PUBLIC HEARINGS DETERMINATION OF CONCENTRATION OF RESPIRABLE COAL MINE DUST MSHA AND NIOSH JOINT SINGLE SAMPLE PROPOSED RULE AND MSHA PLAN VERIFICATION RULE Monday, August 7, 2000 Morgantown, West Virginia APPEARANCES: MARVIN NICHOLS, Administrator, Coal Mine Health & Safety LARRY REYNOLDS, Office of the Solicitor RONALD SCHELL, MSHA, Chief, Coal Health Division CAROL JONES, Director, Office of Standards, Regulations and Variances GEORGE NIEWIADOMSKI, Mine Safety and Health Specialist, Coal Mine Safety and Health THOMAS TOMB, Chief, Dust Division, Pittsburgh Safety and Health Technology Center PAUL HEWETT, NIOSH,Industrial Hygienist EILENN KUEMPEL, NIOSH, Senior Physical Scientist JON KOGUT, Mathematical Statistician, Office of Program Policy Evaluation REBECCA ROPER, Senior Health Scientist RON FORD, Economist, Office of Standards, Regulations and Variances RODNEY BROWN, MSHA, Office of Information and Public Affairs P R O C E E D I N G S (8:30 a.m.) MR. NICHOLS: Good morning, my name is Marvin Nichols and I am the Administrator for Coal Mine Safety and Health, and I will be the moderator for today's public hearings. On behalf of Davitt McAteer, the Assistant Secretary for Mine Safety and Health, and Dr. Linda Rosenstock, Director of the National Institute for Occupational Safety and Health, I want to welcome all of you here today. This morning, during the first of the two public hearings we are holding here today, we want to address the MSHA and NIOSH joint single sample proposed rule, which was published in the Federal Register on July the 7th, along with MSHA's Plan Verification rule. After lunch, we intend to convene the second hearing, which will focus on the plan verification rule. However, if you have comments this morning which are relevant to the plan verification proposal, we will include them in that record as well. Because we will be discussing the MSHA/NIOSH joint proposed rule this morning, representatives from NIOSH will serve on our panel. Let me introduce the panel I have up here with me. To my left is Ron Schell, Chief of our Coal Mine Safety and Health Division of Health; on my right is Larry Reynolds from the Office of the Solicitor. And behind us, we have our technical experts from NIOSH, Paul Hewett and Eileen Kuempel; and from MSHA, Carol Jones, the Director of Standards, Regulations and Variances; George Niewiadomski, Mine Safety and Health Specialist, Coal Mine Safety and Health; Thomas Tomb, Chief, Dust Division, Pittsburgh Safety and Health Technology Center; Jon Kogut, Mathematical Statistician, Office of Program Policy and Evaluation; Rebecca Roper, Senior Health Scientist, and Ron Ford, Economist, from the Office of Standards, Regulations, and Variances. And Rodney Brown from MSHA's Office of Information and Public Affairs is also present at this hearing, and Rodney will provide press kits for the media in attendance and will be available to answer any press questions. Rodney is back at the table. The formal rules of evidence do not apply, and the hearing is conducted in an informal manner. Those of you who have notified MSHA in advance will be allowed to make your presentations first. Following these presentations, others who request an opportunity to speak will be allowed up to 20 minutes to do so, and if necessary, we can extend that time to give all interested parties an opportunity to present testimony. I would ask that all the questions regarding these rules be made on the public record and that you refrain from asking the panel members questions when we are not in session, because we want all the discussion on the rule in the session on the record. A verbatim transcript of this hearing is being taken and it will be made available as part of the official record. Please submit any overheads, slides, tapes, and copies of your presentations to me so that these items may be made part of the record. The hearing transcript, along with all of the comments that MSHA has received to date on the proposed rule, will be available for review. If you wish a personal copy of the hearing transcript, you should make your own arrangements with the Court Reporter. We will also accept additional written comments and other appropriate data on the proposed rules from any interested party, including those who have not presented oral statements today. These written comments may be submitted to me during the course of this hearing or sent to the address listed in the hearing notice. All written comments and data submitted to MSHA will be included in the official record. If you wish to present any written statements or information for the record today, please clearly identify them. When you give them to me, I will identify them by title as being submitted for the record. An attendance sheet will also be circulating in the room today so that you may register your presence. To allow for the submission of posthearing comments and data, the record will remain open until September 8, 2000. As you know, we have scheduled two additional public hearings to specifically address the single, full-shift sample proposal. They will be in Prestonsburg, Kentucky, on August the 10th from 8:30 a.m. till 12:00 noon and in Salt Lake City, Utah, on August the 16th from 8:30 until noon. The hearings for the plan verification proposal will follow in the afternoon on the same days and at the same locations. Before we begin, let me give you some background on the proposal we are addressing this morning. This is a joint proposal. In it, the Secretary of Labor and the Secretary of Health and Human Services announce their proposed finding in accordance with the Federal Mine Safety and Health Act of 1977 that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be accurately measured over a single shift. In this proposal, the Secretaries are proposing to rescind a 1972 finding on the accuracy of such single-shift sampling. The joint proposal also addresses the final decision and order in the National Mining Association v. Secretary of Labor, issued by the United States Court of Appeals for the 11th Circuit on September the 4th, 1998. That case vacated a 1998 joint finding and MSHA's proposed policy concerning the use of single, full-shift respirable dust measurements to determine noncompliance when the applicable respirable dust standard was exceeded. As I said before, we're here this morning while the representatives of NIOSH are able to join us to hear your comments about the single sample proposal. Also, as I said earlier, if there are comments which are relevant to the plan verification proposal we have scheduled for discussion this afternoon, we will include them in the rule- rule-making for both proposals. As most of you know, the single sample issue has been through a long public process, which is outlined in the preamble of the proposal. That process ended with a September 4, 1998 ruling by the United States Court of Appeals for the 11th Circuit. The Court of Appeals vacated the 1998 joint finding, concluding that "the record contains no finding of economic feasibility," and that MSHA "failed to comply with Section 811(a)(6) of the Mine Act. Therefore, in response to the Court's ruling, the Secretaries are proposing to add a new mandatory health standard to 30 CFR Part 72. The 1972 joint notice of finding would be rescinded and a new finding would be made that a single, full-shift measurement will accurately represent atmospheric conditions to which a miner is exposed during such shift. This finding is the basis for the new proposed mandatory health standard. Let me now give you a brief description of the 1972 notice of finding that MSHA and NIOSH are proposing to rescind. In 1972, a notice of finding under Section 202(f) of the Federal Coal Mine Safety and Health Act of 1969 was published by the Secretaries of Interior and Health, Education, and Welfare. In that finding, the Secretaries concluded that a single shift measurement will not accurately represent the atmospheric conditions to which the miner is continuously exposed. MSHA and NIOSH have concluded that the statistical analysis and the finding itself were not germane to the congressional intent as stated in Section 202(f) of the 1969 Coal Act and its successor, the Federal Mine Safety and Health Act of 1977. