER: A note in passing, that anyone who wishes to have a transcript made available for their own use will need to make arrangements with the court reporter. We are going to have a transcript obviously for our purposes which will become part of the record, but we cannot duplicate that for you. You will have to purchase your own copy through the reporter. The next schedule speaker is Linda Raisovich Parsons of the United Mine Workers of America. MS. PARSONS: Good morning. My name is Linda Raisovich-Parsons. That's spelled R-A-I-S-O-V-I-C-H, a hyphen and P-A-R-S-O-N-S. I'm here today on behalf of the United Mine Workers of America. I'm a third-generation coal miner and have been employed in the coal-mining industry for over 21 years. I began my mining career in 1976 as an underground coal miner with U.S. Steel Mining Company. Later, in 1980, I completed coal mine inspector training at the National Mine Health and Safety Academy, and I worked as an inspector for the UMWA in our former District 29, covering Southern West Virginia. For the past 14 years, however, I've been employed in the Union's Department of Occupational Health and Safety as a legal legislative assistant. Part of my duties in this position is to coordinate the MWA's participation in the rulemaking process. MSHA's original notice of proposed rulemaking for underground coal mine standards appeared in the July 9, 1982 issue of the Federal Register. I took this position in January 1983. Consequently, I've had the privilege of reviewing and responding to nearly every standard the Agency has reviewed. During that time, the Union has on many occasions been at odds with MSHA over some of the changes that it has proposed. However, after reviewing the proposed noise standards, I was quite disturbed by the illusion this proposal creates that improvement has been made. A close look at the rule reveals that any improvement to reduce miners' exposure to noise is quickly defeated by the lack of sound-monitoring and enforcement requirements. Perhaps the most counterproductive part of the proposal is the lack of sound-monitoring requirements. The rule proposes a system of monitoring noise which is "performance oriented," or in other words, self-enforced by the mine operator. The mine operator will be solely responsible for establishing a system of monitoring noise and taking appropriate action under the rule whenever they find themselves out of compliance. I find this quite disturbing, especially after the lessons that should have been learned by the senior system for monitoring respirable dust. Under those rules, mine operators have been perpetrating fraud for 25 years. I would hope the Agency could see that such a proposal is an invitation to abuse, especially when closely engineering or administrative controls are at stake where noncompliance is found. A good analogy to this would be to eliminate the highway patrol and ask everyone who exceeds the speed limit to pull over, issue themselves a ticket, and pay a $500 penalty. I don't think too many speeding tickets would be issued. Similarly, I don't think very many operators are going to voluntarily declare that they have a noise problem and they would spend money for engineering controls. Furthermore, adding to this dilemma, MSHA's role will be limited to taking periodic measurements whenever they deem appropriate and checking the operator's record at the mine site. Since there will no longer be any reporting requirements, the Agency will have to rely on the inspector's assessment of whether the mine is in compliance with the noise standards. I have traveled with MSHA inspectors and know the enormous responsibility they have to complete timely inspection of an operation. They generally have a zillion records to review and a huge amount of territory to cover in a specific time period. I fear that the noise records will become the least of their priorities and will be lost in the shuffle of getting their inspection completed in a timely manner. Consequently, the Agency will have no reliable means of effectively monitoring the noise program. UMWA believes that the only means of reliably monitoring noise levels in a mine will be by MSHA taking responsibility for conducting surveys and enforcement of the standards. There are a number of other problems with the proposed rule. Since my associates have and will be addressing these in more detail today, I will only summarize my main concerns, which include, one, the Agency has proposed the elimination of any reporting requirements for noise survey results. This is one of the main means the Agency has to monitor the noise level at a mine. Elimination of this requirement is in direct conflict with Section 206 of the Mine Act, which requires: "Beginning six months after the effective operative date of this title and in intervals of at least six months thereafter, the operator of each coal mine shall conduct, in a manner prescribed by the secretary of health, education, and welfare, tests by a qualified person of the noise level at the mine and report and certify the results to the secretary and the secretary of health, education, and welfare. The reliance on records kept at the mine will severely limit the Agency's ability to assess noise levels in the industry, especially when they are only kept while a violation exists and thereafter for six months. Two, the proposal ignores several recommendations made by NIOSH. NIOSH recommends that the presbycusis factor not be used because the data on age-related hearing loss describe only statistical distributions in populations and cannot be generalized to the experience by an individual in that particular age group. We also recommended that the rule adopt a 3 dBA exchange rate instead of the proposed 5 dBA exchange rate. A 3 dBA exchange rate has a stronger scientific foundation and is more protective and is used in most other industrial countries. The UMWA agrees with these NIOSH recommendations and urges the Agency to adopt them in these rules. Three, under 62.120(b)(1) of the proposal, the operator must provide training to the miner whenever his or her exposure level exceeds the action level. The Agency goes into extensive argument in the preamble as to why this training should not be included as part of the Part 48 annual refresher training, but the interns -- only permits it in the rule. The annual refresher training does not permit enough time to adequately cover the subjects now that is currently required to be jammed into an eight-hour session. This has, and has been, a complaint about the annual refresher training among the majority of the industry, union and management alike. I don't see how MSHA expects to squeeze the enormous training requirement in this training and expect it to be served justice. And, last but not least, the Agency proposes that all records be maintained at the mine by the operator. Section 62.200(a)(2) proposes that the mine's representative will have access to training records compiled under Section 62.130 and copies of notices made pursuant to 62.120(f)(2). The miner's representative will not have access to audiometric test results without written consistent of the affected miner; however, these records will be maintained by the operator and provided to MSHA without restriction. We would like the Agency to provide explanation for this proposal. If there is a question of medical confidentiality, such a proposal actually promotes the violation of confidential medical records by establishing the mine operator as the record keeper. Audiometric test exams are medical records. Like all medical records, they should remain confidential and released only with the miner's written consent. The mine operator is neither a physician nor an archivist of medical records. His fundamental responsibility is to operate the mine in a safe manner. The only reason the mine operator should know of noise-induced hearing loss is to report under Part 50 rules. This information can be provided to the operator by the audiologist without violating confidentiality. To require the mine operator to be the keeper of confidential medical records is a violation of medical ethics. Noise is a health hazard. Exposure to noise is under the operator's control. The operator should keep the record of exposure to make intelligent decisions about controlling noise and complying with exposure limits and leave the medical records to the medical community. Under Part 90, when a miner shows evidence of development of pneumoconiosis, notice is provided to the miner alone. The operator nor the miner's representative has knowledge that the miner has been determined to be a Part 90 miner until that miner chooses to exercise his option to transfer to a less dusty area. We believe the noise standard should be patterned in a similar fashion which maintains the miner's medical confidentiality. The rules focus on exposure levels in controlling noise instead of miners' hearing impairment. The Union has many other problems with the proposed rule; however, as stated, my associates in our comments will address those. In closing, I'd like to say that being a coal miner, a daughter and granddaughter of coal miners, and raised in a coal-mining community in southern West Virginia, I have witnessed firsthand the tragedy of occupational illness among coal miners. My father, who died at the age of 56, was disabled with black lung and hearing impaired from -- with the stoker. Unfortunately, the loss of lung function and hearing are permanent. The only way to avoid this tragedy is through prevention. I urge the Agency to go back to the drawing board on these rules and make them more acceptable. Thank you. MR. CUSTER: Thank you. Mr. Ed Plowcha. I'd like to point out that the assistant secretary of labor from Mine, Safety and Health is, indeed, in the audience in the rear, Mr. J. Davitt McAteer. The deputy assistant secretary is also in the audience, seated behind Davitt, Andrea Ricoh. All right, sir. MR. PLOWCHA: My name is Edward J. Plowcha. That's P-L-O-W-C-H-A. I've been a coal miner for 22 years up in Homer City, Pennsylvania, the Luzarne 6 extension mine owned by the Helvatia Coal Company, which is a subsidiary of the R&P Coal Company. I'm a member of the local Union 488. I'm chairman of the Safety Committee. I've been chairman for about a year. I've been on the Safety Committee for four years and two years at a previous mine. I want to tell you how engineering controls have resulted in a noise problem at our mine. On July 2, 1996, a MSHA inspector did a supplemental noise survey in the two-left section of the Luzarne 6 extension mine. The results showed a noise exposure level of 173 percent in the environment of the continuous miner operator. The continuous miner was along Air Ducts 525. When the last part of the -- was discovered, it gave off a loud, high-pitched howl or a wail. The first reaction of the company was, of course, to issue everyone ear plugs. The maintenance foreman at the mine decided he could design a scoop or a deflector that could deflect noise away from the workers. It was just metal welded together, welded onto the frame of the machine over the scrubber discharge outlet. It worked very well. The difference was noticeable, very, very noticeable. When the inspector came back on July 11th, he ran another noise survey, and the noise exposure level was 81 percent. This showed that it's possible to engineer out noise problems. This is important because ear plugs not only block out harmful noise; they also block out helpful noises, noises necessary for communication and safety. When I bolted the roof, there was a variety of different types of rock above the seam, above the coal seam, mostly mixes of slate and sand rock. The sand rock would give off a loud, a high-pitched squeal when you drilled it, but if you wore your ear plugs, you couldn't hear the difference of what you were drilling. It was hard to determine exactly what kind of roof you had. If ear plugs would have been required, I don't think we could have been able to detect changes in the roof that could cause roof failure. Ear plugs, in effect, induce a state of temporary hearing loss. It is much more difficult to communicate. A person running a machine with ear plugs may not hear an individual calling to stop him, maybe in an emergency situation. A person with ear plugs may not hear when the roof may warp or chip. He may not hear a machine coming at him. He may not hear a lot of things. In the mine environment there are so many variables, it is impossible to imagine all the things that could happen. Ear plugs are a second best. Why subject the miner to needless hazards by requiring ear plugs when engineering controls are possible. Questions? MS. PILATE: I would like to ask you some questions about the mine where you work. How many employees work at your mine? About how many? MR. PLOWCHA: About 160 union, maybe 25 company. MS. PILATE: Does your mine cover noise on its annual first returning? MR. PLOWCHA: I don't know for sure. MS. PILATE: Does your mine offer annual audiometric exams? MR. PLOWCHA: No. MS. WESDOCK: I just have one simple question. MR. PLOWCHA: Okay. MS. WESDOCK: You said that you developed an engineering control for the continuous mine machine. MR. PLOWCHA: Pardon? MS. WESDOCK: The machine that you were talking about that you developed an engineering control. How long did it take you to come up with that engineering control, and did you have any idea of the cost? MR. PLOWCHA: I don't know what the cost would be. It was designed by the maintenance workers at the mine, and it was less than a week. I'm sorry. MS. WESDOCK: It was less than a week? MR. PLOWCHA: It was less than a week. MS. WESDOCK: Okay. Thank you. MR. CUSTER: Thank you. Mr. John Hitchings. MR. HITCHINGS: My name is Jon Hitchings. That's J-O-N H-I-T-C-H-I-N-G-S. I'm a United Mine Worker for 16 years, Safety Committee chairman at the Early Number 1 Mine. That's Keystone Division, R&P Coal Company. Just a few things I wanted to talk about, like Ed did, that there is ways of maintaining these machines as far as the noise, and it's not -- you know, the cure is not to put hearing protection on the people. I work with people that do have hearing problems, and I encounter dangerous situations with them. At our mine, with the different conditions that we've had over the years like miners out of compliance, machines out of compliance, one problem I always had was the persons affected were always the mine operators, okay, the six people, whatever it is. What about the person that takes his place if that person is off? That could be four months, five months. They are not accounted for. Okay? When you're downsized the way we are in our mine, that happens. You're changing people in and out all the time. These people are affected by that, but yet they are not in the figure, you know, when the test was taken at the time. I feel that it should be, you know, everyone in that section, not just a certain machine, because you have a lot of things involved. We stagger. Okay? Other people come run the machines; they are involved in that, but yet it might not be an eight-hour day, but they still, over the long haul, they are involved in it. Back then, when I first started in the mines, you had pan lines and things like that. We weren't recognized as having a problem. We were never tested for the noise back then, you know, and over the years it affected you. Now, you have the machines that today that they run so fast that you can't keep the coal chain full of coal in order to keep the noise down. There's a lot of different problems with that, but I think one of the biggest problems is educating the people as far as your miners, regardless of company, union, on wearing the hearing protection. If that's your choice, that's fine. If the company makes that a policy, which we have in our mine, anyone in by the last open cross-cut is to wear the hearing protection. We have older people, I talk to them every day. Their theory is, well, I'm getting older. What's the difference anyway? Well, it makes a lot of difference. Now, if something needs to be enforced on that, if you're going to use that as your option other than fixing the machine, the hearing protection, it needs to be enforced, not that's the cure to keep MSHA from issuing a citation as well; we have them wearing hearing protection. Now, I'm going to be honest with you. When they are around, they wear it; when they are not, they don't. And it's not because they don't feel that they should; it's because there's to many factors against you, you losing that sense of testing the roof or listening to the roof, the roof conditions in the mine. You need those. Whenever certain people are around, they wear it; when they are not around, they don't, and the company doesn't enforce that. They will stand right there beside them. Just a couple of more things. We've had two or three miners, continuous miners in our mine that have been out of compliance. Okay? And it's too costly -- I hear people talking about it's too costly to change them, but yet why when the machine goes out for a rebuild and it comes back, it's in compliance? I don't understand that. There's millions of tons mined over that machine, and we have to wear the hearing protection. It can't be fixed, but yet when it goes out for rebuilding and it comes back, it's okay. There's got to be some way of getting that straightened out before it enters the mine. I don't know how. I'm not an engineer, but I've seen that three or four times. And one last thing, you're going to be listening to a guy I work with, and he does have significant hearing loss, and if he would fall under this changeout, as far as if the person is affected and he is taken out of the area, I think there is a big problem with that because due to the downsizing of your people, what do you do if there's not enough people? Do you just leave them on there? Who is going to enforce that? Who is going to enforce that he is taken out of that affected area at that time? Now, it doesn't happen now, so I think you need to look into that a little bit closer as far as fixing the machines, not moving people around to get them out of the affected area. Go to the source of the problem; don't move the people around. One last thing on this person that you will be talking to, he has been in the mines quite a while, and what I need to know, he is affected by it; he has 58 percent hearing loss. What are you going to do for him? This is under the new rule. What about him down the road? What happens when our mine shuts down, and where is he going to work? Nobody is going to take him. He does fine, he works hard, but nobody is going to take care of him as soon as this mine is done. There should have been something done a long time ago. Thank you. MS. PILATE: I'm curious to know how many employees work at your mine. MR. HUTCHINGS: Approximately 145. MS. PILATE: Does your mine cover noise in its annual refresher training? MR. HUTCHINGS: No. MS. PILATE: Does your mind off an annual audiometric exam? MR. HUTCHINGS: Just to the people that are affected as part of the machines out of compliance. You know, the machine might not be there now, but those are the only ones that still get tested. MS. PILATE: Thank you. MR. CUSTER: Thank you. Mr. Jim Miller. MR. MILLER: Hi. My name is Jim Miller, M-I-L-L-E-R. I'm from the UMWA, and I have over 18 years in the mines, and I have a significant hearing loss. It's real bad and everything. The only thing I hear about is wear ear plugs and stuff like that. Well, that won't help me in the mines, stuff like that, because you've got to be able to hear the booth and stuff working. When you hit that sand rock, like he was talking about, to pull the steel out, if you're in gas, you could blow the place up. So I'm not the only one who is going to be having a problem then. Other people's lives are going to be in danger, too. So instead of wearing hearing plugs and things like that, I think they should try to quiet down the machines so I don't have to wear them or anybody else does. That would help us. And another thing I'd like to talk about, talk about all the machinery and stuff. I was in there for 19 years, and I've been around pan lines, jackhammers and stokers and everything like that. They never protected us from that stuff. Well, my hearing is going now, so what are they going to do for me and people like me that have hearing loss? Are they just done in the mines now? And another thing on the paper, it says about smaller operators and everything like that. It shouldn't matter if the company is big or small; they should try and protect everybody's hearing, not just the ones in the big -- that can afford it and stuff like that. That's all. MS. PILATE: Are you employed at the same mine as the previous speaker? MR. MILLER: I can't hear you. MS. PILATE: Are you employed at the same mine as the previous speaker? MR. MILLER: I still can't hear you. AUDIENCE: Yes, he is. MS. PILATE: Yes. Okay. Thank you. MR. CUSTER: Thank you. Mr. Jim Lamont. MR. LAMONT: My name is Jim Lamont, L-A-M-O-N-T. I work for the United Mine Workers of America. I'm the international health and safety rep. I have 23 years' mining experience, 10 years of which I served as the chairman for the Mine Health and Safety Committee at the mine I came from in southwestern Pennsylvania. In the proposed noise standards, many areas need address and change for the sake and protection of the miners. You just heard Brother Jimmy Miller, a miner with 19 years' mining experience who suffers with hearing loss. How would the baseline audiogram work for him? Where are the standards that pertain to him and people like him? Jimmy has a documented 58 percent hearing loss. He has to wear a hearing aid all the time. Any further deterioration of his hearing would basically render him totally deaf. Had there been engineering controls implemented years ago, there would be a lot fewer folks experiencing what Jimmy Miller has to live with every day. A few weeks ago, I received a phone call from a safety committeeman up in my area. He was at the mine operation. What had happened was that the crew was pulled into the office by the operator. They were told they were going to have a noise survey done in their one particular section this day. They were also told during this shift they were required to wear hearing protection. My question to the committeeman was, do they normally wear hearing protection on a normal basis in the section? He says, No; the operator wanted him to wear it just today. My comment to him was, don't do anything out of the normal. Have them operate the way they normally do, without the protection so you have an accurate survey. It's so easy for the operators just to hand out hearing protection like ear plugs; it's a quick, easy fix. It's been abused and will be continue to be abused until mandatory engineering controls are imposed. It's real easy for someone to put up a side at the last cross-cut and say, "Hearing protection required beyond this point." It's real easy to hand out ear plugs, stuff cotton in your ears, wear ear muffs, or a combination of both. That's not going to take care of the problem. We need to take care of the problem at the source. I've seen people operating pieces of equipment in a mining section. If you are operating a piece of equipment that's noisy and you have ear plugs in and the roof starts working, how would you be able to hear the roof? I don't think you could. This brings back another story that just happened a few weeks ago at another operation. The crew was in the bell entry. They were on a continuous hauling section. There was a major cave, a substantial cave in this bell entry. The cave went from the face out by the three cross-cuts. They lost two pieces of equipment in this cave. We were very fortunate we didn't lose any lives. Nobody got injured. Two bridge operators were on the mobile bridges. The one back-bridge operator heard the news, heard the roof working. He hit the kill switch, which deenergized all the equipment. He was able to alert everybody. He screamed, hollered, "Get the heck out of there. It's coming in." Now, had that been the crew I just talked about a little bit ago who was told they had to wear ear plugs that day, they might not be around today. If they were wearing ear plugs, they might not have heard that roof work. They could very well be dead. It only makes good sense to reduce the noise at the source. The need is to implement engineering controls . It is very possible, and it would behoove everybody. We know it's possible because the operation of the mine that Brother Ed Plowcha comes from, he spoke about the engineering controls they implemented there. It was very simple. It was very inexpensive. From what I have seen and believe, it was only a piece of half-inch metal put on an angle to deflect the noise from the scrubber. Real easy. The other people were not required. They did not have to wear ear plugs. It did not diminish any safety. We feel that ear plugs do diminish the safety. It does diminish the safety of the miners. What we need to do is enhance the safety of the miners, not take it away from them. Hearing what's going on inside the coal mine is very important to the active, working miners. We were always taught, from Day One, when you go into a mine, what you want to do is sight-sound-vibration method of testing the roof. And if you're wearing ear plugs, you're taking away one of your senses, which I believe does diminish the safety of the miner. As I said, for many years I served as the chairman of the Safety Committee on Operation. I worked for an IM, an international representative. One of the proposed rules under access to records would require me to have written permission to see an individual's records. Why is it I would be required to obtain written permission to have access to an individual's records when no one else has the same criteria imposed upon them? This proposal, I feel is unfair. It provides everybody else with an advantage over me, and it limits my ability to provide proper representation to an individual. I do have an obligation to represent these people, and I feel that would help diminish my obligation, my advantage to help represent them. Is this proposal introduced because the records are considered confidential medical records? If that is the case, then no one else should have access to these records without written permission. It's just to make it quick and easy and simple, we would like to see that part deleted. That's all. MR. THAXTON: Mr. Lamont, I'd like to go back to the survey that you mentioned. Was that an operator survey or an MSHA survey that was being conducted? MR. LAMONT: That, I'm not sure, but just guessing, I would feel that it was a supplemental survey done by MSHA. I don't really think the operator would tell him to wear hearing protection if they were doing it. MR. THAXTON: So are you indicating that they got the crew together and was told in advance that they were conducting a noise survey? MR. LAMONT: That's what I understood. MR. THAXTON: Would you care to tell us which mine this was? MR. LAMONT: Not at this moment, no. MR. CUSTER: Janice Bradley. MS. BRADLEY: Good morning. My name is Janice Bradley, B-R-A-D-L-E-Y. I'm the technical director for the Industrial Safety Equipment Association. The is the leading national organization representing manufacturers of personal protective products and equipment. Since its founding 1933, ISEA has been dedicated to protecting the health and safety of workers at all work sites, including factories, construction sites, and in particular mining operations. We appreciate the opportunity to review the proposed rule on health standards for occupational noise exposure in coal, metal, and nonmetal mines and submit the following comments. I agree that feasible engineering controls should be used to reduce noise exposure to as low as reasonably achievable. However, we strongly object to Section 62.120, part 831, which states that a miner's noise exposure shall not be adjusted on account of the use of any hearing protector. We believe that when hearing protectors must be used to further reduce noise exposure, that they should be credited as to the amount of attenuation that they provide the employee. MSHA's proposal to disregard all predictors of hearing protector performance does not assist or benefit anyone who administers or is enrolled in a hearing conservation program. In fact, there are many reliable methods available today for evaluating hearing protector effectiveness, all of which get credit for the use of hearing protector devices. In many cases, the use of hearing protectors is the most feasible method to reduce noise exposure in work places such as mines to discount the protection that these protectors provide creates numerous undesirable effects. Such an approach does not account for the real and appropriate protection that these devices provide when they are used in conjunction with the comprehensive, hearing conservation program. If the reduction in exposure that the hearing protector achieves is not taken into account, then why should they be used at all? We are concerned that MSHA is not properly judging the usefulness of hearing protector devices, and it certainly sends the wrong message to the end user on the effectiveness of hearing protectors. By not accounting for the protection that a hearing protector provides, MSHA is effectively giving all hearing protection devices a de facto noise-reduction rating of zero. Such an approach would put the employers, as well as the manufacturers of hearing protector devices, in a precarious legal position in which plaintiffs could claim that the noise-reduction rating is effectively zero, as determined by a federal agency. In contrast to MSHA's proposed wording, OSHA gives credit for hearing-protection devices when they are used by employees to reduce the overall noise level that an employee is exposed to. Because of the safety factors that OSHA may assign, and it's not always assumed that the protection achieved is equal to the stated NLR, and unlike the proposed MSHA rule, OSHA does not completely discount the benefit of using hearing-protection devices. In summary, some workers rely on the use of hearing-protector devices to reduce their overall exposure. We promote the use of protectors as an effective and cost-efficient method of reducing the overall level of exposure and believe it's an essential part of any noise-exposure-control program in the work place. Thank you for the opportunity to comment. MR. THAXTON: I have a couple of questions for you. First, I'd like to go back to the methods that are used for rating -- MS. BRADLEY: Yes. MR. THAXTON: -- hearing protectors. Do you have a recommendation as to which method is most suitable? MS. BRADLEY: I represent about 12 manufacturers, all of whom totally agree on the best method, except that whether it be the EPA method, the night-fit method, the experimenter-fit method, or there is a new method that the S-12.6 Committee just published in a 1997 standard. My point being not to recommend a particular method of evaluating hearing-protector attenuation, but many of them are available, and all of them give credit to the use of hearing-protector devices. MR. THAXTON: The second question goes to your statement that hearing protectors may be the most feasible method. What are you using to determine the fact that it may be the most feasible method? MS. BRADLEY: Again, it depends on exactly what type of operation you are involved in. Certainly the gentleman that described the efficient and quick engineering control that was implemented at his particular mine is the desired method of reducing a worker's overall noise exposure. However, in some instance, it is not feasible. I am not a miner, so I can't give you specific examples. However, we've supplied comments as well to NIOSH in the occupational noise exposure control to the paving and asphalt industry, and in some instances in that case as well there are cases where a person, maybe not for his whole shift, but while he is working in close proximity to a certain piece of equipment that happens to increase his overall noise exposure, he may choose to wear ear protection. We feel that is an appropriate method. MR. THAXTON: Are you then using feasible as saying that the noise level is not able to be reduced or that the fact that cost involved in lowering the noise level, engineering-wise, is greater than the cost of hearing protectors? MS. BRADLEY: I don't think anyone would argue that, you know, throwing ear plugs on people is probably the cheapest method available, and certainly if that's what miners wanted, our manufacturers of hearing protectors would certainly be happy to oblige them. However, that only protects one individual, and it doesn't account for exposures of all the individuals in proximity to the piece of equipment that happens to be particularly noisy. MR. VOLOSKI: I'd like to follow up on one of your answers to Bob's questions. You said that you have several methods of evaluating hearing-protector effectiveness, but all of those methods having done in the laboratory. How would MSHA test effectiveness of a hearing protector on an individual miner? If they do engineering noise controls, that's a simple process, but it would not be real simple if we tried to do it on hearing protectors. MS. BRADLEY: We agree that engineering controls should be implemented. We're not disputing that at all, but we believe that there is a place for hearing-protector devices, and when they are used, they should be credited as such. MR. VOLOSKI: Do you want us to give credit for hearing protectors prior -- MS. BRADLEY: I didn't say "prior." I said if they are chosen to be part of -- MR. VOLOSKI: -- to making a measurement. MS. BRADLEY: If they are chosen to be part of an overall conservation program and you are relying on them to reduce an overall exposure to noise of a worker, then it should be counted. If you are relying on them as part of your program to reduce overall noise exposure, you should be given credit for that. If you engineering controls are successful in reducing the noise levels below their hearing protection would be required, all the better. MR. CUSTER: Thank you. MS. BRADLEY: Thank you. MR. CUSTER: Alice H. Suter. MS. SUTER: Good morning. I am Dr. Alice Suter, an audiologist specializing in the effects of noise on people. A brief resume is appended to this testimony. I am here to testify on behalf of the American Speech-Language Hearing Association and on behalf of the other member organizations of the Coalition to Protect Workers' Hearing, the Acoustical Society of America, the American Industrial Hygiene Association, the National Hearing Conservation Association, and Self-Help for Hard-of-Hearing People. We represent over 100,000 professionals, audiologists, acoustical engineers, industrial hygienists and scientists, as well as individuals with hearing loss. The Coalition submitted written testimony to MSHA on April 21, 1997, and I will present a condensed form of that testimony now. I have also submitted my own comments separately as an independent professional. I have had nearly 30 years of experience in the field of occupational noise, participated in the process of criteria development at both the U.S. EPA and NIOSH, and as manager of the noise standard at OSHA, I also have experienced the throes of rulemaking. I would like to thank the panel for the opportunity to offer my comments and suggestions, and I would like to express my appreciation for the enormous effort involved in bringing this proposal to fruition. I'll start with the scope of the standard. We support MSHA's proposal to establish a uniform noise standard for coal, metal, and nonmetal mines. A uniform noise standard for the mining industry should facility understanding of and compliance with regulatory requirements. We believe that consistency between MSHA's noise standard and the hearing conservation amendment developed by OSHA is desirable for the same reasons. Because many mine sites are covered by both OSHA general industry and construction regulations. However, we understand the need for and support certain provisions where MSHA's proposed standard may be more protective than OSHA's current standard. In the definitions section, I'd like to address hearing conservation program, the definition of. We recommend that MSHA incorporate the definition of a hearing conservation program used by OSHA which includes the following components: noise exposure assessment and monitoring, engineering and administrative noise controls, audiometric testing, audiogram review and employee feedback and referral, issuing of personal hearing-protection devices with individual fitting and training of wearers, the supervision of consistent utilization, education and motivation of employees, and record keeping. The term "hearing conservation program" has been used in general industry since the 1970's to refer to the components required for compliance to 29 C.F.R. 1910.25, OSHA's general industry noise standard. To redefine the term only within the context of the proposed rule confuses the issue and may be counterproductive to MSHA's endeavors. To equate the term "hearing conservation program" with audiometric testing, as defined in MSHA's proposal is to imply that all that is needed to conserve hearing is to test hearing. Without a knowledge of the miner's noise exposure, application of engineering and administrative controls is needed, and the use of hearing protection devices, all that audiometric testing will accomplish is to document the development of miners' noise-induced hearing loss. MSHA's proposed redefinition of the term "hearing conservation program" to mean simply audiometric testing reinforces the myth that audiometric testing has value in and of itself. As part of a comprehensive hearing conservation program, however, audiometric testing is critical for monitoring the effectiveness of hearing conservation for individual miners and for mining companies' programs. Now, the definition of "hearing protector." The definition should be changed to read: "Any device or material capable of being worn on the head or in the ear canal that is sold solely or in part on the basis of its ability to reduce the level of sound entering the ear that has attenuation values measured according to Method B, Subject MSHA Standard 12.6 1977, "Methods for Measuring the Real Ear Attenuation of Hearing Protectors." Standard Threshold Shift, or "STS." Many mine sites are covered by both MSHA and OSHA regulations, and the individual miners may move between jobs regulated by each agency. For that reason, we appreciate the practicality of using the same hearing shift criterion by both agencies for purposes of recordability and with respect to baseline audiogram tracking and revision. However, research as well as reports from individuals with hearing loss reveals that a confirmed age-corrected STS is not a sensitive indicator of early hearing damage, but rather reflects a very substantial hearing change. We specifically disagree with MSHA's statement on page 66439, that its proposed definition of STS "permits the early identification of individuals at risk so that corrective actions can be taken." An "age-correction STS" as defined by OSHA and proposed by MSHA represents a significant amount of cumulative hearing change from baseline that may affect communication competence. The Coalition has already testified to OSHA about the need for employers to prevent STS by reacting to early shifts in hearing with employee followup actions, including counseling, refitting of hearing protection devices, and retraining in the correct use of these devices. The next section, "Limitations on Noise Exposure," I'd like to address the PEL. In the preamble of the proposed rule, MSHA acknowledges that a permissible exposure level of 90 dBA does not protect at least 15 percent of the mining population who will develop material impairment of hearing if exposed to it in a working lifetime of 85 to 90 dBA. MSHA's arguments for not requiring a PEL lower than 90 dBA are not convincing. The preamble states that an 85 dBA PEL would be more expensive, and about two-thirds of the metal and nonmetal mine operators and three-fourths of the coal mine operators would need to use engineering and administrative controls to reduce noise levels to the PEL. The implementation is that it would be too much trouble. This is not a convincing argument, considering that the intent of the proposed rule is to preserve the hearing health of miners. We recommend that MSHA consider adopting a PEL of 85 dBA and investigate the effect of allowing a longer phase-in period for this change to take place, for example, over a 10-year period. MSHA's consideration of the use of an alternative phase-in period would allow the industry ample time to investigate new and viable engineering control technology that could reduce miners' noise exposure and remove miners from the noise area. Next, the exchange rate. MSHA admits in the preamble that the 3 dB exchange rate is more protected than the current 5 dB exchange rate and that the consensus of scientific opinion supports it. The Agency provides several sound arguments for changing to the 3 dB exchange rate. OSHA's rationale for not promulgating it, or I should say, proposing it, however, is that it may not be feasible. OSHA states that engineering and administrative controls would need to be used much more frequently and that the percentage of miners covered by the proposed rule would double. MSHA also states that the amount of time miners could be exposed to higher, in other words, more hazard sound levels, would be reduced. Once again, this is not a convincing argument for exposing miners to hazard noise levels. Continuing to use the 5 dB exchange rate solely for reasons of feasibility gives this method a false appearance of accuracy. The science is often forgotten once the practice has been established. In the experience of many Coalition members providing hearing conservation programs, a very high percentage of workers in production industries is already included in hearing conservation programs. Therefore, it is unlikely that a change to the 3 dB exchange rate would cause a percentage of miners covered by the proposed rule actually to double. We recommend that MSHA consider adopting the 3 dB exchange rate and investigate the effect of allowing a longer phase-in period for this change to be implemented, for example, over a two-year period. Next, the ceiling level. The concept of a 115 dBA limit was put forward in the 1969 "Walsh-Healey" noise standard, which became an OSHA standard in 1971. In the preamble to the hearing conservation amendment, OSHA reiterated the 115 dBA limit. Table G-16A of the rule, OSHA's rule, included sound levels up to 130 dBA printed in italics to signify that these levels are to be included in the assessment of worker noise exposure, even though the 115 dBA limit remained. The concept of the 115 dBA ceiling level is rooted in that aspect of the OSHA regulation that considers only noise signals that are continuous or varying rather than impulsive. MSHA's intent for the 115 dBA ceiling level is unclear. Therefore, we would like to pose the following questions in an attempt to help the Agency better define its intent. One, does MSHA intend for the 115 dBA ceiling to be an absolute limit? If so, what is to happen when this level is exceeded? Two, if any exposure to levels above 115 dBA occurs, is the employee to be included in the hearing conservation program regardless of TWA? Three, does MSHA really mean any exposure above 115 dBA is considered a violation regardless of duration? Does this include impulse noise? There are many possible reasons for false indications in modern dosimeters. In a mining environment there is the potential for the microphone to be bumped against many surfaces, which will result in a displayed peak succeeding 115 dB, yet no acoustic energy will have reached the ear. Possible solutions to clarify the intent of the rule include raising the limit to 130 dBA for short-duration sounds. Next, operator exposure evaluation. Over the years, MSHA has performed extensive research and displayed considerable expertise in the area of noise-exposure monitoring, especially in the subject of microphone placement. Therefore, it is surprising that the Agency is not provided guidelines for noise-exposure monitoring instrumentation of calibration. Proper identification of all workers who should be included in the noise-exposure monitoring and adequate assessments of their noise assessments are critical to the success of the hearing loss prevention program. The use of engineering controls and hearing protectors could be overlooked if noise measurements are not made or are made poorly. In addition, MSHA's estimated benefits of the program depend on proper assessment of miners' noise exposures. We recommend that MSHA provide more detailed recommendations regarding noise-exposure measurements. We refer MSHA to the procedures described in ANSI S-1219-1996, "Measurement of Occupational Noise Exposure," and recommend that this standard be referenced in a nonmandatory appendix to OSHA's final rule. Employee Notification. This is the only section in the proposal in which MSHA details requirements for maintenance of records of an employee's noise exposure. All that MSHA is proposing is that a record of exposure notification be kept for the duration of the miner's exposure above the action level and for at least six months thereafter. We recommend that noise-exposure measurements be treated like medical records and retained accordingly. They are critical to the assessment of causality of hearing loss. In addition, data spanning a number of years of surveys can better document employee exposures and can provide a more reliable statistical estimate. We recommend that noise-exposure records be established and maintained with audiograms for 40 years to assist employers and MSHA in evaluating the effectiveness of HCPs. Now, with regard to feasibility, MSHA's focus on engineering controls is an improvement for the coal-mining industry. However, the fact that the coal-mining industry has been allowed to lag behind the rest of the mining industries for so long and the manufacturing industries as well does not justify a standard that is inadequately protective. In addition, trading off the noise-monitoring requirements in order to justify engineering controls is inadvisable. One critical component of any health standard should not have to be traded off to justify the adoption of another. MSHA's definition of feasibility is quite lenient. Individual mine operators would be required to use only those engineering and administrative controls that are technologically and economically feasible for them. As with OSHA, the burden would be on MSHA to prove that the controls would be feasible in case of a contest. The statute requires the Agency to make a prediction based on the best available evidence about the ability of an industry to comply "within an allotted time period." MSHA either has not evaluated or has not provided information about the industry's ability to comply over specific time periods other than the proposed effective date. Warning Signs. MSHA should reconsider its position on warning signs. We recommend that the following language be included in the final rule. Where appropriate, warning signs should be posted in locations where sound levels routinely exceed the sound level corresponding to 100 percent noise dose within an eight-hour period. Now, Section 62.125, "Hearing Protectors." MSHA is to be commended for recognizing the inadequacy of currently labeled hearing protector attenuation data for purposes of predicting performance of hearing protection devices -- I'll call them "HPDs" -- in the field. However, MSHA's approach of disregarding all predictors of hearing protector performance is not the best solution either. In the proposal, MSHA requested comments on a scientifically based yet practical method for determining hearing protector effectiveness under mining conditions. Although a standardized field method is not available at this time, there is a new, laboratory-based method described in ANSI S-12.6-1997. It's called "Methods for Measuring the Real Ear Attenuation of Hearing Protectors." This method was unavailable eight years ago, when MSHA first requested comments on its advanced notice of proposed rulemaking. The new ANSI standard provides an estimate of field performance on hearing protector attenuation based on subject-fit testing in the laboratory. The subjects are persons who are audiometrically proficient but naive with respect to the use of hearing protection. The development of this procedure and the justification for its use are discussed by Royster and colleagues, 1996, in a paper that was heavily cited by MSHA. The correspondence between laboratory subject-fit data and field performance has been demonstrated by Berger and Franks, 1996. We recommend that MSHA include in the final regulation requirements for testing according to ANSI S-12.6, 1997. The current EPA regulations, which have not been updated since 1979, due to the defunding of the Agency's noise program, do not even recognize the 1984 ANSI standard on hearing protector attenuation testing, let alone the new 1997 ANSI standard. If MSHA includes in its regulation requirements for testing according to ANSI S-12.6, 1997, it would, one, require mine operators specifically to request such data from hearing protector manufacturers; and, two, be an impetus for EPA to update its outmoded labeling regulation. We believe it would be appropriate to phase in this requirement over a two-year time period, in other words, one year beyond the effective date specified. In the interim, it would be acceptable to use existing label values reduced by 50 percent, as is OSHA's policy. MSHA should include language as a new paragraph (b) in Section 62.125, "Hearing Protectors," to read as follows: "When TWAs exceed 90 dBA, or when persons experienced in STS hearing protection devices shall be assessed for adequate by using attenuation data derived from Method B of ANSI S.12.6-1977. The actual computations can be made using the noise-reduction rating, subject-fit method, as recommended by a task force of the National Hearing Conservation Association and related professional organizations. The NRR, "noise reduction rating," SF, "subject fit" is the number that is subtracted from the sound level in dBA in the employee's environment. Next, I'd like to address hearing protector selection. Selection from at least one ear muff and one ear plug, although it does meet the current OSHA requirements, is insufficient and does not promote MSHA's goals of protecting hearing. This is especially true of ear plugs because of two factors: (a), the wide variety of styles influence the manner in which the plugs fit into and seal into the ear canal; and (b), the difficulty off inserting them properly. Another consideration is that for those few situations, in other words, TWAs above 105 dB, in which MSHA requires the use of a muff and a plug, there would be no choice for the miner. In other words, the miner would have to wear the single choice of ear plug that was offered, combined with a single choice of ear muff. A preferable requirement would be to choose from at least four different models of hearing protectors, including at least two types of ear plugs and one type of ear muff. Next, hearing protector use at low levels. OSHA has determined that sounds above 80 dBA may be harmful to some, but such sounds should be integrated into the overall exposure estimate. Although such conclusions are justifiable, the requirement that goes with TWAs of 90 dBA and above cannot remove them as long as they are exposed to sound levels at or above 80 dBA is inappropriate and counterproductive for the following reasons. One, at sound levels below 85 dBA, HPDs will degrade the ability to hear and discriminate sounds, regardless of the hearing ability of the wearer. Warning sounds will be more difficult to detect, and it will be more difficult to communicate. For listeners who are hearing impaired, the situation will be even worse. Thus, not only is a safety risk incurred with little gained in overall protection provided, but the practice will be countermotivational, making it more difficult to encourage and enforce the use of HPDs when needed and appropriate. Secondly, the logic is flawed. A miner exposed for eight hours at 84 dBA would not have to wear hearing protection, and even a miner exposed for eight hours at 89 dBA is not required to wear HPDs, yet a miner exposed to 91 dBA for seven hours would have to wear HPDs for any exposure to sound levels even as low as 80 dBA in that same day. How does the supervisor distinguish between the employee exposed to noise levels of 80 to 84, who must wear hearing protection because he or she has other exposures that raise the TWA rate above 90 and the employee exposed to noise levels of 80 to 84 dBA who does not need to wear HPDs? This becomes an impossible enforcement scenario. Emphasis should be placed on proper and consistent use of HPDs and excessive noise, which means noise levels greater than or equal to 85 dBA and particularly above 90. Next, audiometric testing programs. First, tester qualifications. We recommend that all personnel who perform audiometric tests or supervisor the performance of such tests be appropriately trained and qualified. Technicians should be CAOHC certified and positions should possess experience and expertise in hearing and hearing loss. The Annual Audiogram. The annual audiogram should be obtained during the work shift whenever possible. Comparing the annual audiogram done under these circumstances is the most effective way to detect temporary threshold shift and intervene before the shift becomes permanent. It is important to remember that the purpose of the HCP is to prevent hearing loss, not to document it after it becomes permanent. This paragraph should be amended to include: "The annual audiogram may be obtained at any time during the work shift." And I would like to add in the preamble: "Mine operators should be encouraged to perform the audiogram well into their work shift or as far into their work shift as possible." Audiometric Test Procedures. Use of the term "scientifically validated procedures." The use of the term "scientifically validated procedures" is too vague. It will probably result in confusion and contention and possibly litigation. MSHA needs to clarify this term. If employers are not given specific requirements for the conduct of audiometric tests, the results are likely to be meaningless. MSHA should require audiometric tests to be conducted in accordance with the following ANSI standards or the most current version at the time of promulgation of the regulation, and you all have those in front of you. I won't read the whole thing, but ANSI S-3.6 and ANSI S-3.1 has to do with the criteria for permissible ambient noise during audiometric testing, and we recommend that if you do adopt that standard, that a relaxation of 5 dB permitted at the 500 hertz frequency, and also ANSI S-3.21. You should note that the contents of these standards include references to acoustical calibrators and sound level meters for the use of calibrating the audiometric equipment. Audiometric Test Record. The audiometric test record for each miner tested, Section 62.150, should be consistent with the record-keeping requirements outlined by OSHA but should also include the model and serial number of the audiometer used for testing; and, once again, it is important that the employer maintain accurate records of the measurements of the background-sound-pressure levels in the audiometric test rooms. Record Retention. Because of the importance of accurate records, both for employers and employees, we recommend that noise exposure assessment and audiometric records be maintained for at least the duration of employment plus 30 years. And you may remember earlier we recommended noise exposure assessment records be maintained for 40 years. This will assist MSHA in evaluating the effectiveness of its regulatory requirements. Evaluation of the Audiogram; Determination of Audiogram Validity. Because of the importance of proper supervision and training of technicians, we recommend that a technician be allowed to determine the validity of an audiogram only through the use of predetermined criteria developed by an audiologist or a physician with expertise in hearing and hearing loss. This also holds true for the determination of an STS or a reportable hearing loss. Next, followup corrective measures when STS is detected, in addition to the refitting and retraining requirements in paragraph (a) and the reselection of an HPD in paragraph (b), a new paragraph (c) should be added, indicating that should the fitting and condition of the HPD currently in use be found to be adequate, the miner should be encouraged to select an HPD with greater attenuation. We also suggest adding the following wording to paragraph (a): "Retrain the miner, including the instruction required by Section 62.130 and" -- this is the new wording -- "check the condition of the hearing protector and replace if necessary." Finally, we would like to suggest a new section on hearing conservation program evaluation. MSHA has failed to define a methodology for detecting problems in the HCP that could prevent significant hearing loss before it develops. If MSHA is serious about hearing conservation, the Agency should define a proactive procedure for detecting problems. MSHA noted in its preamble to the proposed rule that it would be difficult for a small mine operator to implement the audiometric data base analysis procedure specified in ANSI S-12.13, which is called "Evaluating the Effectiveness of Hearing Conservation Programs." However, the operator of a small mine could, in fact, implement one of the simple procedures described in ANSI S-12.13 by hand without the need of a computer analysis in a matter of hours. Also, there are other steps that employers may use in taking an inventory of their HCPs. We recommend that the following be added to the proposed rule: "At least annually mine operators shall conduct an audit of their hearing conservation programs. The evaluation shall include progress in noise reduction by engineering means, as well as an assessment of audiometric test results." In addition, MSHA should include language such as the following in a nonmandatory appendix. It is possible for mine operators to comply with various elements of the hearing conservation program and yet miners may still lose their hearing. For this reason, MSHA is requiring mine operators to evaluate the effectiveness of their hearing conservation programs at least annually. The evaluation must include any progress in engineering noise control and an assessment of the audiometric test results. MSHA has not specified a method by which mine operators should carry out these evaluations. To date, there are no final standards on hearing conservation program evaluation, although there was a draft ANSI Standard S-12.13. MSHA has chosen not to make compliance with the standard mandatory because the standard recommends a noise-exposed population of at least 30, and it is most effective within at least five to six years of audiometric data. Mine operators whose programs meet these criteria would be well advised to use the methods outlined in ANSI S-12.13. Mine operators or their hearing conservation program supervisors should also take a practical inventory of the program's various elements. The following are questions that mine operators or hearing conservation program supervisors should pose when reviewing the implementation and outcomes of the HCP. Is the program complying with the standard in every respect? Is progress being made on the noise-control program? Are miners accepting their hearing protection devices and wearing them effectively? Are there impediments to wearing hearing protectors? Are supervisors and foremen involved in the program? Based on audiometric test results, how many STSs are there in a year? What percentage of the program does this represent? Are miners who have STSs being counseled, and do they receive appropriate followup? That's the end of my testimony, and I would be glad to answer any questions that I can. MR. CUSTER: Thank you, Dr. Suter. MS. SUTER: Now, is there time for me to ask you some questions? MR. CUSTER: Yes. MR. SUTER: Okay. First, I'd like to know the reason for rejecting the Royster and the NIOSH definition of STS. My understanding is that they are both more protective and more efficient than the current OSHA STS and the STS that you have proposed. MR. CUSTER: We would like for you to go ahead and continue to pose the questions, and these will be addressed at a later time, along with the -- after the post-hearing comments have been received -- MS. SUTER: Okay. MR. CUSTER: -- for the sake of abbreviating our time here, if you would prefer to do it that way, or you may submit them in writing if you wish. MS. SUTER: Either way. Which would you prefer? MR. CUSTER: We would like you to make them a part of the record today, if you wouldn't mind. MS. SUTER: Okay. MR. CUSTER: Thank you. MS. SUTER: Another question is I would like to know what is the technical support for selecting 25 dB as the reportable shift in hearing level. A third question. Once again, the term "scientifically valid," as applied to the noise measurements that you expect mine operators to use. So my question is, the reason for the complete lack of noise-measurement requirements in the standard, and, specifically, I have a problem with your statement in the preamble, "Mine operators are expected to utilize survey methods and instrumentation which are scientifically valid and based on sound, industrial hygiene practice." And I guess I'm wondering how you're going to define "sound, industrial hygiene practice" and what happens if mine operators don't use what you consider sound, industrial hygiene practice. I'm reminded of a section that was in the OSHA noise standard for many, many years requiring employers to use continuing effective hearing conservation programs, and this was debated back and forth for years and years as to what that meant, and the vast majority of employers didn't implement hearing conservation programs. And even with the hearing conservation programs spelled out in such detail as OSHA does now, a very, very frequent citation is lack of hearing conservation programs, and my feeling is that probably it has to do with the fact that noise measurement procedures are not very well spelled out in the OSHA standard either. Another question is, who decides what scientifically valid data procedures are with regard to audiometric testing, and what aspects of the program are subject to this policy, and whether or not this is enforceable and how MSHA proposes to enforce such procedures, even if MSHA does define them? I noticed in the preamble that there was language about not wanting to stifle technology and impede improvements in methodology. Well, my question is, how does that relate to something like minimum requirements for background levels in audiometer rooms? And, finally, on what grounds, what studies has MSHA determined that lowering the PEL or selecting a 3 dB exchange rate would be or may be infeasible. Thank you. MR. CUSTER: Thank you, Doctor. Kevin R. Burns. MR. BURNS: Okay. I'm Kevin Burns, Director of Safety and Health for the National Stone Association. NSA is pleased to be here today and to present our comments. These comments will be presented on behalf of the 630 member companies of NSA. NSA advocates that members maintain a strong commitment to safety and health in the work place, and we are committed to working with MSHA cooperatively to ensure that the regulations governing the aggregates in the industry are based on sound, scientific principles. With me today are Kelly Bailey. He is manager of occupational health for Vulcan Materials Company and the chairman of NSA's Safety and Health Committee. Also with me is Dr. Curtis Smith, an audiologist in private practice in Auburn, Alabama; and David Hudson, an electrician with Vulcan's Graham Quarry in Virginia. Once again, NSA appreciates this opportunity to participate in this important rulemaking, and I'd like to turn it over to Kelly Bailey at this time. MR. BAILEY: Good afternoon. I know it's lunch time. You don't have to stay here; they do. It's a pleasure for me to be here. I'm a certified industrial hygienist. I've worked in the industrial hygiene field for over 23 years. I will try to be brief as possible, but I want to point out all the little devils and all the little details and ask you to exercise all of them that you can. So it will take a little time but not as much as is allotted. Starting with our definitions, the definition of "medical pathology," we feel is, as a condition affecting the ear, is very broad, and it needs to be better defined to pertain to physical abnormalities or conditions such as ear infection, perforated ear drum, or what have you; but "medical pathology," we feel needs to be clarified. Hearing Conservation Program. NSA recommends that MSHA include the same basic elements as OSHA in its hearing conservation program or definition of one. This consistency will facilitate the use of existing employee-training programs for operators that have OSHA facilities and MSHA facilities so we don't confuse our troops. Qualified Technician. NSA recommends that MSHA delete the following from the definition of a "qualified technician," that is, "or by another recognized organization offering equivalent certification." It is unclear to us what "recognized organization" means, and being ambiguous could lead to poor quality, and the enemy of quality is variation. So we feel that we should stay with something that we know. Reportable Hearing Loss. This definition gives us great concern. The definition basically automatically assigns the cause of a loss to the employer's work site without regard to the existing elements of a good hearing conservation program, such as exposure monitoring, training on the noise hazards, hearing protection availability and enforcement of use, or the installation of noise controls. If an employer has in place these essential elements of a good, effective hearing conservation program, it is very unlikely that any hearing loss detected in an audiogram would be due to work place exposures, and this is certainly true of losses in excess of an average of 25 dBA and the frequencies of 500 through 3,000 hertz. The automatic requirement to report losses will result in the improper association of nonwork-related noise exposure and hearing loss to the work environment. This reporting requirement will then inflate the hearing loss incidents in the mining industry unjustly. Hearing loss is unlike silicosis, in that considerable hearing loss can be associated with nonoccupational noise exposures and known ototoxic antibiotics, such as gentamicin and neomycin and others. Furthermore, this definition disregards the protective measures adopted by the employer. If the above elements of a good hearing conservation program are not in evidence at the work site and there is a confirmed hearing loss of 25 dBA average or more in the 500 to 300 hertz range in both ears, then that loss should be reported. Additionally, if the minor has experienced acoustic trauma at the work place affecting one or both ears, that loss should also be reported. That's how we would suggest that you fix reportable hearing loss. Supplemental Baseline Audiogram. We feel that using the same terms as OSHA would be advisable and facilitate training, so a revised baseline is, I think, what OSHA uses. "Feasible controls," which is referred to in the standard, needs to be defined. The judgment of whether all feasible controls have been applied in a particular situation needs to account for the prior controls installed by the employer related to the situation under review. MSHA has used a 3 dBA reduction as a guideline for determining a significant improvement of noise overexposure and if the control is feasible. MSHA must realize that it is much easier to obtain a 3 DBA reduction if nothing has been done in the past by the employer to reduce the exposures than it is to obtain an additional 3 dBA reduction after already having installed a series of controls. The determination of feasibility should take into account the history of the overexposure control efforts made by the employer for the situation. So we recommend a definition be added to the standard. Section 62.120, "Limitations of Noise Exposure," under dose determination, we believe it is unreasonable to require that the entire shift be sampled to assess the noise exposure of an employee. Typically, the shift begins once the employee clocks in, at which time he or she may go to change into their work clothes, and putting a noise dosimeter on is not a high priority. Many times it's not practical to monitor an employee's entire work shift due to the length of the shift. It is recommended that sampling should encompass at least two-thirds of the shift time to be representative of the employee's noise exposure. The National Stone Association agrees that the noise dose should be integrated over 80-to-130 dBA range on slow response. MSHA should identify the minimal specifications of noise-measuring instruments that employers should use. This will assist in maintaining noise-measurement consistency and quality within the mining industry. NSA, on the PEL exchange rate, the NSA agrees with the PEL and exchange rate proposed by MSHA. These values are consistent with OSHA, and NSA believes that the comprehensiveness of the MSHA proposal is such that the objective or reducing hearing impairment in miners will be realized. Under the action level, providing training on noise hazards "at the time exposure exceeds the action level" is not practical. Training should be provided to miners upon being hired, with additional training on an annual basis. It should be recognized that there will be occasions when additional noise training will occur, such as the time when the audiogram is given, at the time hearing testing results are provided to the employee, at the time the employee is being sampled for noise, and in the course of routine safety-and-health meetings. Regarding the action level, under (b)(2), it is unclear what MSHA means in this section. As written, the section states that a miner must wear hearing protection constantly if the miner has an STS or if the baseline audiogram cannot be administered within six months. A more practical requirement would be that the miner follow the work-site rules for hearing protection use. This section of the rule also requires the employer to ensure the use of hearing protection by miners. This is an unreasonable requirement and totally disenfranchises the miner from the employer's hearing conservation program. The employee should have the duty to provide the appropriate hearing protection devices, teach the miners how to use them, tell them about their limitations, and enforce the use of hearing protection in the designated high-noise areas. It was recommended that the term "ensure" be changed to "enforce." The miner should have some responsibility for using what is made available. Permissible Exposure Level, (c)(1). The requirement to post written administrative-control procedures on the mine bulletin board and to automatically provide copies to the employees is not practical in many mine sites. In a single mine there could be numerous administrative procedures, control procedures in place affecting many different employees, and having all these procedures attached to the bulletin board will lead to confusion and possible misinterpretation, following the wrong procedures, and so forth. A much more workable approach would be that new miners would be instructed on any administrative, engineering, and/or hearing protection requirements in their work areas, and at these work sites specific requirements should be covered annually for all affected workers and a routine safety meeting when these requirements change. Records of the safety meeting would be maintained for a year, and employees wishing a copy of the procedures will be provided one, since they will be responsible for following those procedures. Section (c), "Permissible Exposure Level," (ii) and (iii). The employer cannot enforce or force an employee to take a hearing test, or for that matter, to wear hearing protection. Therefore, requiring an operator to ensure that a test is taken is not really feasible. You can't take an employee, dragging and screaming, into an audiometric booth. If they don't want to take the test, they don't have to take the test. So we can't ensure that they will. Ceiling Level. At 115 dBA, the allowable exposure time is 15 minutes at 100 percent dose with a 5 dBA exchange rate and an eight-hour work day, as per the Table 6.2-1, reference duration in the standard. Not allowing any exposure to 115 dBA, either protected or unprotected, is not realistic in the mining environment where impact noise can be generated by certain power tools and welding machines, such as plasma-arc welding. It just can't be done. MSHA should retain its current standard language regarding impact noise and follow the OSHA rule with respect to ceiling. Operator Exposure Evaluation. The employer should be able to apply commonly accepted industrial hygiene work practices by sampling representative exposures from various jobs at a work site rather than sampling each and every individual. NSA agrees with MSHA's performance-standard approach to this provision. MSHA, however, should again specify minimal acceptable operating parameters for noise-measuring instruments. Employee Notification. Fifteen days for notification of exposure finding is inadequate, especially where the exposure exceeds the permissible exposure level or the ceiling level. It takes more time to resolve and plan for corrective action in many exposure circumstances. In many cases, other personnel not located at the site must be involved in the corrective action decisions. The 30-day period should allow for all involved personnel the opportunity to participate in the corrective action decisions. Good industrial hygiene practice dictates that the requirement for hearing protection where the exposures exceed the specified limits should begin once the overexposure is known. So we're not precluding the use of hearing protection until 30 days; we're saying use that as soon as you know, but other controls in place need to be defined, and other people need to be involved. Automatically providing written exposure results and corrective action plans to miners is extremely burdensome and unnecessary paper work and could delay the process of corrective action. Relaying the exposure results and engineering and/or administrative actions to be taken within 30 days of the noise survey should be totally adequate to accomplish notification, for example, in a safety-and-health meeting. The miners should be able to take notes and request the results during the meeting. Regarding hearing protectors, Section 62.125, this section appears to be stating that in some cases miners must wear hearing protection at 80 dBA, since the proposal is that noise dose be integrated from 80 to 130 dBA. If this is what MSHA means, then the provision would essentially require hearing protection at all times on the job. There are not many places that are less than 80 in a quarry. (Continued on next page.) // // // MR. BAILEY: The NSA believes such a requirement is extreme. Providing hearing protection when TWAs exceed eighty-five dBA is more reasonable and still protective. Ensuring hearing protection is properly fitted and maintained, part C. The NSA cannot ensure that a miner will always put his hearing protection on properly. The NSA recommends that this provision be changed to reflect that the operator be sure that the miner, the miners are trained in how to obtain a proper fit and how to care for their protectors. Section 62.130 on train -- or, B -- on training and certification. NSA believes that retraining of a miner following an STS determination is impractical. Many STS are temporary due to colds, headaches, temporary threshold shifts and what have you. The NSA believes that the annual training of all miners following the receipt of the audiometric testing results should be adequate, that the STS concept is included in the documented training program. The initial training on noise for new miners is also appropriate and training records should be kept for at least one year to demonstrate compliance. Many mine operators do not keep such training records at each mine site and MSHA should allow flexibility in record keeping practices so computerization and centralized filing systems can be utilized. Audiometric testing program, qualifications for conducting an audiogram. It is important that the quality be mandated since MSHA is proposing that the audiometric records be transferred to successor operators and that the baseline audiograms collected from previous owner's programs be used for future comparisons, which we also have a problem with and we'll talk about a little while later. But the definition of a qualified technician should be set. Baseline audiogram, NSA disagrees with MSHA on the prohibition of using effective hearing protection devices as a means to satisfy the quiet period for a baseline audiogram. Many quarries are quite small and within driving distance to one another. In these circumstances, a mobile testing van, which is usually used in the quarry environment, can easily test the workers in three or four quarries in a single day. This means that workers in some quarries will be tested after their shift has begun. Not allowing the use of the hearing protection to satisfy the quiet period will dramatically increase the time and cost to test workers since the van can only test prior to the work shift at each facility. MSHA should follow OSHA on this provision since the mining testers will most likely utilize mobile detecting vans much more frequently than the larger OSHA facilities. Baseline audiogram, B4. It is recommended that this section be deleted. The adequacy of existing audiograms for laid off workers need to be determined on a case by case basis. The workers that leave an operator's work site over the winter shut down period and works at the local airport, for example, or a rock music band can lose considerable hearing in a matter of days if unprotected. It is unfair to assign this loss to the employer's work site if there is an effective hearing conservation program in place. Annual audiogram, NSA agrees that operators should only be required to offer the minor an audiogram versus the requirement in Section 62.120 to ensure that the miner take the test. There's some inconsistency in the requirement there. Section 62.150, audiometric testing procedures. MSHA should adopt the testing criteria used by OSHA on scientifically valid procedures. This would ensure that audiometric testing is performed in a standardized manner throughout the mining industry. Audiometric test records. Certifications that the audiometric testing procedure be performed in a scientifically valid manner in each miner's record is totally redundant and excessive paperwork. A single qualifications file on the testing provider and the procedure to be used by the testing firm should be adequate to satisfy this requirement. The requirement to have each miner's noise exposure record as part of the audiometric record is overly burdensome. Many operators have their exposure records in a centralized record keeping system or on a computer database. Exposure results will be communicated to effected miners in the proposed rules, training and notification provisions. Having to maintain a separate hard copy file is overly redundant record keeping. Utilizing a centralized record keeping system, many miners -- any miners' exposure result could be easily provided in a timely manner without requiring on-site files. Audiometric testing records are typically maintained in a central record location within a company. Requiring that a duplicate set of records be maintained on-site is impractical and redundant. Testing records can easily be provided upon request and MSHA should be consistent with OSHA's audiometric retention provision. Section 62.160, the evaluation of the audiogram. Recordable hearing loss and the assumption that all hearing loss occurs while at work is totally without justification and ignores the fact that many Americans experience hearing loss from off the job exposures. Receipt of audiometric testing results. That's part A4. MSHA specifies that an operator must have the audiometric testing results within thirty days of administering the test. The operator has no control of when the testing contractor provides the results other than through changing contractors, the next time around, which will probably be done. In many cases, when mobile van testing is used, a survey trip can take three to four weeks to complete before the van returns and the data are processed and evaluated. MSHA should not sacrifice quality for speed. The ninety day period is more practical when the van's services are used. MSHA should not cite operators on issues that they cannot reasonably control. Invalid audiograms and retesting. MSHA does not define what constitutes an invalid audiogram and the operator is required to act on something which is ambiguous and open to a variety of interpretations. MSHA appreciates the need to obtain -- or NSA appreciates the need to obtain audiograms performed using standardized procedures by qualified technicians. One of the primary reasons for utilizing a mobile testing unit service is that these critical quality concerns cannot be met in many areas where quarries are located. It is totally impractical and extremely expensive for MSHA to require the operator to reschedule a testing van to retest one or two miners who happened to have had a cold or an earache on the day the quarry was tested, two or three months prior. Most van services travel hundreds of miles to complete a survey. MSHA should accept that there will be some miners who will not have a valid test in a given year. It's also highly probable that miners may miss the testing van to obtain a test due to vacation, sickness, or other personal matters. As long as the operator makes the audiometric test reasonably available, the operator should not be cited if an employee misses a test. Section 62.170, follow up evaluation of the audiogram, invalid audiogram. Part A, suspected occupational-related reasons for an invalid audiogram. In most circumstances, an audiologist or a physician will not have an opportunity to examine the employee to asses whether there is any medical pathology causing an invalid audiogram. It is even more unlikely that an audiogram can be associated with noise exposure or hearing protectors by simply looking at the audiogram results. So it is unclear to NSA how MSHA will enforce this section. Section 62.180, MSHA -- determination of work relatedness. Again, MSHA makes the assumption that all hearing detriments are work related unless negatives can be proven. The STS's can be the result of many non-noise factors that may not be known by the audiologist's examining audiogram. NSA believes that STS-related training should be covered as recommended earlier in Section 62-130. Section 62.190, notification of results and reporting requirements, part A. MSHA should provide thirty days upon receipt of the results by the on-site manager or the operator to notify the employee of hearing or testing results. This will allow the operator to coordinate with health and safety specialists in a company, or consultants, for conducting the required training set forth in the proposed standard. The reporting results -- NSA strongly disagrees with MSHA's presumption that all hearing loss is job-related and therefore must be reported under Part 50. If a miner has a non-occupational noise exposure that would cause hearing loss, how is an audiologist or physician to determine what contribution the employer's work site had to the adverse finding? Many physicians and audiologists are not proficient in industrial hygiene assessments and noise exposure and would not be able to make that determination. And MSHA says they must make for finding it to be not reportable. MSHA also must define the term "aggravated by occupational noise exposure". Does this refer to specific sound levels and exposure periods? Or to any particular dose? Access to records. NSA does not believe a fifteen day period is adequate for providing all records required under this proposal for miners and a thirty day period much more practical. Automatically providing records upon termination. NSA disagrees with the requirement to automatically provide each miner with a copy of all records covered under the proposal upon termination of employment. This is an extreme requirement since many mines have high turnover rates and would require a considerable increase of unnecessary paperwork and logistics and it's questionable whether miners would even read them, or be interested in the documents. During the course of a miner's employment, as required by the proposed rule, the operator will have already provided the information. The miner should be required to provide a written request for the records and the operator should be allowed thirty days to satisfy it upon termination. Section 62.120, or 210. Transfer of records, Part B. Use of the original operator's audiogram for baselining. NSA believes that the operator should have the choice of whether to use the previous owner's audiogram, audiometric records for baseline comparisons. There are several reasons for this position. Regardless of how structured the testing regime is, there will be fluctuations in audiogram quality among operators. An operator should not be required to use tests that may be suspect of inferior quality. In addition, many of the audiometric testing results will be computerized using standardized forms within the company. It may not be possible or practical to computerize another company's records into an existing system. The valid baseline test for a new miner can be obtained within twelve months using a testing van as the proposal allows, and it should be valid for an experienced miner's baseline with the acquiring company. Just a few other comments, and I'm going to be done. Far less than ninety minutes, of course, my other two companions are a lot less long winded than I am. From reading the proposal, it is unclear how MSHA will issue citations under the rule. Will MSHA continue to use the one hundred and thirty-two percent dose operator value before issuing the citation? NSA strongly disagrees with MSHA's practice of issuing citations to operators who have installed all feasible engineering and/or administrative controls, and still must rely on hearing protection to reduce hearing exposures below the PEL. By issuing citations under these circumstances, MSHA penalizes the operator for doing what MSHA requests. Does MSHA believe that there are justifiable circumstances where hearing protection can be used to protect the miner? If the answer is yes, then no citations should be issued for doing the right thing. In weighing the adequacy of hearing protectors for a particular circumstance, the level of exposure and the attenuation of the hearing protection device should be considered. And that's -- that's my NSA comments. Long winded comments, but we had two others. But I'll be glad to answer any questions. MR. THAXTON: I have just a couple. MR. BAILEY: Shoot. MR. THAXTON: One is a question to clarify what you were saying. I'm not sure I heard what you were recommending. It was in the posting of administrative procedures, you were saying that it was too burdensome to post all those in the mine bulletin board. But you gave an alternative of training the miners in -- if I understood right -- providing copies? MR. BAILEY: Upon request. I -- I think that what the NSA is saying is that there are many, many circumstances where, in larger mines, that there's all kinds of administrative procedures that are used. And these could be -- these could be written, they may not be written, but they're covered because the administrative procedures require that you do this, and don't do that. And those should be -- those will be covered in a routine safety manual. And whether the miner writes his notes down, or it's written in a written procedures, that's going to be communicated if the operator expects it to happen. So instead of having a miner go through a bunch of procedures hanging on a bulletin board, trying to find the ones that came to him, it's much, much more effective and less open to misinterpretation and misinformation to communicate to the miners that are effected that on your work site, this is what's required. You've got signs up there that say here's your protection, and you're only working there four hours, or whatever the particular administrative control is. So that's what we're recommending. MR. THAXTON: But a miner that would actually be in that area, if he so chooses, he could request a copy of that administrative procedure. MR. BAILEY: If there's a copy of the administrative procedure. Some of that administrative procedure may be a sign out in the plant and the miner, in communicating that procedure to the miner, he'd be more than welcome to take notes of that. If there is a written procedure, I don't believe that any of the members of the NSA would disagree with providing him with a copy since we want him to follow those procedures. MR. THAXTON: The second question I had was in relation to your ensuring that personal hearing protection was being used. My question to you is, as the miner operator, do you not have control over you work force in matters of production? And do you not expect your people to follow directions and do what you instruct them to do? MR. BAILEY: Absolutely. And I will tell you right now that we're probably not one hundred percent successful in that. MR. THAXTON: But barring where -- MR. BAILEY: Well, we're at a pretty high percentage, because that's why we're so profitable. (Laughter.) MR. THAXTON: Realizing though that you're actually the one employing these people, who else is going to ensure that they're going to wear their hearing protection properly? IT's your facility. MR. BAILEY: I think the employee himself. We train him. We provide it. We show him how to use it. It's made available. He's told where to use it, when to use it, and how to use it, and how to take care of it. And other than walking around with him to ensure that he's wearing it properly is a pretty outlandish requirement. MR. THAXTON: The -- MR. BAILEY: I think if someone's -- I think the operator's responsibility is if he sees an employee, you know, flagrantly violating the rules of the work place, the rules, for no matter what reason, hard hat, earplugs, safety shoes, they ought to discipline them. But that, you know, is when you see them. It's not when you don't see them. MR. THAXTON: Thanks. MR. BAILEY: I'm going to turn this over to my colleague, Doctor? MS. PILATE: I have questions. MR. BAILEY: Oh, I'm sorry. I thought you guys wanted to go to lunch. MS. PILATE: You stated that you have 630 member companies. How many of them are small, having fewer than twenty employees? MR. BAILEY: Do you have a -- MR. BURNS: More than ninety-five percent of them meet the Small Business Administration's definition of five hundred or less. As far as the twenty or less, I cannot say -- MR. CUSTER: Could you please come to the microphone? MR. BAILEY: He takes care of all the dues paying and such. MR. BURNS: More than ninety-five percent of the companies meet the Small Business Administration's definition of five hundred or less. As far as the twenty or less, I can't say -- I don't have a number for that. But there are -- there are quite a few companies that are in that range, I just can't give you a percentage. MS. PILATE: Could you possibly present that information in your post-hearing comments? MR. BURNS: Yeah, we -- I'll make an attempt to get that information and as precisely as I can. MS. PILATE: Okay, I have two more questions. How many of the member companies now offer noise training? MR. BURNS: I'll have to supply that also. MS. PILATE: And one last question, how many of the member mines voluntarily offer audiometric testing? MR. BURNS: Same thing, I'll have to find that out. MR. CUSTER: Kevin. MR. BURNS: Yes? MR. CUSTER: Kevin, has NSA made comments in regard to the SBA definition of small mines? Do you recall that? MR. BURNS: In this rule making? MR. CUSTER: Or to MSHA's definition -- MR. BURNS: Not in this -- MR. CUSTER: -- of the SBA five hundred or -- MR. BURNS: Not in this rule making. MR. CUSTER: Okay. You're aware that we did ask for the industry or the mining community to make comments on those issues? You know, in the comments that you submit subsequent to this hearing, perhaps you would want to address that. MR. BURNS: Okay, we have not submitted comments to this rule making yet. MR. CUSTER: Right. MR. BURNS: This is our first commentary now. MR. CUSTER: Okay. MS. SYLVIE: Let me clarify something, if I could. Relative to the issue of regulatory flexibility and the brief amendments, we have asked for people to comment on the MSHA tradition or definition, or the SBA, as you correctly put it. The SBA definition of fewer than five hundred. So when you -- when he asked for the mining public's comments on that, so when you do submit your comments to us, you give an opinion as to what -- MR. BURNS: Yes, I will. MS. SYLVIE: Okay. MR. BURNS: As soon as I get the information from MSHA, I'll submit it to you. (Laughter.) MS. SYLVIE: That's all in the proposed rule. MR. BURNS: Yeah, I know. And I will get you the employment information. I will take care of that. DR. SMITH: Good afternoon. I am Dr. Curtis Smith. I here representing the National Stone Association. I'm a hearing impaired audiologist who wears bi-normal hearing aids, right this minute. I'm in private practice in Auburn, Alabama and the preponderance of my business is industrial audiology consulting, and I have over thirty-five years teaching and consulting. In fact, I was an MSHA consultant on the ANPRM of this proposed standard. I have consulted mining companies who operate over two hundred mines. I have conducted numerous noise surveys and analyzed thousands of audiograms of miners in this industry. As a professional audiologist, I have some serious concerns about the proposed rules that I would like to address at this time. Number one, recordable hearing loss. The proposed rule automatically assigns the cause of hearing loss to the employer's work place when there's been a change in the average hearing threshold levels of twenty-five dB of two thousand, three thousand, and 4,000 Hertz. Please note that the American Academy of Otolaryngology Head Neck Surgery, as well as the American Medical Association, used the pure tone thresholds at five hundred, one thousand, two thousand, and three thousand with a low fence of twenty-five dBA as a criteria for hearing impaired. It is inconceivable to me that using the same tests results from the miners' audiograms in the proposed rule could show a considerable hearing loss, but it would not show a hearing impairment using the AAOHNS or AMA criteria. In my judgement, this cannot be justified based on the current literature. A more meaningful criteria for mine-related hearing impairment should include (a), the change in hearing thresholds should be in both ears, (b) the hearing threshold level should be about the same in both ears, (c) the hearing loss should be sensory-neural in both ears, and this can be determined by tympanometry or tuning forks right on site. And (d) the employer should have a history of working in noise levels high enough to cause noise-related hearing loss equal to or greater than eighty-five dBA tone rated average for several years, without wearing hearing protection. The MSHA-proposed rules suggest that no hearing conservation programs -- no matter how rudimentary -- is in place in any mine site, which is certainly not the case. Now, I do realize that there are some cases, although they are rare, in which a person can have a hearing loss in one ear and it be mine-related, and some of those instances are impacted sound levels due to repeated insertion of insert earplugs. But to have that degree of hearing loss, at twenty-five dB change is unlikely. I bet I don't see that one time in a thousand workers. I see a lot of impacted sound levels. Every day that I examine ears -- and I sometimes examine as many as eighty ears a day -- that I don't see that much change is very rare. So that's not the biggest deal in -- it's unlikely to be. Another unilateral case that might occur as a result of a mine injury would be acoustic trauma, such as an explosion. And that is another instance. And the third instance that I can think of -- it's not likely now, but it used to be -- and that is truck drivers who drive with the left window down. There's sometimes about a ten dB difference in high frequencies, but not twenty-five. That's very rare. When you see that twenty-five, it's usually something else, like hunting. Number two, my comment on ceiling levels for exposure, briefly, since someone else already covered that, the proposed rules state that at no time should a miner be exposed to sound levels exceeding one hundred and fifteen dBA. After reviewing hundreds of noise dosimeter printouts of real world data, collected in many different work environments, I'm convinced there are literally scores of things that cause those instantaneous or compulsive noise levels that equal to or exceed one hundred and fifteen dBA like noise dosimeter microphone thumbs. And since this is a fact -- and it's well known to you now, several people have commented on it -- I recommend that we use the OSHA rule of a maximum of fifteen dB minute limit to the one hundred and fifteen dB. My third comment is on personal hearing protectors. And I hope I don't cover anything that's already been covered on this. One of the main problems with most hearing protector devices among some miners -- and we've heard it today -- is that they're concerned about not being able to hear warning signals, obviously, while they're wearing their hearing protection, like rooftop. As a result, many miners do not wear their hearing protection properly or at all, so they can hear. And they say it, they admit it, they tell us that. I'm not going to wear that, I can't hear. I'd rather have a hearing loss than be dead. So you might say that one of the main problems then that hearing protectors have is that they can't hear with them. There's a new physics-based technology developed by Dr. Meade Killion in Illinois, referred to as ER-20 earplugs. He refers to that ER-20 technology as musician's earplugs. Rock and roll musicians are wearing these by the scores now because they don't want to get a hearing loss, but they want to hear the music. And that's similar to what we're talking about with miners. We never dreamed it would be possible to protect people's hearing and let them hear at the same time. It is. These hearing protector devices, these ER-20's, and are now being manufactured. I do not represent any manufacturer. They are now being manufactured, however, by Cavott Labs and are now available inexpensively, where people can get these -- plants can buy these things, inexpensively now. And they will work. These hearing protectors protect hearing while allowing the wearer to hear speech as well as warning signals. The problem may be with determining the hearing protector effectiveness is that some of the measurement techniques may not do justice to this type of technology, but I believe like Dr. Suter recommended in this NCS.6 1977, may cover this. And the reason that it's really important to talk about this is that in 1996, in Mobile, Alabama, a worker was awarded $1.55 million for injuries sustained from what he called over-protection of hearing. It's a done deal. He's got the money in his pocket. I've just been contacted by a Birmingham attorney on a very similar case. So really, this -- the ball is starting to roll now. People are being over-protected in some environments. They claim they are. They can't hear warning signals. We never dreamed you could do both: protect hearing and hear at the same time. In certain levels of noise, I think we can now. We are going to have to do a lot of studies to ensure this is proper, this is true, but this is physics-based technology that does allow both. Thank goodness. One final comment on instrumentation. The proposed rule does not address instrumentation for hearing testing in miners. I believe that OSHA standards should be used regarding specifications for audiometers and the maximum allowable background noise for audiometric testing. Now, I recommend one thing different than the OSHA standard though, a little above that in terms of maximum background noise testing. Using an artificial ear, some of these companies now have artificial ears and they have a built in ocuban analyzer so that when you're doing your hearing testing on your employees, you can constantly monitor whether the background noise of any of the octave bands under test exceeds the recommended allowable limit. If it does, you can stop the test. So right now, since the technology is available and since a person does an audiogram right now and you asked him honestly, in a court of law, sir, can you tell me for a fact that the maximum background noise was not exceeded at anytime during this test? Well, if somebody said yes to that, I'd say, how do you know that? You don't know. But you can know now. There's new technology that will let you know. So I would really seriously consider adding that provision since it's available, it's inexpensive. I would do it. Thank you. MR. THAXTON: Dr. Smith? DR. SMITH: Yes, sir? MR. THAXTON: You made a couple of comments about the number of miners that you -- or people that you see, and especially the number of ears. I have two questions. One, how many people do you normally see that are actually miners? DR. SMITH: Well, I don't examine a lot of miners' ears. MR. THAXTON: Mmm hmm. And of those miners that you do examine, what type of mining are they involved in? What type of work? DR. SMITH: It's not -- what do you call it? Coal mining? MR. THAXTON: I'm sorry? DR. SMITH: Coal mining. C-O-A-L. MR. THAXTON: Coal mining? DR. SMITH: Yes, sir. MR. THAXTON: Thank you. DR. SMITH: Sure. MR. THAXTON: Any others? MR. CUSTER: Would you be willing to provide us with some additional information with regard to the court case involving a verdict on proof of protection? As a panel, we would be interested in reviewing that. DR. SMITH: Okay. MR. VOLOSKI: Is that the one with the loggers? DR. SMITH: That was a logger case down in -- MR. VOLOSKI: Yes, Alabama. DR. SMITH: Mobile, Alabama is where the case was heard and they're not going to appeal it because -- they were hoping they'd get an appeal and the company said let me pay off that $1.55 million right now because they were going to come back with $10 million and win. So I'm just saying, we've got to address that. MR. CUSTER: Thank you, Doctor. DR. SMITH: Yes, sir. MR. HUDSON: Good afternoon. My name is David Hudson and I'm an employee of the Graham, Virginia quarry of Vulcan Materials. I've worked in the rock crushing industry for almost twenty years. Currently, I'm a plant electrician at several quarries and sales yards, but I've had numerous years of experience as a laborer, crusher operator, and particularly, mobile equipment operator. I feel that I'm very qualified to testify here today as to the importance of having and wearing hearing protection and the effectiveness of hearing protectors. In my earlier days of working in a rock quarry, hearing protection was virtually unavailable. If it was available, I did not wear hearing protection, nor was I encouraged to wear it. The business of crushing rock can be very noisy and I recall going home from a full day's work with my ears ringing, suffering from headaches, and generally stress out. I remember one time shortly after starting in this business that my job required me to work near a vibrating screen for nearly the entire shift. For those who are not familiar with a vibrating screen, it's a piece of processing equipment that probably contributes most of the noise generated at a rock crushing plant. I can recall going home and lying in my bed and hearing the constant noise of the screen vibrating in my head. This is a feeling I do not wish to relive. Fortunately, my company started to understand the hazards of noise exposure and began to issue and encourage the use hearing protection. Now, if you're working in an area that has been identified as a high noise area, wearing of hearing protection is mandatory, it is not a choice. Although Vulcan Materials strives very hard to engineer out the noises that the employees are exposed to with current technology, it is impossible to eliminate the noise generated by the process of crushing rock. But because of the company's efforts and the use of hearing protection, I currently only have a limited high frequency hearing loss and I plan on keeping what I have left. Not only do I have good hearing, wearing hearing protection has other benefits. I don't feel as stressed out like I used to prior to wearing hearing protection. I've noticed, as well as other employees, when I do wear hearing protection, I can actually hear the internal workings of a machine that I normally would not hear without the hearing protection. Believe it or not, I can hear if a bearing is starting to go bad or if something's not running as smooth as it should be, and it's saved the company substantial amounts of money in preventing unexpected failures. Hearing protection also enable me to hear backup alarms and other warning devices. Thank you for giving me the time to tell you how it used to be in a rock quarry. I use hearing protection every day and I believe it is a very effective way to minimize the noise that enters your ears. MR. BURNS: That concludes our presentation and we appreciate the opportunity to appear here. I think I missed some of the questions, but what were the questions you wanted me to respond to? How many do audiometric testing, how many are in the small mine range -- MS. PILATE: How many small mines are members of the NSO. MR. BURNS: Okay. MS. PILATE: And how many of your members offer noise training. MR. BURNS: Noise training? MS. PILATE: Yes. MR. BURNS: Okay. Yeah, and really the best source of, you know, employment numbers is from MSHA and through -- and as far as operating companies, and that's where I'll have to go to get it. MS. SYLVIE: Yeah, the question I had asked had nothing to do with the employment numbers. MR. BURNS: Okay. MS. SYLVIE: In the regulatory flexibility section, we ask -- MR. BURNS: It just addresses the brief issue, yes, I -- MS. SYLVIE: -- and we ask that you brief the issue and we ask -- MR. BURNS: Okay. MS. SYLVIE: -- commenters to comment on the definition of a small mine -- MR. BURNS: Okay. MS. SYLVIE: -- whether the use of MSHA's traditional twenty numbers should be appropriate, or what it should be, the SBA definition of fewer than five hundred. We have gotten just a few comments on that, but we have gotten some comments. People did not miss that. Some people did not miss that, so there are some numbers that need to comment on that. MR. BURNS: Okay. We'll address that then. Thank you. MR. CUSTER: Thank you, Mr. Burns. The next speaker is Mr. Bruce Watzman. MR. WATZMAN: We need the overhead and the slides. (Pause.) MR. ING: Good afternoon. My name is Wes Ing. That last name's spelled I-N-G. I'll present some testimony and act as facilitator of this panel. I'll be speaking to you today as the Chairman of the National Mining Association's noise task force. I'm the Corporate Manager of health, safety, and loss control for Eckobay Mines. We operate four producing gold mines; three in the United States, two in Canada. Two of those mines are open pit. Two are underground. My testimony today and that of my colleagues reflect the collective views of the health and safety professionals of the NMA member companies. I wish to thank MSHA, the MSHA panel, for this opportunity to comment, and for the sake of time, our comments today will not cover all aspects of this proposal. We will be submitting extensive written comments during the post-hearing comment period. With me today are witnesses who will present expert testimony on specific aspects of the proposal, as well as provide comment on several specific requests for the comments contained within the preamble. I will introduce each of these individuals prior to their testimony so that you can identify their extensive experience and expertise with their testimony. The one thing I would like to do today is take a minute and thank the agency for the announced extension of time to the rule making record. This will help identify a meaningful record upon which scientific, economically, and technologically competent decisions can be rendered. But it's unfortunate that the Deputy Assistant Secretary of Labor and the Assistant Secretary of Labor couldn't be here with us this afternoon to hear the views of the industry. At this time, Mr. Chairman, I'd like to direct your attention to the question of risk or necessity. Bruce? Is there really a need for the rule making -- for this rule? And I want you to go through your -- when I go through these slides, I want you to keep that in mind. This is the employment record of the metal, non-metal, and coal industry for the last five years. For the period from 1992 to 1996, employment in the metal, non-metal sector averaged greater than 160,000 miners. Miner -- in the coal sector, employment rates went from an approximate low of 54,000 to of a high of about 118,000 in 1996. And it -- part of these -- all of these numbers I'll present today came from either the preamble of the proposed rule or from MSHA itself. You will see a slight different in the year-end numbers versus what was in the preamble, and that's due to the availability of year-end numbers, versus when the preamble was -- so, the industry has been busy hiring miners and increasing it's work force and contributing to the growth of the mining industry in the nation's economy. Bruce? During the same time, MSHA was busy. Illustrated in this slide are a number of -- oops, excuse me. Bruce, go to the noise citation. That's fine, that's fine. Leave it right there. During this time period, MSHA inspectors were busy collecting full shift noise samples from both coal, metal, and non-metal mines. And in the metal, non-metal sector, the number of inspector samples taken during 1992 was 14,622 and steadily increased to 18,510 full shift samples taken in 1996. And over the time period, averaged, on an average, of 15,000 samples a year. The coal sector averaged 31,682 samples during the same time period for an average 636 samples taken per year. By no means has the agency rested on it's laurels in sampling the work force for exposure to noise. Okay, Bruce. And on the same hand, MSHA was busy writing citations. Here, the noise citations written under Part 70, subpart F, and parts 56 and 57, 5050 A and B. As you can see plainly, over the years the number of citations have declined. Go ahead, Bruce. The next one. Moving on, using the number of citations issued and the number of inspector samples, the following trend seems to have appeared. In coal, the average ratio of samples to citations during the same period was 18.21 and in metal, non-metal -- put the next one up, Bruce -- the ratio is 220.56. In both sectors, the trend shows increases, an increase from year to year. So, what conclusions can you draw from this? First, the obvious. MSHA's having to sample more to write a citation. And second, and most importantly, workers are not being exposed to overexposures in the work place as MSHA believes. Remember, from previous overheads, MSHA has not relaxed the inspector samples in the work place. The trends indicate that inspector sampling has increased. On page 66353 of the preamble, current exposures appear to be gradually declining in the metal, non-metal industry where engineering or administrative controls are the primary means for protection against noise induced hearing loss. But the data indicate that all sectors of the mining industry continue to have significant overexposures. The bottom line is that workers are not being overexposed to noise and MSHA's having to look harder to find overexposures. Go to the last slide. Part 50, notifications. And if you look here, in this slide under Part 50, the operator is required to report to MSHA if he receives any notification of a hearing loss by a medical professional. First, I'd like to compliment the agency in attempting to standardize the reporting requirements for what defines a reportable illness. Within MSHA's records, operators have reported hearing losses of as little as .28 percent as awarded by worker's compensation boards. The Part 50 claims filed by operators over the last years, this slide can be very misleading. As we know, over the last five years, segments of the mining industry have closed properties due to ore body depletion, or downsized due to economic hardships, et cetera. And the mining industry is no different than any other industry. When mines are closed, employees are laid off, worker's compensations claims are made. Some real, some not. Several peaks in both the coal and metal, non-metal mines illustrate just this fact. During 1994, and 1995, and '96 -- there, there, and there -- a major copper operation downsized and modernized it's operation, creating 39, 22, and 38 of the Part 50 claims. In the coal sector, in 1992 and 1995, two coal mines closed in West Virginia, resulting in 106 and 88 Part 50 claims respectively. Whether the claims were true or not, we were unable to verify them. But they were reported to MSHA. Even so, the number of claims filed versus the total number of citations or number of samples taken is still dramatically low. Again, why is there a true need for this proposal? Okay. I'll be glad to take any questions before I introduce the next -- At this point, I'd like to introduce Dr. William Clark. Dr. Clark is the Director of Professional Services for the Central Institute for the Deaf, which is based in St. Louis, Missouri. He also serves as Chairman of the Department of Speech and Hearing at Washington University. Additionally, Dr. Clark serves as advisor to the National Academy of Sciences, National Research Council Committee on Hearing and Bio-Acoustics, and is a member of the ad hoc review commission, and as a member of the ad hoc review commission, the National Science Foundation, Division of Behavior and Neural Sciences. Dr. Clark serves in several professional societies, including the Association for Research in Ear, Nose, and Throat; Centurions of the Deaf Research Foundation; the National Hearing Conservation Association; and the American Speech Language Association. He has published extensively, and has, since receiving his Ph.D. in physiological acoustics from the University of Michigan, committed himself to the goal of elimination of hearing loss. I would like to ask that a copy of Dr. Clark's curriculum vitae be made part of the record. Dr. Clark. DR. CLARK: Thank you very much. Because I'm a college professor, I have to have visual aids here. I will not really read this document. I've got a written document that has been submitted to the record, but I'd like to use the overheads to make the points that I would like to make this afternoon. First of all, as has already been mentioned, my name is Bill Clark. I'm the Director of Professional Services at Central Institute for the Deaf. And in that role, I serve as the head of a school for profoundly hearing impaired children. About seventy children who are all profoundly deaf, and they are talk to speak and to read lips. It is an oral school for deaf children. And also, the Head of Central Institute for the Deaf's clinics, where we also see about 6,000 patients a year. And then at Washington University, I serve as the Department Chairman for the Department of Speech and Hearing. And in that capacity, I administer a graduate program that gives -- that grants Masters degrees in deaf education and audiology, and Masters and doctoral degrees in communications sciences. Next slide, please. I am appearing this afternoon as an individual, but on behalf of these organizations: the National Mining Association, the American Iron and Steel Institute, the American Portland Cement Alliance, the National Industrial Sand Association, and the Bituminous Coal Operators Association. I was asked by these individuals to come to this meeting to express my personal viewpoints. So this is really an individual viewpoint being expressed at the request of these agencies. Next one, please. MSHA has quoted extensively in the draft document. In it's document, MSHA has quoted extensively the draft document criteria for recommended standard occupational exposure to noise, which was produced by NIOSH, and MSHA also requested and received an analysis of the hearing of coal miners, which was completed by Dr. John Franks of NIOSH and which was provided to the record and exists in the standard. I was asked to review critically Dr. Franks' report and also the underlying data which were provided to me by the agencies listed in the previous slide. And that analysis indicated that there were serious errors which effected the outcome of the study and the conclusions that were drawn therefrom, and I'd just like to articulate those for you for a moment. First of all, the title of the study was "Analysis of Audiograms for a Large Cohort of Noise Exposed Miners", which was presented to MSHA, but it was not published in any journal. And, as a matter of fact, in the MSHA document, it was referenced as a paper labelled, "Franks, 1996", but in the references of the MSHA document, there is no reference to Franks, 1996. Rather, there's a reference to a NIOSH document, a letter provided by Linda Rosenstock to Mr. J. Davitt McAteer, dated August 6, 1996. And that letter includes the report. In the summary of that letter, Linda Rosenstock stated that the Franks study allowed the following conclusions. One, that coal miners have hearing losses that 2.5 to three times worse than would be expected for "the general public not exposed to work place noise." Secondly, that coal miners were eight times more likely to develop hearing impairment than the general public not exposed to work place noise. And then third, that the hearing losses observed in this evaluation of miners' hearing sensitivity were consistent with the work life exposure of ninety-eight to one hundred dBA. Next slide, please. Now, when I evaluated the report, I found the following errors, and I'd like to explain what these errors are and what effect they had on the outcome of the report. First of all, Dr. Franks, in this study, used as a control population Annex A of the ISO 1999 Control Standard. The Annex A of the ISO 1999 Control Standard is the same as the Annex A of the previously referenced standard today, the American National Standards Institute standard, S3.44, which is titled, "Determination of Occupational Noise Exposure: An Estimation of Noise induced Hearing Impairment." Annex A of that particular document represents a purely presbicoustic -- that is a purely age-related hearing loss population. It is highly screened and it is not representative of the population of individuals who come from a random sample of U.S. adults. As a matter of fact, Annex A of ISO 1999 assumes that hearing levels of eighteen year olds are zero dBHL. And, as a matter of fact, surveys of eighteen year olds, both in the United States and also abroad in European countries, show that the hearing sensitivity of eighteen year olds is worse than zero dB and at four kilohertz, that difference is about six decibels. Stated differently, if one used Annex A of ISO 1999 and compared it to a sample of eighteen year olds in the United States and asked what amount of occupational noise exposure would be required to produce the change in the difference of hearing levels observed, the answer would be ten years of exposure at eighty-five dBA. That is, even though the eighteen year olds don't have any occupational noise exposure, the procedure of comparing a random sampling of eighteen year olds to the ISO Annex A results in the estimation of a ten year exposure history of eighty-five dBA. And it's simply due to the differences in the screening or selection techniques for the two samples. The second -- there are better control populations, and I'll talk about those in a few minutes. The second error was Dr. Franks' use of inappropriate statistical descriptors and comparisons. When Dr. Franks evaluated the hearing sensitivity of miners, he reported the mean data. And when he described Annex A of ISO 1999, he used the median data. The median is the middle value, the mean data is the average of the values. Now, this is on page 66378 of the document. In any sample of measures of anything, if the population is skewed, then the mean and median are different. And, as a matter of fact, if the population is positively skewed, as our hearing level data, it turns out that the mean is worse than the median. And, as a matter of fact, I analyzed the hearing levels of coal miners and found differences as high as nine decibels. If one compares the hearing levels of the coal miners with the hearing levels of the coal miners, where one measure is mean and the second measure is median, one finds differences, on the average, of about 6.5 dBA. But in individual cases, up to nine decibels. And that difference is strictly due to a difference in statistical estimation and not any difference in the inherent distribution of the hearing sensitivities of the groups. So the -- when comparisons are made between a measured population and a control population, one must use the same statistical descriptives or errors will occur. Third, in the report, Dr. Franks reported that he evaluated 20,022 audiograms. These audiograms were produced after a request was made to NIOSH and the sample that I obtained only had 19,684 audiograms in it. And this was produced by Dr. Franks. I don't know exactly where the other thirty-eight audiograms went, but certainly the number in the sample did not agree with the number that was in the report. Secondly, in the report, Dr. Franks stated that through a filtering technique that he used, he reduced the number of tests from 20,022 to 17,260 and the number of coal miners from 3,449 to 2,879 -- or 2,871 -- and he reported in the document that this represented an 8.8 percent reduction of tests with an 8.3 percent reduction in miners. Well, 8.8 reduction from 20,022 is not 17,260. It's 18,260. I thought it was just a typographical error, but 8.3 percent reduction from 3,449 is not 2,871. 2,871 is about an eighteen percent reduction. So these numbers are wrong. I don't know why they're wrong and I don't know what errors were made, but I point out that even in the summary of this report, there are computational errors which lead me to question all of the computations of the entire report. Next slide, please. I was asked to review the 19,684 audiograms, and I determined that they should be compared to an age group data from an appropriately controlled population. And the control population I used was actually an example of database B and it's reported as Annex B of the ANSI S3.44 standard, which has been referred to previously today. These data represent the typical hearing levels of an unscreened population, except they are excluded from occupational noise exposure. No one in the population had more than two weeks of occupational noise exposure. This is a better comparison population because it better represents the hearing sensitivity of individuals who have factors other than aging which affects their hearing and that's what most of us are. So this is a more appropriate comparison population for determining whether the difference in measured hearing sensitivity in the population exposed to mining noise, in this case, is different from that which would be expected from the normal, random population of U.S. adults who do not have occupational noise exposure. I did that review and the appendix of my written comments include the analysis, and I'm not going to belabor all of us this afternoon with all of the numbers. But let me just tell you that, first of all, some of my findings did corroborate the findings of John Franks. I wanted to make sure that that's reported. That is, I did find that coal miners' hearing sensitivity was worse than the controls, and that was particularly true at three, four, and six kilohertz, and it wasn't true at low frequencies. But it was also particularly true in the older miners. Older miners have the worst hearing in the controlled populations, age matched control populations. And the younger miners had less worse hearing than age matched control populations. By using the same -- essentially the same procedures that Dr. Franks used in asking the question, how much occupational noise would one have to speculate was present to explain the differences between the two populations, one can then predict how much noise exposure for a thirty or forty year working lifetime is necessary. Using the ANSI S3.44 standard, one can predict -- can use that standard to estimate how much noise exposure would be needed to explain the differences in hearing sensitivity and the answer to that question is that the coal miner data, when properly assessed, suggests that the typical occupational noise exposures for coal miners are on the order of 89 dBA, time weighted average. Now, this finding really agrees with the other data that are in your document than the ninety-eight to one hundred dBA estimate that was provided by Dr. Franks. And I think the largest difference between the two estimates have to do with the inappropriate selection of the control population. Next one, please. At the meeting of the National Hearing Conservation Association this Spring, in Florida, Dr. Franks participated in the forum and he discussed the MSHA proposal. He also discussed the NIOSH criteria document at the meeting of the National Hearing Conservation Association. During the comment period, he was asked why he chose the median comparison and why he chose Annex A as the control group. And in response to that question, he said, "We did it that way because MSHA told us to do it that way." He then said that NIOSH was redoing the study and would submit it to a peer review journal for publication. I believe that this study should be submitted to a peer review journal and that MSHA should consider it in it's deliberations, but only after it has then gone -- after it has gone through the peer review process. I don't think that MSHA should rely on this preliminary study. I think they should evaluate the published version. I'd also like to add here something that I forgot to say at the very beginning. And that is, I read the written testimony of Dr. Robert Dolby, who was presented at a previous meeting, and I am not going to repeat the comments made by Dr. Dolby, but I want to state on the record that I fully concur with all of the findings and recommendations that were made by Dr. Dolby in his written comments. And I wanted to make sure that I let you folks know that I value his opinion and his statements are ones that I would have made, but they were already made by Dr. Dolby. Next, please. There were a couple of other things that I'd like to just go over briefly with you. And these have to do with the use of hearing protectors versus engineering controls. And I think that an important question here is -- at least to me, as a scientist -- is what are the exposures like in the mining industry? I think that if everybody is exposed at ninety-eight to one hundred dBA and higher, then we might have different recommendations than if most people are exposed between say eighty-five and 95. Reviewing the document, it appears that although most of the exposures are mentioned in the preamble are below a ninety dBA time weighted average, it appears from table 2-11 that twenty-five to thirty-five percent of those samples are over the limit. That is, they represent eight hour time weighted exposures which exceed ninety dBA. Also, it was reported in the preamble that 95.5 percent of the coal miners at risk of occupational noise induced hearing loss are exposed to time weighted averages below ninety-five dBA. So the problem of occupational noise induced hearing loss in the mining industry appears to be largely hazard to exposures that are below ninety-five dBA. So I think it's reasonable then to ask the question of whether hearing protectors can provide an adequate reduction and can prevent occupational noise induced hearing loss. That's very difficult to do and there are few data in the literature upon which we can evaluate whether hearing protectors actually protect the individuals who work in these environments. Next slide, please. I presented a paper at the Association for Asserts and Odalaryngatology meeting in 1996. And in that paper, co-authored by Dr. Carl Bohl, we used a database that was provided by NIOSH. This database is a sample of hearing levels of individuals who work in twenty-two U.S. and Canadian industries. And it was produced by NIOSH for scientific evaluation in 1986. This large database includes more than 145,000 audiograms of individuals who work in various noise environments and for various types of industries and also with and without hearing protection. From that large group, I found -- I evaluated the hearing levels of a group of individuals who had worked at least eight years for employees and whose first test was within one year of employment and whose exposure level did not vary year by year. And I also restricted the population to workers who reported on their annual questionnaire that they consistently wore hearing protection. Now, this set of data allows one to look at the hearing levels at year eight of exposure and compare them to hearing levels when the employee was hired, at year one of exposure. And the difference then would be the change in hearing that was caused by aging, as well as any potential exposure to noise and anything else. We also age corrected the data with the procedure that is recommended by MSHA at this standard. Next slide, please. The data for -- I'm just going to show you one set. This are data for 119 male workers exposed, according to the questionnaire, at levels of ninety-five to ninety-nine dBA and who consistently wore hearing protection. You see the little hearing ear muff over the lower right hand corner of the slide. The red -- first of all -- I don't have a point. It doesn't matter. On the -- now I do have a point here. Maybe the point will work. We'll see. It's a tiny, tiny point. We're going to start in the lower left hand corner. The axis is test frequency, five hundred to 6,000 Hertz. The ordinant is NIPTS -- noise induced permanent threshold shifts. This is the age adjusted difference between year eight measured threshold and year one measured threshold. The red bars represent the predicted NIPTS from the ANSI S3.44 document. This is the document that we used to predict or estimate the affects of noise exposure on hearing. So it was expected that we would have seen about twenty-three decibels of NIPTS at four kilohertz for this ninety-five to ninety-nine dBA exposure. The yellow bars represent the measured NIPTS. The age adjusted changes in hearing sensitivity for this group of 119 males who started at average age twenty-six and who worked through average age of thirty-four. And you can see that there was virtually no NIPTS. We also saw little or no noise induced permanent threshold shifts for exposures of ninety to ninety-four, and of course, for lower levels exposures, as well. These data strongly suggest to me that at least for this group of workers, the hearing protectors did work and they did reduce noise induced hearing loss in this group of individuals. Next slide, please. Because of those findings, it seems to me reasonable to -- that MSHA should modify paragraph C(1) of section 62.120 to read, "If a miner's exposure exceeds the PEL plus ten dB, the operator shall ... " and then follow the same reportings. That is, I think that engineering controls are required but I don't think that they are justified for exposures below one hundred dBA on the basis of the findings that I just reported. And this recommendation is also consistent with the directive, the OSHA directive, of one hundred dBA exposure for engineering controls that is currently enforced. Next slide, please. All right, I'd like to make a few comments about the criterion as well. MSHA has proposed the PEL level of permissible exposure limit of ninety dBA as the exposure limit for miners. I believe that this PEL is appropriate and adequate to protect miners' hearing and I think it should be retained. I believe that there is strong scientific support for the ninety dBA permissible exposure limit. Next slide, please. First of all, these concepts of percent risk and material impairment in hearing are quite complicated and I think that there is some confusion in the MSHA document and I'm going to provide some comments to you in the post comment period to try to clarify it. For example, while we're on this page, I want to point out that on page 66379 of the document, there is a chart R-1 which represents the percentage of coal miners exceeding a twenty-five dB hearing loss by the NIOSH document. The NIOSH determination of hearing impairment, which is the average of one, two, three, and four kilohertz. And there's a statement that say -- I'm sorry, the chart shows a comparison population on the bottom of it, and that comparison population is Annex A of ISO 1999, which I've already stated is inappropriate for comparison of miners. If you use Annex C of ISO 1999, you'll find that the hearing sensitivity in Chart R-1 of randomly sampled U.S. adults really is quite close to the coal miners' hearing sensitivity with the exception of the oldest coal miners where the percent impairment from the S3.44 is about fifty percent and the observed -- the data reported in Chart R-1, the differences are smaller for younger people. The point is that I think that there's no quite the risk that MSHA has assumed for occupational noise induced hearing loss because the risk is really the additional risk over what's expected from aging alone. And sometimes there is some confusion in the document about those statements. Let's go back over percent risk. Percent risk of hearing handicap, if you use the old AMA formula, which is five hundred and one and two kilohertz, it's one percent for a time weighted average dBA lifetime exposure and three percent for a ninety dBA exposure. If you use the newer guidelines and also use ANSI S3.44 for calculating risk, the risk is about five percent. A little less than five percent, but about five percent, at eighty-five dBA and about fourteen percent at ninety dBA. But it must be remembered that there are variabilities in the source data and in the interpolation procedures. And these obtained risk values are really only accurate -- this is kind of an educated guess -- of plus or minus about five percent. There is a recent study that was just published this year by Mary Prince from NIOSH and this study is really a re-analysis of the hearing levels of an industrial noise survey and a hearing levels study that was done by NIOSH from 1968 to 1972. Now, there are a bunch of problems with that study that have been cited by a number of individuals, including the fact that the study was supposed to be highly screened and exclude people who had gunfire history. But the exclusion criteria was five hundred shots a year or one thousand shots over a five year period, and that's a pretty good gunfire history. I disagree with that as an exclusion criteria. So the point is, those data do include some shooters. They do not exclude hunting and target shooting. On the other hand, the early analysis suggested the risk was quite high. Mary Prince has employed a more modern statistical technique and suggested that the median risk at eighty-five dBA exposure is about 7.4 percent, but the ninety percent confidence interval goes down to two percent. Next slide, please. That is, if you asked the question scientifically: what can we say with ninety percent confidence about the risk of material impairment in hearing using the NIOSH formula which Dr. Dolby has argued with and said that that was too conservative. If you ask: what is the risk at eighty-five dBA, you can say with ninety percent certainty that the risk exceeds two percent. And at ninety dBA, you can say with ninety percent certainty that the risk exceeds about twelve percent. This is a -- these risk factor values are a little bit lower than what has been cited in the older data and I think that they're more modern and should be used. Next slide, please. Okay, other support from the PEL. I'm going to skip the first one. The American Conference of Industrial Hygienists has used a justification for setting the PEL that I don't agree with, but I'll leave that for the written comments. Recent studies of hearing levels of industrial workers -- and this one is important -- do show that they have worse hearing than a random selected sample from the population. There's a book that was published last year called "Effects of Noise on Hearing". It has a chapter by me from the United States, and a chapter by Mark Lottman from England. Lottman's is a national survey of hearing levels of industrial workers. Mine was survey of industrial workers in low noise environments on that same NIOSH database. Both studies found the same thing: industrial workers, even at the hiring date, have worse hearing than a random sample of control populations. That means if we look at hearing levels of workers today, whether they're coal miners or anybody else, and compare them to the control population, we're going to be calling some of that loss due to occupational noise which really it's not. It's just that the workers coming into the job with worse hearing than what we thought they would have on the basis of our samples from the random sample of the population. That's what I mean when I say comparing the workers' hearing to the general population. I think the effects of occupational exposure are overestimated. By how much I really can't say. The other thing that I've already mentioned is that the ISO document and the ANSI standard, S3.44, assume that eighteen year olds have perfect hearing and they do not. Next slide, please. No, hang on a second. Skip to the next one. There we go. There we go. The logical conclusion is that there's not very much -- I said really no risk, but there is a risk, but I think the way to think about this is that there's no much measurable risk at eighty-five, and that there's little risk at ninety. And I stated it the other way from what we usually state these things. I think that there's a tendency to think about that hazard and to assume that everybody in the work place at ninety is going to get a material impairment in hearing. That's just not true. Ninety-two to ninety-seven percent of workers who work for a working lifetime in the ninety dBA environment will not get a material impairment in hearing. And those who do -- I mean, the criteria for material impairment is just crossing that threshold. It is just not the case that workers are being deafened by these noise exposures, although I believe that there's enough risk at ninety, ninety-eight, and above to justify hearing conservation programs and a regulation of noise exposure. And I think with the actual level at eighty-five that we have the mechanisms to protect the hearing of individuals. The other thing that I think is important to keep in mind is that few individuals spend an entire working lifetime at the same job and so the risk might be even lower than what we're estimating because the estimates are based on the assumptions that individuals will stay in that noise for the entire working lifetime. Therefore, I believe that the MSHA proposed standard which establishes a PEL of ninety dBA for eight hours provides reasonable protection against sustaining occupational noise induced hearing loss for a working lifetime and lowering the criterion, in my opinion, to an eighty-five dBA will not materially increase protection. Now that position differs from the position that you heard Dr. Suter make this morning and she said that she represented one hundred thousand professionals. I'm a member of several of the organizations that were cited and I just want to make sure that you know that this is my individual position. I'm not stating that this is a position of the Boards of Directors of any of those agencies and I really was not aware that the Acoustical Society had taken the eighty-five dBA position. I just don't know. But these are my individual positions. Next slide, please. Okay, a couple of other things. I'd like to make a few comments on the exchange rate. The MSHA has proposed to retain the existing five dBA exchange rate because of feasibility considerations. And in it's review, MSHA concluded that the consensus scientific opinion supported the three dB exchange rate. I don't believe that. I believe that scientific opinion has been dominated by a local minority and that as much as evidence exists which supports the five dBA exchange rate, particularly for non-continuous exposures, which I believe are commonly found in the mining industry, the five dBA exchange rate, I believe is the most appropriate choice for characterizing the biological effects of noise exposure. Next slide, please. The purpose of an exchange rate is to predict the biological effects of noise. That is, the hearing loss that it produces, not the amount of acoustic energy in the exposure. And I agree that three dB is the appropriate metria for calculating energy in an exposure. But it is only appropriate for calculating hazard to hearing if hearing loss is linearly related to exposure. And we know it is not. I'm not going to go through all these principles of non-linearity, the acoustic reflex, stapes rotation, and cochlear non-linear biomechanics, the olivocochlear system are all biological systems that contribute to the hearing sensitivity of humans are they are all non-linear. Not only at high levels but also at threshold. Consideration of these arguments, I believe, forces one to reject the equal energy hypothesis as the unifying principle. Next slide, please. There are several studies that are cited in my written comments which support the five dB exchange rate, and these studies were ignored by NIOSH in it's review of the exchange rate issue and were not cited by NIOSH even though they were published long before the NIOSH criteria document was issued. The other important source of information is a review published by CHABA, the Committee on Hearing and Bio-Acoustics at the National Academy of Sciences. CHABA reviewed all the data about hazardous exposure to continuous and intermittent noise and concluded that the appropriate exchange rate depended upon the level and temporal characteristics of the exposure and it could vary from zero to eight dB, depending on those characteristics. But most occupational exposures are not continuous. And I think that's especially true in the mining industry and I believe that there are -- well, I don't believe it, there are recent laboratory studies of intermittency that show that intermittency is protected and the three dB rate is, therefore, over conservative. Next slide, please. So, in conclusion about the exchange rate, I believe that the three dBA exchange rate cannot be shown to be a better predictor of noise induced hearing loss than the five dB rate. I believe that changing to the three dB rate ignores known non-linearities in the effects of exposure and underestimates the protective effects of intermittence. And I believe that MSHA is correct in it's decision to retain the five dB exchange rate. Next one, please. Next issue is age correction of audiograms. MSHA noted NIOSH's advice against age correction, but allowed them in this proposed standard. I wrote, "Way to go, MSHA". Sorry, this was late at night when I wrote this thing. I do think that this is correct. I believe that the optional use of presbycusis correction tables is appropriate and it should be retained. I think that the NIOSH concern, if I understand it, stems from what I called the inappropriate for individual argument. That is, we know that individuals vary in their susceptibility to hearing loss as they age, and it's very hard to predict on a per person basis how susceptible that person is to presbycusis. But, however, -- sorry, it's misspelled, the same late night -- everybody does lose hearing as she or he ages, albeit perhaps at different rates. And the net effect of eliminating age correction in the STS calculation is to increase the STS, as I identified it. And it necessarily will do that. And in the perfect hearing conservation program -- and I agree that they probably don't exist -- but in the perfect hearing conservation program, than every identified STS would be spurious. Let me give you an example. Next slide, please. Consider a work force who all start working at the age of twenty-five. They work for twenty-five years, and they are completely protected from the effects of noise exposure. The presbycusis protection at two, three, and four kilohertz is fifteen dB for a twenty-five year old and it's forty-seven dB for a fifty year old. That's a thirty-two dB difference, divided by three. That's a little over ten, so that's an STS. If all workers were at the median, and the baselines would not have been adjusted because they didn't get STS's, then one hundred percent would have an STS after five years without any occupational noise exposure at all. In that case, every single one of those STS would be wrong, would not be related to occupational noise exposure. But in the real world, it's not that clear cut. I agree, but I think without age correction, as we get better and better hearing conservation programs, if we do not allow age corrections, we're going to increase the percentage of STS's that are spurious, and I think that that doesn't help anybody. Finally, I'd like to comment briefly on the ceiling limit. And you've already heard comments today about the ceiling limit. I think that there's getting to be a consensus opinion that the ceiling limit should be eliminated. MSHA has retained the ceiling limit on the following basis, as I read the preamble. One is the statement really from NIOSH that said that no -- I'm sorry, MSHA's statement, based upon input by NIOSH, it said that no scientific consensus exists on the question of the sound level above which permanent damage occurs, regardless of the duration of the exposure. And NIOSH is finding that the critical level is one hundred fifteen to one hundred twenty dB. Both of these assertions are wrong and I'd like to just add here that the way I read the document says that all sounds are measured with a slow weighting on the sound level meter and with it set to A weighting. So we're not really talking about impulsive measures at all. The way the current document is written, we're talking about measures of continuous exposures with a one second integration time. Next slide, please. There may be some disagreement on the relation between temporary hearing loss and permanent hearing loss about what level is safe and whether fifteen minutes a day at one hundred and fifteen dBA is hazardous, but I think it's important to remember that no one disagrees that two seconds at one hundred and sixteen dBA will not hurt you. That's sort of a double negative there. I'm trying to say that that exposure is safe, it just doesn't cause any harm. And that exposure not only happens commonly, everywhere, including in this room if I happen to get too close to somebody when I say hello to them, but it also doesn't cause any hearing loss and it is also prohibited by your current regulation. The CHABA publication, I think, covers these issues and supports this exchange rate calculation up to one hundred and thirty dBA which is implied in the rest of your regulation and I believe the ceiling rate should be eliminated. Next slide. The other issue about the hundred and fifteen dB being the critical level, this concern really is based upon studies of impulse noise which were carried out on chinchillas. Now, I've published about twenty papers on chinchilla hearing sensitivity and it is generally known that chinchillas are more sensitive to noise than humans. It's not surprising that that critical level is as low as one hundred and fifteen dBA in chinchillas, even though these exposures are completely safe for humans. So I don't think that that argument should be made about the ceiling limit. I think NIOSH should change their document, and therefore, I recommend that the requirement for the proposed standard of one hundred and fifteen dBA should be eliminated. Oh, there's a -- I have a note that was just handed to me saying that I should identify the difference in definition of material impairment in hearing. And it's MSHA versus AMA versus OSHA, so I'll just mention briefly for the record that the American Medical Association of material impairment and hearing is based upon the hearing threshold level that interferes with the ability to understand speech under everyday listening conditions. Both the quiet and the noise. If you read the AMA document, when three kilohertz was added to the formula, one of the rationales for that was that it better predicted speech intelligibility and noise. So the purpose of that formula, that set of formulas, with the twenty-five dB fence, is to correlate the pure tone of audiometric results with the ability to understand speech or inability to understand speech under everyday listening conditions. NIOSH has used a different definition of material impairment of hearing, which is one, two, three, and four. And the justification for four kilohertz, as I read it from NIOSH, was that four kilohertz was one of the first frequencies affected by noise. Well, it may very well be one of the first frequencies affected by noise, but unless that has something to do with speech perception, that is not an appropriate rationale for including that frequency. And, as a matter of fact, the Prince formulation of the material impairment formula used by NIOSH states that NIOSH is using the material impairment formula which was approved by the American Speech and Hearing Association. That formulation was really, I believe, in 1984 a task force recommendation to NIOSH and I don't believe NIOSH ever adopted that as a national policy. And furthermore, NIOSH changed the formulation by adding what's called an articulation index waiting function on each of the frequencies, which is maybe all right, but there is no one who ever evaluated whether that particular metric has anything to do with speech intelligibility. So there are a lot of formulations out there and I think it's very important for MSHA to think about these formulations, and I recommend that you adapt the American Medical Association, the American Academy of Odalaryngatology definition of material impairment in hearing and use that throughout your document. Do you want me to do the slides? Okay, let's go on. Then I would just like to thank you for the opportunity to speak and can address any questions if you want to, now or I'll wait a few minutes until the last presenter. Whichever. I'll sit. All right, thank you. MR. ING: Thank you, Dr. Clark. Our next speaker is Dr. Timothy Rink. Dr. Rink is the founder and President of HDI Incorporated, a private company that provides mobile testing services on health and hearing conservation on clients located in the Midwest. Dr. Rink's previous professional experience includes adjunct Assistant Professor for speech and hearing section, Department of Hearing Communication at the Ohio State University and Director of Audiological Services for the Ear, Nose, Throat and Head and Neck Surgeons, Incorporated. I would also like to have Dr. Rink's curriculum vitae attached as part of our record, which we'll supply you with. Dr. Rink? DR. RINK: Thank you, and let me also express my gratitude for having the opportunity to present some information to the panel today. I was invited in basically to overview an article that I had published in the Journal of Occupational Health and Safety reviewing the audiometric records on a large database of clients that we provide services to. And in preparation of presenting that information and expanding on that information to you, I would simply like to overview the fact that in 1983, the Hearing Conservation Amendment to the Noise Act came into play and essentially elevated hearing conservation programs onto equal footing, or at least onto compliance footing with engineering and/or administrative controls. And I would say to you today that if you went into the manufacturing sector, who I work with predominantly, and ask the plant personnel how they're dealing with the noise problems in their work place that the vast, vast majority would respond to you that we have an ongoing hearing conservation program. They're certainly not looking away from engineering controls when they're effective, efficient, applicable, and of course, rolling around that word, when it becomes feasible. Now, having said that, I would also like to point out that when the Hearing Conservation Amendment was adopted, it did point out four key components of an effective program being monitoring the work place, providing personal hearing protective devices to individuals, training the employees on the effects of noise and ear and how to use that protective equipment properly, and establishing an audiometric testing program parameters that revolve around that. And I'm not going to define that. I think we're all familiar with those. I would like to point out though that when you opt to establish and maintain a hearing conservation program in a noisy work place, the vanguard of that program is the personal hearing protective device. In other words, what you're really saying is that we've opted to protect the individual and to train him how to do that properly, and then separately and, I think, very importantly, to establish an outcomes measure base, that is the audiometric testing program, to determine the effectiveness of what we're trying to do. In other words, if we are measuring people changing, and that change is something that is an unacceptable rate, then the program is not working. It's not effective. So having said that, I'd like to present some information to you now that reviews the audiometric records that we've gathered over the past seven years. The article that I published was a five year review and it did not include 1990 because when I sat down to write the article, I figured that a time frame of five years was probably an appropriate time frame. And since that article was published, I've updated for 1996. I'm going to move simply through this to the very next slide so that I can run the seven year total and use that over here on the far right side as the basis for explaining what you would see if you looked at each and/or any of the years that were presented. Over the past seven years, we have evaluated the results of four hundred and eighty-six thousand hearing tests that have been given to industrial environments throughout predominantly the Midwest United States and I would add that we've reviewed data coming in from every state in the United States, as well as Canada, Puerto Rico, to name a few. And over that period of time, and since 1990, we've established a protocol at HDI whereby our audiology staff sits down and when an STS has been identified following an age correction, our staff, by professional review, establishes whether the shift pattern that has been identified is a shift pattern in hearing that is consistent with occupational noise exposure or whether we're looking at a pattern that is not consistent with occupational noise exposure. Without getting too clinically technical, we're simply looking for bilateral high frequency shift patterns whereby at least one ear, of course, has the standard threshold shift of ten dBA or greater. And if you ask me if both ears have to have that ten dBA shift or greater pattern to be considered classic noise induced hearing loss, the answer's no. In my own personal judgement, I feel that about half of them are. We typically see a twelve dB high frequency shift in one ear and maybe an eight or nine dB shift in the other ear. So you have symmetry often. Very often. Six thousand and eight thousand, and we'll show thirty dB drops that are not part of the OSHA frequencies that are being reviewed. So the symmetry can be viewed easily, and of course, we do this on a computer screen and when we do the review, we have the entire audiometric history chronically right in front of us. So you can see these notches occurring and you can follow them quite easily. Over the past seven years, our audiology staff, by review, has identified twenty-three thousand, one hundred and twenty four tests that have been consistent with occupational noise exposure or 2.73 percent of the population being tested. Another group of forty-two thousand, four hundred and seventy-eight people, or 5.02 percent of the population demonstrated OSHA STS's that the pattern did not have the bench marks of noise exposure. That is to say, they were unilateral, flat hearing loss patterns or bilateral patterns with a preponderance of low frequency change which, of course, is mechanical in nature. We are not making diagnostic comments here. We don't know whether that flat pattern has occurred because of an upper respiratory infection or an acoustic neuroma. Our goal is not to make a diagnostic statement but simply to identify when an STS is clearly and classically the type of change that we would expect to see from exposure to occupational noise. Now, from the past twenty years -- by the way, the total number of STS's, if you merge those two groups together, was sixty -- help me -- sixty-five thousand people, and it was 7.75 percent of the test population which correlates quite closely with the statistics showing about ten percent of populations being tested recording STS's. HDI has always offered and provided re-testing of people demonstrating standard threshold shifts. Unlike the MSHA proposal, the OSHA standard very clearly outlines a procedure for allowing, permitting, re-testing to determine whether or not a shift that has occurred on an annual test is persistent or not persistent. We've coined, of course, a term, persistent threshold shift, based on that definition. As you can see from the twenty-three thousand people that were identified as showing initial shift patterns on their annual test, when that population was re-tested, eleven thousand confirmed by re-test. Eleven thousand, three sixty-six. It went from two seven three, 2.73 percent, to 1.3 percent. Almost fifty percent exactly confirmed by re-test and fifty percent did not. When you talk in terms of reportability or recordability, if you opt not to re-test the population, even a noise induced shift population, and you take an annual test and deal with that test as if an incident has occurred, you're wrong fifty percent of the time. The other thing that I would point out is that those individuals showing shift patterns not consistent with noise, as you might well expect with upper respiratory infections, hay fever, head colds, what have you, that population dropped from 5.02 down to 1.32. About eighty percent of the people showing shift patterns on their annual test that it qualified as an STS do not confirm by re-test. The total number of STS's dropped from 7.75 to 2.66. Could we go to the next slide? I'd like to present this to you now graphically, because it makes some very important visual impact, I believe. Over the same seven year period of time, our industry average for those people showing changes not consistent with noise -- and these are STS's as defined by OSHA -- was 5.02 percent, right across there. As you can see, with a little bit of variance, we've been fairly consistent in the number of people being reported in this category. The yellow represents those that on re-test confirmed. And of course, when you do a follow up examination, you're either going to confirm by re-test, or go back and tell the individual that they've had a temporary threshold shift. Eighty percent of the people in this category are being told that a temporary threshold shift had taken place. Now, what I would like to say to you is that this tells me that when about a hundred and twenty-five thousand people are being tested annually, that if we took a population of non-noise induced individuals and the population in the end was large enough, this probably represents something close to what we could expect to see as standard threshold shifts occurring in people who have no noise exposure. These are people who have STS patterns. In other words, they've exceed the ten dB threshold shift at two, three, and four thousand, but the pattern has nothing to do with an occupational exposure. I would also point out that when a test takes place in a population of industrial employees, there are going to be people there who have these types of problems, upper respiratory infections, head colds, what have you, and that you can't control that population. They're there, they're among the people you're testing. Now, let's move on to the next slide, please. This slide represents the individual showing standard threshold shifts as defined by OSHA and the pattern is consistent with occupational noise exposure. And I think that you can see very clearly that over the past several years, there's been a very noticeable decrease in the number of STS's recorded. And equally impressive to me is the fact that each year that a number or a percentage is identified, the confirmation drops off to fifty percent almost on a clock-like basis. What we would like to point out is that during the past seven years while our industry average has run at about a 2.7 percent, there has been a downturn in the number of STS's recorded and for the sixth year in a row, the number of persistent threshold shifts has dropped. Last year, out of a population of one hundred and thirty-six thousand people tested, we only have .95 percent of the population demonstrating a threshold shift that was confirmed by re-test that was consistent with occupational noise exposures. What I believe this is pointing out is the effectiveness of hearing conservation programs in industries where the programs are effectively managed and adhered to. Thank you. MR. ING: The final speaker is Mr. Bruce Watzman. Bruce is currently the Vice President of Safety and Health for the National Mining Association. He's intimately familiar with the interests and concerns of miners and the needs of the mining industry and of MSHA. Mr. Watzman is a member of the American Industrial Hygiene Association, the American Conference of Governmental Industrial Hygienists. He serves on various boards and committees and his function is the health and safety of miners. MR. WATZMAN: Thank you. As Wes indicated, my name is Bruce Watzman. It's spelled W-A-T-Z-M-A-N. I'm the Vice President for safety and health of the National Mining Association. In the interest of time, I will submit my complete statement for the record, but will only touch upon a few points. We appreciate the opportunity to come before you today and we will be providing more extensive comments on the department's economical analysis to accompany the rule. These will be followed up by the close of the comment period. Today, however, I will focus my remarks on two areas. First, technical feasibility and second, the presentation of limited audiometric and noise survey results from analysis conducted by two operators whose miners utilize hearing protection. As I mentioned earlier, we will file detailed comments on the economic analysis. Review of that document has been a difficult task because of the detail contained in the document and the assumptions employed by it's authors. While we differ with many of the conclusions, we nonetheless applied their efforts. Analyzing an industry as diverse as the mining industry is an extraordinarily difficult task. The Department of Labor's statement of regulatory priorities, published on November 29, 1996, stated that new rules must be both effective and minimize the burdens on the regulator community. Further, DOL stated that they would explore new approaches that achieved regulatory controls at lower costs and with greater flexibility for the regulator community. It's with these goals in mind that we are analyzing the economic analysis. Our initial conclusion is that the proposed rules fail to achieve these goals, namely, regulating at lower cost and with greater flexibility. While the rule is performance oriented, it precludes the use of proven noise containment technology to reduce miners' exposure and thus limits rather than enhances operators' flexibility. Let me give one example that will be discussed in greater detail in our comments. During the last eighteen months, one of our member companies has undertaken an equipment modernization program to, among other things, reduce noise exposures. They've spent $5 million to date, replacing thirteen pneumatic junk jack-laid drills and several of it's loaders. The pneumatic drills were replaced with electric hydraulic drills. This resulted in a noise reduction from one hundred and twelve dBA to ninety-eight. Replacement of the loaders resulted in a reduction from one hundred and three to ninety-eight. In both instances, having spent $5 million to date, for state of the art equipment, the engineering controls do not achieve compliance with the permissible exposure level. I should note that the company's expenditures, theirs alone, exceed fifty percent of OSHA's estimated compliance costs for the entire industry and because the equipment has not achieved compliance, the operator is still required by the agency to utilize dual hearing protection. The preamble to the proposed rule, and more specifically, question number 13 discusses the concept of feasible engineering controls. IT states, "MSHA has considered three factors in determining whether engineering controls are feasible at a particular metal and non-metal mine. First the nature and extent of the overexposure. Second, the demonstrated effectiveness of available technology. And third, whether the committed resources are wholly out of proportion to the expected result." The example just discussed calls into question how the agency quantifies the third criteria and it's application throughout the industry. Mr. Ing spoke earlier about the question of risk. And the Mine Act talks not only about -- not only the Mine Act, but the courts have also provided guidance and direction in meeting this threshold. So too has guidance provided -- been provided regarding the question of feasibility. The Mine Act provides that, "In addition to the attainment of the highest degree of health and safety protection for the miners, other considerations shall be considered. One being the feasibility of standards." As the legislative history of the Act shows, Congress intended technologic and economic feasibility should be considered. Thus, costs and technical feasibility are to be carefully considered and the impact of new standards must be reasonably related to the standards expected. It is this area that technical feasibility of compliance with the proposed rule that we have our greatest disagreement with the proposal. If you'll put up the first slide, Wes. What we have done, and these are missing from the docket, is gone back for the last five years and looked at technical feasibility reports where individuals from MSHA's technical support office have gone out to work with operators in the metal, non-metal sector of the industry because inherent in the preamble is the assumption that metal, non-metal has succeeded in engineering noise out of the work environment. What these reports show is that that is not the case. The Eswell reductions have been achieved, in the first case from 103.1 dBA to one hundred and two. What we find time and time again is the conclusion of the reports and the recommendations of the reports are that hearing protection must continue to be warn for maximum operator protection, even though applied controls did provide good reduction. You can go to the next one. Once again, time and time again, with various pieces of equipment, while reductions were achieved, some of them feasible under MSHA's definition of dBA reduction, the fact of the matter is that the engineering controls, after quite a bit of expenditure, did not obtain compliance with the standard and hearing protection was to be worn. The agency recognizes the valuable role of hearing protection, yet through this rule, it is precluding operators of using that as a principle means of control. Dr. Clark and Dr. Rink have shared their thoughts on hearing protectors and effective hearing conservation protection program. We share their beliefs and are working diligently to provide the agency with the database and analysis of thousands of miners who utilize personal hearing protection. The preamble to the proposed rule requested this data. The procedures which must be followed in obtaining permission to share the data and the need for analysis are lengthy. We appreciate the extension and we will work diligently to provide this information to the agency within the time provided. Today, I'd like to share with you some very limited data. The data comes from two companies that operate both surface and underground coal mines. In one case, the company conducted a survey of miners with the highest noise exposure. In the other, all miners were surveyed. In the first case -- if you'll put that up, the next overhead. Oh excuse me, go ahead, the findings. (Pause.) In the first case, sixty employees consented to have their audiograms reviewed. Their results were adjusted for age based on what we believe is the appropriate method, which I'm sure is adopted. The observations. Unadjusted for age, fourteen of the sixty employees show a ten dB or greater shift in one ear. Adjusted for age, three employees show a ten dB or greater shift. Unadjusted for age, eleven show a ten dB or greater shift in both ears. Adjusted for age, no employees show a ten dB or greater shift in both ears. And lastly, no employee showed a twenty-five dB or greater shift in either ear. Next slide. Similarly, in the second case, one hundred and forty-four employees consented to have their audiogram records reviewed and utilized for a study. Once again, age-based factors were utilized as provided for in the proposed rule. Similar results can be seen. Unadjusted for age, twenty employees show a ten dB or greater shift in one ear. Adjusted for age, nine show a ten dB or greater shift in one ear. Moreover, the results of one record is suspect and is being looked at. Adjusted for age, no employees show a ten dB shift or greater in both ears and no employees show a twenty-five dB shift or greater in either ear. These are quite compelling and if we reflect back on what Dr. Rink just testified, there were no follow ups done in these cases. So, in fact, the numbers may be lower than presented here, or they may be somewhat higher, but we don't know that because these companies don't retain the conduct follow ups analysis as Dr. Rink does for his clients. We're concerned that the agency's goal, which we share, is being approached through the wrong means. Our analysis indicates that in many instances, short of installing fully enclosed caps, the industry has exhausted all feasible engineering controls. Moreover, in many instances, the installation of caps will present safety hazards which do not currently exist. This runs counter to safety practice and is inconsistent with the Mine Act which mandates that new standards not result in the diminution of safety. It is our hope that by all feasible engineering controls, the agency does not envision the installation of fully enclosed cabs on all equipment and we would ask that guidance be provided on this question. NMA urges that MSHA to reassess this proposal in light of the requirements of 101(a) of the Act. In promulgating a mandatory health standard under that section, MSHA must first identify the hazard and quantify that hazard, i.e., to determine whether unregulated working life exposure to the hazard is sufficient to cause a miner to suffer material impairment of health or physical incapacity. Both the identification and quantification of the risk must be based upon the best available evidence. While the health and safety of miners is of paramount consideration, MSHA must also consider the feasibility of the proposed standard, as well as the experience gained under the Mine Act and other safety and health-wise. Most obviously, of course, the MSHA statute and MSHA's -- the OSHA statute and OSHA's experience. Additionally, the agency need not restrict it's standards simply to a permissible exposure level, but also may consider, where appropriate, the use of appropriate protective equipment. In any event, when revising the existing standards, a new standard may not result in the diminution in the level of health or safety that's already provided. We believe that the following questions are crucial to the promulgation of a sound and effective standard must be addressed. First, has the agency established by best available evidence a significant risk of material impairment of health to justify these proposed revisions to the existing standard? Second, has the agency established by best available evidence that the proposed rule will provide tangible benefits, and if so, to what extent? Third, is the proposed standard technologically feasible? Particularly with respect to the elimination of credit given for hearing protection and determining compliance with the current standard. Fourth, notwithstanding the Mine Act subordination of economic feasibility with respect to health standards, has the agency adequately addressed the cost of the proposal to the industry and it's customers? In particular, has the agency complied with the direction of Congress, the cost analysis be employed in "taking into account alternative means of accomplishing the primary goal of minimizing worker exposure to unsafe working conditions"? In this case, the use of hearing protection. Fifth, with respect to the elimination of hearing protection as a means of compliance with the noise standard, has the agency justifiably foreclosed alternative means of compliance for all operators, but in particular small operators, in contravention of the Regulatory Flexibility Act, Subreefa, and Executive Order 12866? Has the agency unjustifiably ignored the experience gained under other health and safety laws, particularly the OSHA statute? Has the agency proposed a standard that will provide less protection than the current standard, especially in the case of coal, which allows for hearing protection as a means of compliance? In closing, NMA strongly supports the MSHA -- that MSHA consider adopting the current OSHA standard, including the policy set forth in the agency's field operation manual. A number of our operating member companies must comply with both OSHA and MSHA, and we see no justification for having to design fundamentally different compliance programs to protect workers on contiguous sites. In the alternative, we would recommend that MSHA revise it's proposal so that it's requirements and goals are compatible with the OSHA program. In particular, we strongly urge MSHA to incorporate hearing protection into both the compliance and hearing conservation components of the rule. Either alternative would provide the correct answer to the questions I referred to earlier. Although we will be filing extensive post-hearing comments on this crucial proposal, we thank you on behalf of our members for providing us the opportunity to testify and would be happy to respond to any of your questions at this time. Thank you. MR. VOLOSKI: Could you please submit your overheads in the -- MR. WATZMAN: We have them all. (Pause.) MR. WATZMAN: I've provided you a copy of my statement, of Dr. Clark's statement, Dr. Rink's overheads I will be providing you, and we will submit in short order Mr. Ing's statement that he presented and his overheads. I can't get this microphone to stand still. Did you break it? MR. VOLOSKI: I'd like to ask Mr. Rink a question. On these STS's, when you went back and looked at them to see if they were, in actually, an STS -- DR. RINK: Okay, please -- MR. VOLOSKI: -- you have found some STS's and then you went back to see if the STS's were persistent. DR. RINK: That's right. MR. VOLOSKI: On the retest, did you do a fourteen hour quiet period? DR. RINK: No? No, that was done as a routine follow up picking up threshold shift personnel, as well as picking up people who missed their annual test when that was being done. So the answer's no. MR. THAXTON: Okay. Thank you. DR. RINK: Okay. MR. THAXTON: While you're up there, Dr. Rink, to keep you from running back and forth -- DR. RINK: Okay, that works. MR. THAXTON: That's okay? The data that you put forth as part of your overheads, can you tell us what group of occupations that those people represent? DR. RINK: In the Midwest, it's predominantly manufacturing. If I had to break it out into groups, the -- to answer your question, are you getting around to whether there were miners in there? MR. THAXTON: No, I'm asking the type of -- DR. RINK: Okay, well, I did try to get a hold of that information. Less than one percent of our test population are miners. These are predominantly manufacturing locations throughout the Midwest United States. MR. THAXTON: Can you give us an idea then of the average noise level that these people have been exposed to? DR. RINK: They all had been exposed above eighty-five decibels in hearing conservation programs. MR. THAXTON: Can you be more specific though? Had they been exposed to what were ninety-five dB without consideration of hearing protection? DR. RINK: I could do it with the database analysis, but what we used the information I just shared with you for is to do bench mark reviews for our clients as to whether they are meeting the kind of information we're seeing from the industry in general. In other words, what we like to do, outcomes measures like I presented to you, as a basis of evaluating the effectiveness of people that we're working with. And as I said before, we're preparing right now to do it by SIC code as well as in general. So if we return a report to an individual company and the number of standard threshold shifts they're reporting is running about 1.1 percent and they're hitting the target, there we think the program is showing an effectiveness that's related to a fairly large population. If, on the other hand, we go back and find that three or four percent of the population is demonstrating standard threshold shifts consistent with noise, and yes, I talk about these, then we want to do a program review and undoubtedly I can relate to you that my experiences will be to go out and find out that people weren't wearing their hearing protector devices and the program has slipped away. (Pause.) DR. RINK: Next? MR. THAXTON: That's all. Dr. Clark? I found it interesting that you had the listing for the ACGIH in your overhead, but you did not give a reason as to why you disagreed with them. Would you care to elaborate on why you -- DR. CLARK: Yes, I'd be happy to. The basis for the ACGIH recommendation was to select an exposure that would produce less than two dB of noise induced permanent threshold shift. That basis is not made upon any estimation whatsoever of material impairment of hearing or on the ability of individuals to communicate in quiet or in noise. It's simply based upon an estimation of predicted noise induced permanent threshold shift. The only justification I could find for it was if you go to the ISO document, or the ANSI standard, and ask the question: how much NIPTS is predicted for an eighty-five dB exposure? It turns out that it's about two dB, which is -- which it seems to me to be a circular argument. The point is, the point I'm making is that I don't think that a number of noise induced permanent threshold shifts decibel value, particularly a small value, for thresholds in the two, three, or four kilohertz region, should be used as a basis for establishing a criterion value. MR. THAXTON: Secondly on this, and Dr. Rink may actually want to respond to this as well as it goes to both of your comments and presentations, basically, you indicated that your analysis of the Franks data indicated that people were exposed to a predicted level of up to eighty-nine dB that undoubtedly people would have been exposed to less than ninety-five dB. DR. CLARK: Well, I averaged. MR. THAXTON: On average -- DR. CLARK: Those are the average data, or median data, right. MR. THAXTON: Would you agree, as a professional, that controlling exposures though that are ninety-five or less dB through engineering controls is much more obtainable than exposures that would be of one hundred, one hundred eight dB as we've seen on some examples? DR. CLARK: Unfortunately, my expertise does not include at all expertise about engineering controls for equipment. So I really -- I don't want to speculate. I mean, if you asked the question: is it like that a device that produces ninety-two dBA of sound can be reduced to eighty-nine more likely than a device that produced one hundred ten can be reduced to eighty-nine, the answer's obviously yes. I think that the issue of reducing it down two PEL gets mixed in with this issue about how easy it is to do engineering reductions. But once again, I don't do engineering noise control and I would like to defer that question to other people who can answer it better than I. MR. BAILEY: I'm in the same boat. DR. CLARK: Okay, but I certainly would say that if you've got a one hundred and five dB exposure, you're going to have a lot tougher time engineering that down to ninety, obviously, than you are for a ninety-one or ninety-two dBA exposure. MR. VOLOSKI: Mr. Watzman, at the beginning you talked about one of your member companies noise controlling jack-laid drills by getting electrical -- electric drills and you had some nice reduction of about four dBA, and you talked about loaders. Could you identify the type of loaders? Are they front end loaders? Are they loading machines in the coal mine? What type of machines are they? MR. WATZMAN: I don't have that for the record. I have that, but I don't have it with me, so I will provide you details on both the type of equipment and the manufacturer of the equipment. MR. VOLOSKI: Thank you. MS. PILATE: I have one question for Bruce Watzman. On the $5 million cost figure that you provided us for replacing fifteen pneumonic drills and there's another type of engineering control you mentioned, what is included in that $5 million cost? Is that only equipment cost? MR. WATZMAN: That is equipment purchase cost. MS. PILATE: And how many, for that particular facility, how many employees are -- work at that facility? MR. WATZMAN: I do not know that information. I will provide it to you. MR. CUSTER: Thank you, gentlemen. We're going to take a fifteen minute recess at this point. Or okay, at the risk of losing someone, the panel has overruled me and we will take a thirty minute recess. Thank you. (Whereupon the hearing was recessed at 2:50 p.m. for a thirty minute recess.) // // // // // // // // // // // // // // // // // // // // // A F T E R N O O N S E S S I O N 3:33 p.m. MR. CUSTER: If I might have your attention, please, we're going to re-open the public hearing at this time. The next scheduled speaker is Robert J. Blaylock, Arch Minerals. (Pause.) MR. BLAYLOCK: Good afternoon. Are we ready? MS. PILATE: Yes. MR. BLAYLOCK: My name is Bob Blaylock, spelling B-L-A-Y-L-O-C-K, with Arch Minerals. Okay, I'm the Supervisor of Safety for Arch of Illinois, a division of Apogee Coal Company, and Apogee is a wholly-owned operating subsidiary of Arch Mineral Corporation of St. Louis. Arch Mineral is one of the nation's largest producers and markets of bituminous coals. It's subsidiaries mined and sold almost $29.5 million tons in 1996, and has seventeen coal mines in five states. Arch Minerals' operated subsidiaries extract coal from both surface and underground operations. Arch Mineral also ranks consistently as one of the safest coal companies in the United States. Using MSHA criteria for measuring safety, Arch Minerals' operations were the overall safest company in the coal industry in 1995 and it was ranked among the top three safest coal companies in the nation for the last three years. Just last month, both Captain Mine and the underground Conant Mine at Arch of Illinois were determined to be the safest mines in their respective classes in the state of Illinois. I am pleased to be here this afternoon as a representative on behalf of Arch Mineral Corporation. I dwell on our record, not because I want to be boastful, but instead to emphasize that we take safety seriously in our company. In my position as Supervisor of Safety, it is my responsibility to ensure that we are complying with the laws and regulations which set safety standards for our employees. It is my job to find ways to implicate practices and attitudes in our employees which promote their safety while in the work place. I cannot overemphasize what I just said. Safety in coal mining is no longer a matter of telling a miner what to do or to refrain from doing. The success that we have achieved in recent years is directly attributable to continuous process of educating our employees to the risks inherent in our work place, whether on the surface or underground. Involving them in the implementation of practices designed to minimize those risks and promoting conduct designed to avoid injury. It is because of our demonstrated record of success that I am highly concerned about the proposed regulation. Although I do not believe that it is MSHA's intent to increase the likelihood of hearing impairment in our mines, I believe this will be the inevitable outcome of this rule because the rule as proposed will not recognize hearing protection devices as a suitable means of reducing noise exposure. MSHA proposes to eliminate the single most effective means we now have to protect our employees' auditory function. It is also the tool which is most flexible and easily utilized by our employees. The proposed rule suffers from two fundamental flaws. First, MSHA has overstated the risk to miners' auditory function associated with a mine work place. Second, our experience and data demonstrate the efficacy of the current regulation, whether the regulation's judged by the efficiency of the use of the hearing protection or by the cost effectiveness of the devices. I would like to illustrate these points by comparing the MSHA analysis found in the preamble to the regulation with our work experiences at Illinois. In the preamble discussion found on pages 66373 and 66374, MSHA reports that the risk of material hearing loss of twenty-five dBA for workers exposed to ninety dBA of noise varies from as low as twenty-one percent to as high as 59.7 percent. In this document analyzing the proposed rule, MSHA cites a study which reports a fourteen percent of miner, aged forty or younger, employed after the implementation of the current standard, have experienced a material hearing loss. MSHA uses this study to support it's conclusion that the current standard has not met the objective to reduce hearing loss. The problem is that this conclusion may well be incorrect. In 1972, NIOSH performed a risk assessment which concluded that workers exposed to ninety dBA had a twenty-nine percent risk of a material hearing loss. That was based on testing at three different frequencies, one thousand, two thousand, and three thousand hertz. MSHA has now reached a conclusion of hearing loss in young miners based upon different frequencies, two thousand, three thousand, and four thousand hertz. My purpose in raising this is not to determine which test more accurately detects hearing impairment, it is to state the obvious question that MSHA has changed the standard of measurement in justifying the new rule. And I'll depart from my written text here for just a minute. Listening to what Dr. Rinks and Dr. Clark had to say, this fourteen percent, if I understood their testimony correctly, where on half of that percentage may well be due to something that was not noise induced, and then on the half percent that would be noise induced on re-testing, there may be another half that factor out with re-testing. This fourteen percent may well be something more like 14.5 percent of that. But that's just based on what I've heard here today. Continuing, moreover, it's conclusions depart radically from the results that we have found at Arch of Illinois. After MSHA proposed it's new rule, Arch of Illinois conducted an audiometric survey of it's underground Conant Mine. The average age of our sample population was forty-seven years. Our employee population should be regarded as a reasonable sample of the miners in our state. Most came to Conant Mine when it was opened in 1991 with experience in other underground coal mines. We have always required the use of personal hearing protection in areas of the mine that have high noise levels. To avoid the potential of selecting our sample, we opened the testing up for everyone who works in our mine. We conducted the testing on shift with a fourteen hour quiet time preceding the test as proposed in the rule making. The results were dramatic. Of the total population tested, only one individual was found to have incurred a material hearing impairment in his hearing while working the Conant Mine. That individual was sixty years old. He represents only 1.35 percent of the population tested and represents only .66 percent of the total work force at the mine. Whether one chooses to use the 1972 risk standard developed by NIOSH, or the most recent risks predicted the MSHA, our results demonstrate a far lower loss of hearing. We can identify nothing other than our policy of using personal hearing protection and the ready acceptance of that policy by our employees to explain the difference in our results from those predicted by MSHA. I wish to return to my second point. The reason why personal hearing protection has worked well in our operations is because it is a tool that is easily utilized both by management and by our employees. Hearing protection is relatively inexpensive and consequently few operators will resist purchasing devices for employees because of the cost. This is more important than you may realize, because our business is fiercely competitive. The price of coal has declined in real terms for more than a decade. Any rule that may be adopted must recognize that the domestic coal industry spans an enormous spectrum of firms. Some of them are large, technology sophisticated, and profitable by current standards. Others are very small, undercapitalized, and truly, from an accounting perspective, may show very little, if any, profitability. It is important that MSHA maintain a rule which is of high likelihood of being implemented and accepted at all levels of the industry. Moreover, because personal hearing protection is so widely accepted, manufacturers have incentive to manufacture devices which are lighter, more comfortable to use, and thus find greater acceptability by the individual miners. Please do not overlook the value of having a device which is already accepted by the work force in our industry. As managers, we know that our policies have the greatest likelihood of success when our employees buy into that program. Our employees do not need long, statistical presentations to understand the value of wearing hearing production. It is common sense to them. Moreover, it supports our philosophy that safety is the responsibility of everyone who works in our mines. It is not the responsibility which falls exclusively on the company. Let me restate that. It's the responsibility of the miners, the employers, working together as a team. It is our conclusion that the existing MSHA rule on occupational noise exposure, found in 30 C.F.R. parts 70 and 71, adequately protects miners from hearing loss. We further support the use of the hearing protection devices as the best, most economical, and desirable method available to provide the protection to our employees. No other device, system, or technology of which we are aware begins to approach the margin of protection afforded by the current types of protective devices now available. For this reason, we ask that MSHA abandon it's proposed rule. If MSHA does not elect to do so, we suggest that the current proposed text be replaced with a rule now used by the Occupational Safety and Health Administration. A key element of the current OSHA regulation is it's acknowledgement that personal hearing protection is an important and necessary means to provide adequate protection to a person who works in persistently or intermittently high levels of noise. Furthermore, the adoption of the current OSHA regulation would allow the mining industry to utilize existing audiometric testing services that are now available. This will reduce the burden associated with the implementation of the new rule. At all other respects, we fully support the comments and positions submitted today by the National Mining Association, and I thank you for the opportunity to comment on the proposed rule. MR. THAXTON: Mr. Blaylock, a question. MR. BLAYLOCK: Yes. MR. THAXTON: Can you give us an idea of the exposures, noise exposures, that you're finding in your operation that you did the testing on? MR. BLAYLOCK: On average, my continuous miners for the last three years have been something under ninety-one decibels, about 90.7. They are Joyce 12C and 12's, the latest configuration of remote control. My roof bolters are Simmons Rand and Norris, and they've been running about 89.9. And my coal haulers are Simmons Rand, and they've been running eighty-seven. So the roof bolters and the miners are really the high exposure areas. MR. THAXTON: But even at that, they're extremely -- they're fairly close to the current PEL? MR. BLAYLOCK: Yes. Yes, they are. But we've got a fairly consistent seam of coal that we're mining into and there are times when we'll get angulations of say the grey roof shale coming down in and when we get the shale or, in some of our operations, if we get sandstone angulations, then the noise levels are going to go up considerably. So hearing protection is really efficient at that time. MR. THAXTON: Have you then, in your analysis, have you looked at the fact that the people that you're testing have not been exposed to high noise levels from the readings that you're giving us? MR. BLAYLOCK: Well, I gave you the average. There are a lot higher noise levels than that on a day to day basis, from time to time. The average is like, you know, ninety-four to ninety-six sometimes on the miners. It's all a function of where the mining slack hold we're at. MR. THAXTON: So are there surveys that you've reported to MSHA, six month surveys, that exceed ninety that you've had to go back and do supplemental surveys on them? MR. BLAYLOCK: We've complied with all the regulations on MSHA, is the answer. MR. THAXTON: But have you had to turn in surveys for miners exceeding ninety dB that you've had to submit supplemental surveys for? MR. BLAYLOCK: No, because of the dosimeter factor, they've come in under ninety. MR. THAXTON: The dosimeter factor? MR. BLAYLOCK: The dosimeter factor on that. I don't quite understand the question, I'm sorry. MR. THAXTON: The supplemental surveys, when you get a sample survey in coal that exceeds ninety dB, someone is exposed to more than ninety dB -- MR. BLAYLOCK: Or a dose of one hundred and thirty-two percent. MR. THAXTON: No. In coal, if you have an exposure greater than ninety dB, you're required to collect a supplemental survey. If the supplemental exceeds one hundred and thirty-two percent, it would show non-compliance. MR. BLAYLOCK: I'd have to check back with the operation on that, on that part of it. MR. THAXTON: Would you be willing to submit any data which relates to the exposures that you found in your mine in conjunction with the same people that went through this test, this audiometric test? MR. BLAYLOCK: I can do it by identifying -- without identifying the miner, and that will be part of the data that is submitted to the NMA. When you get the NMA data on that, you'll have that in it. MR. THAXTON: Okay, thank you. MR. VOLOSKI: I'd like to ask you a couple questions. You started doing audiometric testing in 1991? MR. BLAYLOCK: Yes, when the mine opened. MR. VOLOSKI: Okay. In here, on page two, you say, "We conducted the testing on shift with a fourteen hour quiet period preceding the test, as proposed in the rule making." MR. BLAYLOCK: Right. MR. VOLOSKI: Was that fourteen hour quiet period with or without hearing protectors? MR. BLAYLOCK: Without. What we did was we scheduled -- we scheduled the guys to be tested at the start of their shift. We held them up at the start of their shifts and so they had a full sixteen hour period from the last work shift and then we tested them before they went underground. MR. VOLOSKI: Okay, thank you. MR. BLAYLOCK: All right. (Pause.) MR. CUSTER: Mr. Blaylock. MR. BLAYLOCK: Yes? MR. CUSTER: I have two questions. Number one, do you use engineering controls of any kind for noise at your operation? MR. BLAYLOCK: Back to that question, like when we spec out mining, we ask Joyce to include whatever latest technology they have available on mining, like cavities and sandfill. But above and beyond what the manufacturer can provide to us. MR. CUSTER: Another question then is when you were quoting the noise levels of like ninety-one and eighty-nine decibels -- MR. BLAYLOCK: Those are averages. MR. CUSTER: -- as averages, are those actual noise level determinations or are those the values that you determined after the application of NRR values -- MR. BLAYLOCK: Prior. MR. CUSTER: -- afforded by the hearing protection? MR. BLAYLOCK: Prior. That's the actual time weighted average on the dosimeter taken -- the TWA overall the different things, and that's just the average is my understanding of that. MR. THAXTON: I have one other question, I'm sorry, I overlooked it. In your study of your underground mine, you said that you conducted audiometric testing and your review of that came up with only one person that has a hearing loss as it's defined under the current -- MR. BLAYLOCK: Twenty-five dBA. MR. THAXTON: Yes, but you also had in there that it was well employed at this particular mine. MR. BLAYLOCK: That's correct, because we had to use the pre-employment data when we hired those people in. That's what we had as basis to a baseline. MR. THAXTON: So you're comparing their amount of hearing loss with what they came in, compared to what they came in at. MR. BLAYLOCK: Right. MR. THAXTON: When they came to work in '91, you established as your baseline -- MR. BLAYLOCK: We did not use audiometric to zero to establish our STS, no. MR. THAXTON: Okay. MR. BLAYLOCK: We used the baseline on the pre-employment check. MR. THAXTON: Okay, so these people only had essentially five years of exposure at your mine. MR. BLAYLOCK: Five to six years of exposure with hearing protection. The whole purpose of the test is we analyzed it to see how well hearing protection was done during a normal period of time where we could say with certainty that we knew what they had when they came and we know what they've got now. MR. THAXTON: Okay, thank you. MR. CUSTER: Thank you. The next scheduled speaker is Ken Vorpahl from Unimin representing National Industrial Sand Association. (Pause.) MR. VORPAHL: Thank you very much. We'll be brief, really. My name is Ken Vorpahl and I'm General Manager for safety and health at Unimin Corporation and I'd like to -- MR. CUSTER: Excuse me, sir. Would you spell your name for the record? MR. VORPAHL: V-O-R-P-A-H-L. And I'd like to comment on the proposed occupational noise exposure on behalf of the National Industrial Sand Association, or NISA. The National Industrial Sand Association appreciates the opportunity to comment on the proposed rule for health standards for occupational noise exposure. NISA member companies support MSHA's efforts to establishing a form noise standard for the mining industry and we believe that uniformity and consistency of rule should extend throughout the department's regulatory agencies. Specifically, NISA, in consort with many other mining operators, favors the use of hearing protectors when feasible administrative or engineering controls fail to reduce sound levels within the PEL. We favor the MSHA recommended five dBA exchange rate which is consistent with OSHA. We favor the performance oriented PEL of ninety dBA and we favor the use of hearing protectors as an alternate to fourteen hours without work place noise exposure prior to having an audiogram. And finally, we favor the record keeping and reporting system required by the OSHA rule, which is especially meaningful to those companies having operations under both MSHA and OSHA. NISA member companies, like most mining companies, frequently are saddled with old and rugged machinery that is noisy and controlling noise emissions from this equipment is not always feasible or practical. And as this equipment wears out and/or is replaced with equipment where noise reduction has been incorporated during design, noise levels within the industry will decrease. In the interim, the use of hearing protectors should be recognized as an alternate means of protection. The use of hearing protectors, however, means that they will be properly selected, fitted, and worn consistently with an effective hearing conservation program. The approach used by MSHA to reduce occupational noise induced hearing loss through the use of administrative and engineering hearing protective controls coupled with a solid hearing conservation program is a sound approach. The recommended five exchange rate and the ninety dBA PEL, in addition to the above have reduced hearing loss throughout the OSHA regulated community where industries and companies are serious in their efforts to reduce occupational noise induced hearing loss. The situation within the mining community may be somewhat different due to the predominantly real nature of mining and the activities of many miners in the area of hunting, sawing firewood, and other high noise activities. And was mentioned before, separating non-occupational noise insults from those stemming from employment requires real effort. And here documentation of work place noise exposures is essential. Also essential is the education of employees about hearing loss, the process of prevention, as well as other aspects of the hearing conservation program. MSHA may want to address non-occupational hearing loss and how this loss is to be excluded from occupational losses, which MSHA in the current report, requires reporting under Part 50. The reporting not substantiated by work place dosimeter readings may present a totally false picture of the prevalence of occupationally induced hearing loss. Again, NISA supports the efforts of MSHA to develop a noise standard for the mining industry. NISA also supports many other commenting groups that favor the development of an MSHA noise standard which is consistent with the workable and effective MSHA noise standard. The two main regulators within the Department of Labor should be consistent with each other. The proposed MSHA rule, considering the comments stated, is a workable rule. These comments reflect NISA's position regarding MSHA's proposed rule for occupational noise exposure and we look forward to working with you to finalize the rule applicable to the industrial sand industry, which is protective of the hearing of NISA member company employees, as well as being feasible and practical. Thank you. MR. THAXTON: I have two questions. MR. VORPAHL: Okay. MR. THAXTON: One, you indicated that you have a lot of old equipment and as that equipment gets replaced, the noise levels will improve -- MR. VORPAHL: Right. MR. THAXTON: -- in your member industry. Given that you realize that newer equipment is going to be less noisy, can you recommend a phasing period that could be put into place that would reasonably expect that over a five or maybe ten year period that -- MR. VORPAHL: I don't know the shelf life of a screen, for example, but we just replaced a whole screen house where we did receive a noise citation in one of our plants for screening and we replaced all screens in the entire screen house and reduced the decibel level about eight dB. Now we are well within about eighty-six or eighty-eight on the sound level readings, not even dosimetry. So it sort of goes by the shelf life of the equipment. I don't know of any quiet crushers, for example, but we build control rooms so we protect workers that way and most of our exposures in our industry to high noise levels is, in fact, intermittent as opposed to continuous because we use control rooms and so forth, whenever practical to try to eliminate the noise. But it's based on the life of the equipment more than anything else. We are buying -- we ask the manufacturers now what your noise levels are for your equipment and I think our message is getting across to many manufacturers and now they're sensitive to producing equipment that has low noise levels. AT least in our business. MR. THAXTON: Second question, you indicated that noise dosimetry was a very important part of determining whether a hearing loss was related to occupation or off the job. MR. VORPAHL: Right, and that you do that -- it needs to be in concert with the two. MR. THAXTON: How many of your member companies already conduct monitoring on their own? MR. VORPAHL: Well, we do and we have forty plants. Bob, do you have any idea? MR. BLAYLOCK: Not really, no. MR. VORPAHL: Practically every one of our plants has at least one dosimeter in it. We have a bunch in our office that we ship around. MR. THAXTON: If you could provide us, you know, some idea of the number of your operations that currently do that, it would be helpful. MR. VORPAHL: Okay. MR. VOLOSKI: I have a question for you. On page -- I think it's page three, you have a statement, "In the interim, the use of hearing protectors should be recognized as a means of protection". Are you requesting that the older equipment be grandfathered by that statement? MR. VORPAHL: I'm sort of saying that I agree, as an industrial hygienist, engineering controls first, administrative second, but don't just exclude the use of hearing protectors way down on the bottom. I think they should be -- when used properly, they do provide protection from our experience, and I'd like to see them elevated a little bit in your hierarchy of how they're used, I guess that's what I'm saying. MR. VOLOSKI: Okay, but you're not asking for a grandfathering -- MR. VORPAHL: No. MR. VOLOSKI: -- of the existing equipment? MR. VORPAHL: No. MR. VOLOSKI: Okay. MR. CUSTER: I have a question in regard to the isolation of process in the use of facilities that you related to. And with the resultant reduction, I believe you stated, in noise levels or noise to which -- MR. VORPAHL: No, noise to those people. MR. CUSTER: -- noise to which those people are exposed. MR. VORPAHL: Right. MR. CUSTER: Do you feel that the gain on the noise side was the result of process isolation for the reason of reducing exposure to quartz, for example, and -- (Simultaneous discussion.) MR. VORPAHL: In our business, quartz is our main consideration. MR. CUSTER: Exactly, but -- MR. VORPAHL: But we also -- MR. CUSTER: -- the side benefit is to help you out. MR. VORPAHL: Is to noise, right. Thank you, Mr. Vorpahl. The next speakers on this list are Tom B. Shade and Rick Waugh. MR. SHADE: First of all, my name is Thomas B. Shade -- S-H-A-D-E. I work for Asilica Company. I am a miner and have been a miner for twenty years. I worked in that industry for that twenty years in noise and even with the new controls that have been applied there, administrative controls and personal protective equipment. I've seen -- I was there before we had them and I've been there since they've been enforced and I have more questions on what is MSHA going to do to protect my rights as an employe? I have heard these companies stand up here and say we have spent this much money to protect these employees, but where is my rights on hearing? How do I find out where and how I can go to compensation about hearing loss? They talk about hearing loss is sometimes proposed at home, then you have a hearing loss after you get to work. How do you know you have a hearing loss at home? I've never had a test at home? Where is the testing being done? I see it being done at the plant, but I sent in -- the plant, when we have our test, it comes down in a mobile trailer, four guys in the same room, kicking the table, hanging the hearing equipment up. I hear all those noises at the same time the testing is going on. I hear trucks going by on the highway. We used to have it set up where we did it at the hospital. It was nice and quiet. We have gotten away from that standard to doing it back on site. I've come to work -- I've worked four hours before I even go and get my test. Not all of the things that have been said that I've heard today are true statements. The companies want to make a good policy and they have a lot of good policies, but they don't follow through completely. I've worked with a lot of guys that had -- one guy in my shop whose already got a hearing loss and he didn't have it when I started working there. But I have nobody ever come down and said let's take you back up there and run another test and find out whether it's work-related or home-related. Where's our rights come in here at? Where's the workers' rights come in? Things aren't being done to justify the workers' rights in the work place. I'd like to see more things put up, more adequate training, the right appropriate training. We used to have an eight hour MSHA safety course. It went down to one hour a month safety training course done by the company and it doesn't cover near as much as the eight hour course did. I get twelve hours, which comes out of your regulations, but eight hours that I was getting told me more of what my rights were under everything, noise, dust, the operation, what is safe, and what is not safe. There ought to be some tests done. I believe the eighty-five decibels could be the right way to go. But whether it's eighty-five or ninety, we need more information coming down into the work place from the companies and from MSHA themselves on what is the noise level. When should the hearing protection be worn. Just a sign being put up on the building saying this is a noise area, hearing protection must be worn is fine, but as a mechanic at my plant, I don't work in that noisy area. But usually when I go over, I see the sign and sometimes I ignore it and other times I don't. But I go in there. I've seen tours come through. They put their noise protection in, go in, and when you ask something, you've got to take it off. It isn't any good once you remove it. You're still getting that loud noise. There's got to be more guidelines and more protection for the people in the work place. There's got to be. And I wish you'd take that under consideration. That's all I have to say. MR. CUSTER: Thank you, Mr. Shade. MR. SHADE: One other thing, I know it's been more of a statement than it has been a speech here, but to put in respective what I'm talking about, we work for companies who need to get the product out. We know it and we want to work with them. Sometimes things are looked over, sometimes they're not. But I see things looked over in the work place that should not be. And it really hurts my pride as a worker to believe that MSHA is out there for me and we come down here and see four people out in the main lobby working unsafely. That is terrible. Thank you. (Applause.) MR. VOLOSKI: Sir, you said you've got hearing test at work and they never gave you the results of those hearing tests? MR. SHADE: They show what they did, and I just had mine last week, a two year physical set up by the company every two years. The man took it, brought it in and showed it to me, and told me that I have a slight hearing loss, which I had two years before, and it has seemed to have dropped. But I have no other information, that information is -- where ever it goes, it goes. I do not know what the decibel points are in the loud areas. I have a sign that says to wear your hearing protection, but what is the decibel level supposed to be? I have nothing on my board, my bulletin boards, or nothing that tells my people, you know, this is a high noise area. This is one hundred and fifteen, not eighty-eight or eighty-nine. MR. CUSTER: I notice that you're a member of Teamster's Union -- MR. SHADE: Yes. MR. CUSTER: -- so I assume that you do not work for a coal company. MR. SHADE: No, sir. MR. CUSTER: And I would like to know if the company that you work for conducts any type of personal monitoring where you wear a noise dosimeter, for example. MR. SHADE: We use dosimeters. I haven't personally ever worn a noise dosimeters, but they do run noise testing at that plant. Now what the results are, we don't know. MR. CUSTER: Thank you, Mr. Shade. MR. SHADE: Thank you very much. MR. CUSTER: The next speaker, Harry Tuggle, United Steel Workers. MR. TUGGLE: Okay, first of all, my name is Harry Tuggle, Safety Specialist with the United Steel Workers of the United States of America, Health, Safety and Environment Department out of Pittsburgh, PA and certainly appreciate the opportunity to be here to speak on this issue. It's been very interesting today and I appreciate the panel's tenacity to hang in here throughout the day on this and probably a lot of the other hearings. But I'd like to say that as soon as the scientific community gets done bashing each other over the head on this issue, that that apparently is not going to occur and they're apparently going to continue, no matter what kind of rule comes out, to be at each other's throat in contested citations and so on before the judges on this. So the basic bottom line is, out of all of this, is, I think, that miners can certainly appreciate their faith in the agency and that there will be a permittable rule come about out of this issue and right along the lines of the format that the agency has already started here. You've had a number of discussions on the age correction value and in the Steel Workers' opinion, that age correction value in mining has no place in the standards. If we was talking about situations of various given industry or operations where you can almost bet that there would never be an excursion beyond eighty-five, ninety decibels in that given area, then yes, maybe the age factor would come in. But mining, as well all know, is highly excessive noise area. There is impairment there from on the job. It doesn't matter if a guy runs his lawn mower without the muffler, he shoots targets once in a while, or goes hunting once in a while, the hearing impairments coming out of mining is coming off that job. I guess one of the two items within that given area that really gives us a problem is where the standard relates, where the provision relates, that in determining whether an STS or reportable hearing loss has occurred, allowance may be made for the contribution of aging, may be made. Secondly, over in another area referring to the miner, the differences calculated represent that a portion of the change in hearing that may be due to aging. These terms of "may" simply don't appear appropriate within the standards, what miners and mine operators have come to know as mandatory standards. I think that if aging is going to be a factor as far as miners are concerned, that within each various state and there's comp laws that range from one spectrum to the other in every state you go in, if the company wants to argue that fact, if there's a comp hearing on that issue, then they can bring it forward under their state laws or whatever. But it doesn't have to be a benefit and built into the system against the miner and within the regulations itself. On proposed Section 62.120(b)(1), on training, here is an area that I think the direction is proper as far as the agency has presented it and there's references in the preamble about no cost or loss of wages regarding the training and so forth referred to in the preamble. But the miners are not going to see that preamble. Thousands of miners are not going to see that preamble. Until it's in the standard themselves, they carry around -- a number of them carry around -- it's still our position that that provision should be revised to the extent that an operator shall provide the miner and then we're adding in with, on the job training, with on the job, during normal working hours, in a no cost or loss of wages to the miner. We don't see -- if this is the intent, we don't see no problem with that directness going into the language itself. On the hearing conservation program, 62.120(b)(2), and again, I think there's a need to make the provision clear here that when enrolled in the miner hearing -- in the conservation program under the requirements of 62.140 and 190, that they go on and relate it if all testing relating to such enrollment, whether provided on-site or off-site, then it be provided during normal working hours with no loss of wages or cost to the miners, including meals, mileage, loading, if incurred, whatever. Miners understand that. And this here is -- I think we've got to look more to directing the standard as is very appreciated by the agency effort early on, within the preamble, that you want to develop these standards along the lines of understandability to the miners and mine operators. And with that type of clarity on things is things that they begin to understand. On the issue of 62.120(c)(1), administrative controls. If, in fact, everything else has been tried, engineering controls, feasibility studies and controls, hearing protection or whatever and the rule calls for certain levels not to be exceeded, and the individual must -- the only other way for the operator to address this is to move the miner around by administrative controls, take him out and let the other guy suffer a little while, so be it. Maybe that is the way it has to be handled. The job's got to keep running. By the same token, if it comes down to that, the administrative controls there, the miners' pay and protection must be upheld. If they're taking him off of a $12.00, $14.00, or $15.00 production hour job, they can very easily under this administrative control procedure that's being handed to them, tell the individual that you're going to push a broom today. You know, $7.00 an hour or whatever. Or this week, or whatever length of time that they want to slap on it. And the agency, the mine, the miner operators are going to wind up with a lot of problems in this area with discrimination complaints if there's not some protection here, because it's going to be -- we feel it's really going to be abused. Conversely, in that same area, if you're bringing in an individual and he's coming into a higher rated job and you have to put him into a noise area, but that's only a $7.00 an hour job, he works for that same individual, so in this shuffling measure that the operator is attempting compliance on, then the shuffling that he does, the miner is not going to suffer on this on the basis of wages. Just to give an overview of steel workers, to give an overview of steel worker opinion here, on the proposed Section 62.120 itself, where it lays out the actual level eighty-five dBA, the ninety PEL, the five dBA exchange rate, and so forth, in -- I really don't in all honesty see the agency moving back to the eighty-five even though the scientific information supposedly is there. NIOSH recommends it and somewhere down the line there's a lot of pressure from the industry to stay at that level and so forth. Steel workers, and as many of you might know me from the panel, I'm a negotiator, number one, and with the ninety dBA, if all else fails, we would simply like the agency to take a clear close look at the two dBA error rate that's used because this puts the individual up to a hundred and thirty-two percent exposure, should have been pulled out of there in six hours versus eight hours. Just as easily, while we're tossing these numbers around, if the scientific evidence is there, there's a very possibility that the PEL could be eighty-eight and in going on ahead and using the two dBA, the ninety -- it's cut off at ninety before citation issues come about and so forth. If the five dBA exchange rate is maintained, and you're using eighty-eight as the PEL, eighty-three would become the actual level. If you used a three, eighty-five would remain the action level. Be that as it may, the initiative -- the initiation level of eighty, you know, would stay in place, but we simply wanted to say this to the agency simply for some consideration. Serious consideration, let's put it like that. Also, on 62.120(f), can't let it go by without raising the issue again here, but on an operator exposure evaluation and employee notification, in the Steel Workers' opinion, this is a very liberal provision on monitoring program for the operator. They can be all over the board. I do it my way, and I'm going to do it this way in copper, and I'm going to do it that way in coal, and I'm going to do it this way in iron ore, and it's all across the board. There's got to be some continuity and some rationale to it when they show you the program and so forth that's understandable that it will be all over the board and inspectors will be having to deal with those. Without a request for a total rewrite and insisting that there be a bench mark monitoring program that every mine operators -- you're going to have to follow it and you're going to have to do it A through Z, and this is it, short of that rewrite and short of anything else in that area, we simply feel that when they do have a monitoring program that also clearly for the miner, and possibly the mine operator, that when they establish their system for monitoring which is to effectively evaluate each miner's noise exposure, it's under quote, which is added to your current proposal, under normal operating conditions to which they are exposed. You may not realize how specific that one line would be as far as not being abused in a lot of areas. Also, under that same provision where you're stating that you'll give notification to a miner about his overexposure exceeding the action level, it's also being requested that, and even though it's referred to and we can get to it or come about it, we that -- being miners' representatives in the given mines from the given international unions and so forth, we can eventually get the information. But I think it would be easy enough if it's purely stated that that information would be presented to the miner and the miners' representative themselves, if any in an operation, and in then that miner has someone to talk to, or vice versa, the miner's rep, if he has a question about the given situation he can go back and talk to an individual about what's going on here. And within that record keeping retention we still believe that that six months is too short a time. There is a basis for this information to fall through the cracks that the inspector may or may not ever see, and we don't think that the twelve month period for the holding of records, which we already know if the miner's there for thirty years, the operator, if they're in operation for sixty years, that record will still be laying there. If not there, then in the corporate office or somewhere. So asking for twelve months out of that for the availability of that record for the secretary and the miner, and the miners' representative we don't believe is excessive. On the issue of training under 62.130, to simply leave it to -- on the basis of well, if you can fit it under Part 48, you know, do so and if you get it approved by your district manager, all well and good or whatever. A number of us, including the panel and many out here in the audience, and those that have left realize there really isn't any room under Part 48 for this. And under Part -- demanding that it be under Part 48, or allowing it to be under Part 48, many the sand, gravel, stone, other than those that are very credible, in our opinion, operators, will simply let training along with noise and the rest of it continue to slide by as they have since I think 1981 or '82 on training issues under Part 48 at all. So therefore, the Steel Workers are suggesting that subparagraph (b) be included -- that language be added to that paragraph to where it would read that the type of training required by this part, and that's notwithstanding 30 C.F.R. Part 48, except in the application of new miners training, that they would -- they shouldn't be giving this for -- number one, for new miners training, but outside of that, on an annual refresher, training shall be provided no less than one hour and the initial noise training no less than thirty minutes given at an annual retraining of a miner are those as a result of a detection of a STS. In our opinion, it's really the only way that training in regard to information on hearing is that it's going to be coming -- people is going to have to be aware that the standard is changed, certain things is changed, and there's going to have to be some initial training and miners should be part and parcel of that, and to simply to shuffle it under Part 48 it's going to become lost. It should be over and above Part 48, except for new miners training. And again, within that same provisional records relating to that should be twelve months, which we don't believe should be too much to ask versus six months. Provision or proposed Section 62.150 on audiometric test procedures, and that's paragraph D and that's again in regard to the records. We'd like to see twelve months versus six months. Small mines entity, to boil our position down to a brief statement on this that we simply feel that the agency should not develop a small mine entity numbers simply for the purposes of the final rule here. That each and every mines, because we see a lot of flexibility here and whether it's small, medium, or large, we see a flexibility where each one of those types of mines could comply. On the issue of transfer of miners under preamble discussion at page 66359, and here until the close of the record or whatever, the Steel Workers are going to continue to press for this particular issue. We don't agree with the agency that it's too big or too complex to administer and so forth. We do believe that if a miner suffers ten dB or more on STS hearing and there should be immediate evaluation in their area of work. As to that suffrage of hearing loss, if it's -- shows it's permanent, or whatever. And when it's shown as permanent that they look at that area and based on the type of area they work in, if that causes a hazard to that miner to remain working in that area because of hazardous -- or the lack of hearing and hazardous surrounding conditions, whether it's rooftop or whatever the situation might be, that then the miner or the mine operator, you know, would take up action for transfer matters and transfer rights and related pay and everything else that goes along with 101(a)(7) of the Act. If there's a dispute on that, we simply would contend that the miner then -- if the operator says you know, I don't believe you, is it that hazardous in here, we don't believe that that hearing loss is to that degree, or whatever the situation might be, when it comes about the situation there, we think the miners should have a right to file the 105(c) complaint on that basis and pursue it in that avenue of a right to transfer and a right to retain the pay. With that, I'm going to cut the rest short. I'd like to thank the agency again for it's tenacity, again, in hanging in here to the end of today's -- not only this one, but the other hearings and so forth, and we appreciate and we the miners and the other internationals await to look at a very formidable rule. MR. CUSTER: Thank you, Mr. Tuggle. MR. TUGGLE: Aw, come on, somebody ask something. (Laughter.) MR. TUGGLE: Thank you. MR. CUSTER: The next scheduled speaker is Mike Sprinker, International Chemicals representative. MR. SPRINKER: Good afternoon. I'm Michael Sprinker, the Health and Safety Director of the International Chemical Workers Union Council of the United Food and Commercial Workers Union, who we recently merged with. I'm also a certified industrial hygienist and in addition to working for the Chemical Workers have spent something like eight or nine years in industrial hygiene in the enforcement section of one of the state OSHA plans and did a lot of noise measurements. The International Chemical Workers Council on behalf of it's five thousand plus miners in metal, non-metal sector welcomes this opportunity to testify on this very important initiative. We believe the changes in MSHA's noise standard are long overdue, and we also believe MSHA through this role could help ensure the long term health and safety of our miners, as well as that of the other miners throughout the United States. We also seek to have a reasonable and adequately protective standard which relies on current knowledge in the areas of noise hazards, protection, and control. And while we support much of the proposed standard, we do strongly believe that there are areas that need improvement in order to meet the goals and requirements of the Mine Safety Act. We believe the real issue which concerns miners and operations find federal rules difficult to follow, but truly desire to make work places safer and healthier is not the length of the rule. I know we've all heard a lot about how lengthy federal rules are, but how understandable the rule is. In other words, the Chemical Workers strongly believe that MSHA and other agencies should not mistake brevity for comprehensibility. This can leave to leaving out issues of major importance and we ask that MSHA work to ensure that rules are easily understandable, which the agency appears to be trying to do here, but that the rules also include any and all necessary items to ensure the best protection possible for miners. I'm going to comment on a number of different areas here. The first limitations on noise exposure, Section 62.120. While we are supportive -- a few typos in here - of MSHA's proposal to tie the exposure limit to the length of the shift, we strongly believe that the agency should follow the recommendations of ACGIH, NIOSH, several branches of the U.S. military, and ISO standards and adopt the three decibel exchange rate, and as a member of those groups, an eighty-five decibel PEL for engineering and administrative controls. Even at this level, MSHA itself estimates three and one hundred miners are still estimated to be at risk of hearing loss during the course of a working life. However, this is much better than eighteen out of one hundred miners that are estimated to be at risk at ninety decibels. As my colleagues from the Mine Workers, and the Steel Workers, have noted here, technology can be and is driven by regulation. Examples exist in both MSHA and OSHA regulations, such as noise, vinachloride, lead, and so on. In fact a recent study showed that out of eight OSHA final rules, the economic costs for compliance were significantly overestimated in seven cases. So MSHA must show us that economic costs of controls of engineering and administrative controls at eighty-five decibels TWA are not -- are truly not feasible. And we haven't seen evidence of this in the rule. In addition, MSHA notes in the proposed rule that a significant loss of hearing can make miners more vulnerable to injuries from conditions out of those miners' controls, which is roof and ground falls. Thus there is a critical need for engineering controls as a first means of control. We do believe that the scientific evidence does support the use of the eighty dB threshold for noise measurement and we're quite happy to see that in here. We are concerned, however, that the use of dual protection may provide a false sense of security, especially given the data found by MSHA that indicates the very low level of protection provided by some over-ear protectors. The protection was found to range from somewhere around six decibels to a negative one decibel. In other words, some protectors might actually increase noise dose to the worker. As far as operator exposure evaluation, we feel this section is totally inadequate and would prove very difficult to enforce. Even the OSHA rules for exposure monitoring would be an improvement over the rule proposed here. An adequate rule would specify which miners must be modified and actually what I mean, which miners, not specifically, but in general, guidance as to how to monitor. You know, at least the basis for such selection. Periodic monitoring must be specified or some operators will perform no monitoring. And if you don't believe this, a review of recent cases before the Review Commission and before it's judges would indicate that some operators believe that the dose monitoring standard in metal, non-metal does not require them to ever monitor exposures on their own. We would prefer exposure evaluation at least once a year, even if no changes in noise levels were thought to have occurred. I no of no one who has calibrated hearing which can detect the hearing change in sound levels from one year to the next in the case where the change occurred gradually. Monitoring should be repeated or exposures should be re-evaluated. And again, re-evaluation of exposure does not necessarily have to mean full shift monitoring, but there has got to be a real basis for evaluating exposure. It should be re-evaluated when equipment changes, when work schedules or duties change, when controls are observed to be failing, when new noise sources are introduced, and so on. And of course, there's some logic to that too, if you're bringing in things that are much quieter or people or working shorter shifts and so on, then you may have the understanding that it's probably that evaluating exposures have dropped. We believe that MSHA can adopt an exposure evaluation rule which will provide guidance to operators, miners, and their representatives and which is enforceable. Without such rules, unscrupulous operators will shirk their duties and place miners at increased risk. Records regarding calibration must be required as well as the more important issue, that calibration procedures must be followed. A requirement should also be included that operators ensure that all controls are evaluated at least yearly for effectiveness, as well as to determine if new feasible controls have been developed and are available. Miners and their representatives must be given the right of access to all monitoring results and to see what monitoring is being done, observe that monitoring. They must also be given the right to speak to those performing the monitoring without fear of discrimination. In addition, administration procedures must not be changed without the evaluation of the effect of those changes on exposures and without proper notice to miners and their representatives. With Section 62.125 hearing protectors, the selection of hearing protectors must be for more than one type of muff and more than one type of plug. All ears are not the same. The hearing protector more comfortable to the miner is more likely to be used. Both common sense and experience show us that. But as an aside here, I could probably very easily pick out the muff and if I wanted my miners to use muffs, I'm sure I could pick out plugs or inserts which no one would ever select. MSHA also needs to determine how it will allow miners and operators to determine which protectors to select. Many often think that the protector with the noise reduction rating of NRR-31 is a thirty-one decibel reduction. This isn't true. OSHA gives actually several types of reduction at different times, and generally employers pick the so-called best one, naturally. NRR minus seven decibels, which is actually tied to the weighted period used in the evaluation. More realistic is the NRR minus seven decibels and that whole number, divided by two, which may, by OSHA's own research, still overestimate the protectiveness of the devices. Without any requirement, miners will be put at risk by operators who unthinkingly do what is the simplest. As far as the training, Section 62.130, we agree that training shouldn't be part of the Part 48 refresher training as already too much is required in that training for the time available. Miners, their representatives, and operators -- and note here, I do say "operators" -- need to be trained in all of the areas here listed in the rule, the proposed rule, but also in other areas, which include the function of engineering controls, the basics of noise control technology, and techniques, and how to determine the failure of controls. This doesn't require making those trained in acoustical engineers, but everyone needs to understand the basics behind noise control. The rules must also specify that the training must be effective, that is, comprehensible to those trained. The true indication of training is not having a name on a list, which, you know, has it's own importance, but whether or not the trainee can understand and use the information when needed. We've lumped our comments from 62.140 to 62.180 into one sort of massive group. Next, I'd like to sort of preface this section of my comments with a story about an audiometric test provider in the Northwest United States. It's actually roughly six to eight years ago. This provider was alleged to have "guaranteed" -- which it's not, in the contractual sense -- that it could reduce the number of standard threshold shifts in the work place. This wasn't done through better evaluations, better training, better use of engineering controls, and so on, but allegedly through the manipulation of audiometric exams. A good number of employers were duped by this provider and some may very well have cooperated with the provider by ignoring the obvious. Among the charges leveled against this provider were that the physician or audiologist reviewed the records never did so. Tracings were not kept. Calibration records were not kept or were falsified. Daily functional tests weren't conducted, baselines were revised regularly, et cetera, et cetera, et cetera. OREG and OSHA, through the courts and the State Attorney General's office sought and received an injunction against the provider. This was only possible after lengthy investigation followed by subpoena of records and employees. The more common problem with other providers that sometimes occurred with in-house audiometric folks was the revision of baselines, which here I believe MSHA calls supplemental baselines. Following any annual audiometric exam that showed an increase in hearing loss, this was a wonderful way to document hearing loss without addressing the causes. And in that case, some of that was done through ignorance and some of it was done through, again, some unscrupulous folks. And what's the lesson for MSHA in that? There are audiometric test providers who will do anything for money, including sacrificing the hearing of miners. What can be done to help prevent this? We've got several suggestions here. We believe that MSHA should not, as a part of the rule, rarely if ever could a shift be classified as permanent after only twelve months. Audiologists and others who revise baselines for given workers on a regular basis are suspect, at best. MSHA should retain the right to sanction providers that are determined to be fraudulent and should maintain a list of such providers. This list should be provided on a regular basis for both operators for posting and use. That doesn't mean to use them, but to use them in terms of not to use, and also to miners' representatives. Operators should not be allowed to use such providers. If fraudulent audiometric exams have been provided to miners, the operators should be held responsible for re-testing and notification as well as ensuring that the baseline for the annual test is properly adjusted. But the operation should also ensure that the miners and their representatives are informed of the problem. In this case, it may be because, you know, the operator may have to go back against the company that initially provided the fraudulent exams to recoup their losses. We have no problems with that. If employers believe that audiometric exams are questionable, they should have a requirement to report such concerns to MSHA for investigation. And here, we mean investigation of the possibly fraudulent examiners. While these may seem a burden on employers, we believe they are necessary to ensure good testing is provided to miners. We believe this is in the interest of the operators as these or similar requirements are needed to ensure good service for the money they pay. The ICWUC agrees with NIOSH and other commenters that presbycusis should not be used in determining whether a standard threshold shift has occurred. The numbers on the tables are merely a mean difference in hearing levels with age and should not be applied to all exposed workers. To allow presbycusis would ensure that more exposed workers develop "legal" hearing loss needlessly. In addition, some references state that the incidence of presbycusis is higher in white males than in women or African Americans. In fact, one reference is preventing occupational disease and injury by Weeks, Levy, and Wagner. Adopting these reductions in hearing levels would in addition to penalizing individuals would penalize our African American members as a group to an even greater degree. Operators should also know that annual exams should be done during the work shift in order to catch temporary shifts and intervene before they become permanent STS's. This also brings up the concern that the rule should state that the purpose is to allow intervention before shifts do become permanent. And I think in some ways, with the needed length of audiometric exams, people may get the idea that, hey, this is how we're really going to deal with the problem. But, you know, I think it needs to be made clear that you are trying to intervene. As far as Section 62.190, notification results and reporting requirements, we believe that all hearing losses which meet the definition of reportable should be reported without reference or without substraction or without reference to the work-relatedness determination. The operator, you know, in fairness should be allowed to submit the audiologist's or physician's determination for MSHA to consider. This, we believe, would help prevent fraudulent evaluations, protecting both miners and employers. With 62.200, access to records, we believe that upon request by a miner's representative, at the very least, copies of audiometric exams with true personal identifiers removed should be provided to the representative as well as the summary of audiometric results. That is without them having to get a release from the individual worker because you're not getting the identification. This would not limit in any way the right of the miner to have his or her records released upon request to the miner's representative or anyone else he or she chooses. The miners' representatives and the miners should also have access to all exposure monitoring records, records of control measures considered, administrative control methods, and so on. We see no defensible reason to limit the access of miners or their representatives to the records which are needed to protect miners. We also believe that miners' records should be retained for the miners' working lives, plus a significant period of time thereafter. Sort of an aside here, we rarely see employers with any problem in retaining records of discipline for the entire life of the workers on-site so we're not quite sure why noise records and such are so difficult to retain. As far as transfer records, there may be one slight flaw here and it may be covered elsewhere in other MSHA rules. We believe the rules require operators, when they cease business and there is no successor operator, to send all relevant records to the miners who are or were covered under the rule. In addition, notice of transfer of records should be sent to the relevant miner's representative, International Union, MSHA, NIOSH, along with the list of the names and addresses of the miners who were transferred. This might help prevent needed medical records from disappearing off the face of the earth. It may also save the burden of shipping massive amounts of records to several different places, too. Other issues, we believe alternating audiometric exams, follow ups, and so on should be done at the time of regular work shifts to the extent medically indicated if possible, and no miner shall suffer loss of wages or benefits during such training exams, and so on. We also believe, like the Steel Workers, that if it's necessary to transfer a miner to a quieter work area, the miner shall suffer no loss in wages or benefits. Miners must also have the right to file discrimination complaints to the agency if the miner believes he or she was improperly transferred or has suffered any economic loss. As far as this question of the definition of small operators, we believe MSHA should at least retain it's current definition. Five hundred employees to us constitutes a major employer with access to significant economic resources. I think there's also been concern -- I'm not sure if it's all been worked out as far what the law actually meant -- as to whether that's five hundred at any given location or five hundred corporate-wide. If that was the case, most of our mining operations except a very few would end up "being small operators" even though they are major multi-nationals with -- I don't want to say a lock on the market, but a significant, significant share of the market. To conclude, while we believe that MSHA has attempted to draft a rule which could protect miners to a large degree, we do not find it acceptable the risk of eighteen out of one hundred miners suffering hearing loss. While the argument is that hearing protectors will reduce that rate of risk, we believe that MSHA needs to provide evidence that eighty-five decibels with a three decibel exchange rate is not economically feasible. In addition, while our comments, I guess if they were adopted, might cause some consternation in OMB, we don't believe those in the office are at any risk of occupational hearing loss. They should put themselves in our members' shoes before they advocate less protection than is economically feasible. So I'd like to thank you for your attention and your consideration of these. MR. CUSTER: Thank you, Mr. Sprinker. MR. SPRINKER: Oh, one thing that I just happened to see that I scratched a note on was the issue of solvents. I know that MSHA did address that in there, and maybe at this point that the hearing conservation program, the audiometric exams may be one way to help determine potential losses. But I think MSHA may need to consider this when there's more data available in this area. It's very hard to quantify the effects of skin exposure and as well as the effects of airborne exposure, and so on. But I think it is an area where MSHA needs to continue to investigate and consider rule making when the evidence is there. Thank you. MR. CUSTER: Thank you, sir. Our next scheduled speaker is Mr. Klaus Leiders from New England Stone. MR. LEIDERS: Thank you, Mr. Custer, but I consider my little speech as rather unscheduled because I'm not only working for New England Stone, I also -- I'm here on behalf of the National Building Quarry Granite Association and we at this time do not have our official statement ready yet. It's one of the reasons why I was here. And for the background of it, New England Stone, we are not an aggregate company. What we do is we make dimension stone, which is -- you can see this on the governmental buildings in Washington, you can see it everywhere else. We make tiles and what have you. And our industry is regulated by both OSHA and MSHA which means -- MR. CUSTER: Let me just interrupt you and ask you to spell your name for the court reporter. MR. LEIDERS: Oh, of course, I'm sorry, I was just doing something I shouldn't have. My last name is spelled L-E-I-D-E-R-S. It's very simple. Okay, don't forget the line here. I would spare you with all the concerns that we have on the administrative parts of the proposed regulations. I believe that most of the previous speakers have already done an outstanding job on that, especially on the medical part of it. My concern, and this will be the only issue I will focus on, is the technological part of it and that leads straight to the engineering controls. Our industry is by technology and by tradition is probably one of the noisiest, right behind the Navy when you are on an airplane carrier. The reason is understandable, we have only five tools in our industry. That's the air burner, that's the diamond wire saw, the water jet, the drills. Those are all hammer drills, most of them air driven, some of them hydraulic driven, it depends on which supplies you have. And those are loaders. That's all we need. Five tools. Explosions I don't consider this as a tool because that's part of the whole process, and in our industry we do not -- well, we try not to crack the stones so we do not use a lot of explosives in comparison to the aggregate of what a lot of this industry does. So an air burner as it was used to run -- and I'm sure that Mr. Custer knows it -- it used to run around one hundred twenty decibels. By the years, we have been able to reduce that noise to maybe about one hundred and ten, one hundred and eight decibels. But that's where the limit is of this technology. Now you probably have this concerns, say oh, God, this loud technology, why do they use that? It is essential. And that is just the geophysical reason why we have to have it. Granite, it's a plutonic that comes down from way down from Mother Earth, it's under pressure. You cannot just go down there and cut it with a saw. It squeezes shut. And probably lots of people can imagine, but stone can breath. It expands when you release this pressure and then channels get shut. Okay, just this as a very brief background on this mission. We have tried to quiet it down. We are limit of this. If this would, this eighty-five decimal limitation would come into effect, we would lose one of our most essential tools. We have tried to replace this tool with what we call a water-jet. It's nothing but a high pressure, sixty thousand PSI, high pressure application of water to stone and as you know the old saying, constant drip cuts the stone. And that's what we do, but we do it in very short periods rather than thousands of years. And this machine at this time because of the technology also cannot go below one hundred and ten decibels. That's something you need to understand. That's a very high pitched sound. It goes -- it starts right around six thousand kilohertz and goes up to about what the human ear can hear. Another thing is our drilling. We have tried different technologies and all these technologies cannot be reduced below ninety-five decibels at the source. And ninety-five decibels is a bad compromise for the industry because that means that you reduce the performance of the machines to right around fifty percent and I mean, I'm pretty much sure that you understand that this is also very difficult for the industry to work with a fifty percent performance. It's not profitable. However, we are not whining that we can't do this and we can't do that. That's not the reason that I mentioned that. I just want you to understand that we are a very noisy industry, but we do something about it. And that is, we have strict -- actually, I speak for our own company. We have a very strict policy when it comes to hearing protection. A miner works in the underburner and doesn't have earplugs plus a muff on would first be -- look here, for this and this reason, you have to do it. If he doesn't do it the second time, he gets the warning, verbal. And then it's on to disciplinary actions taken. And I do believe that in the proposed regulations are they are you really must -- not should -- must take in consideration that hearing protection is the only way for our industry at this stage -- I'm not talking in ten years -- but for surely it's predictable that within ten years there will be new replacement for the current technology. At this stage, we cannot. The only thing we can do for our workers is giving them hearing protection with earplugs, ear muffs, or whatever is available, and that so far -- that's something that I wanted to address to you tonight, unscheduled. And one correction I need to make, I heard it frequently from the representatives of the unions and I feel that I have to address the panel that the statement that has been made about the roof falls are false in the coal mines, that that is a correction to be made. They are saying that they cannot wear earplugs because they cannot hear the stone fall. It's just the opposite. I've been working in coal mines for fifteen years. I've been in roof falls and I've never been hurt. You know why? I wore the earplugs. At the noise level you have in the coal mines, you cannot hear the sound of the stone coming down unless you have earplugs on for a simple reason. The sound level of the stone coming down sounds -- oh, what's the right word for it? -- the sound itself is like the creaking and cracking in the fireplace. That's all there is. That's all the warning a miner gets. If you have a coal miner and you don't have earplugs on, you cannot hear it. That's a technical fact and I'm a little bit -- as a coal miner -- I'm a little bit embarrassed that the union came up with that lie tonight. And that says an old coal miner. Okay? Thank you for your attention. I can wait if you have any questions. MR. CUSTER: Danke, Klaus. MR. LEIDERS: Hmmm? MR. CUSTER: Danke. MR. LEIDERS: Danke schon. MR. CUSTER: That exhausts the list of speakers who we had either signed up ahead of time or come in later and have gotten on the list. Is there anyone in the audience that wishes to make a statement at this point? We still have one minute to go until the official closing time, but we will stay if anyone wishes to make a statement. Okay. Thank you very much for your participation and attendance today and with that, this hearing is adjourned. (Whereupon, at 5:00 p.m., the hearing was adjourned.) // // // // // // // // // // // // // // // // // // C E R T I F I C A T E CASE NAME: MSHA Public Hearing DATE: May 30, 1997 LOCATION: Washington, D.C. I, Catherine S. Crump, do hereby certify that the foregoing pages represents a true and correct transcription of the events which transpired at the same time and place as set out in the caption, to the best of my ability. __________________________________________ CATHERINE S. CRUMP Certified Court Reporter HERITAGE REPORTING CORPORATION 1220 L Street Washington, D.C. 20005 (202) 628-4888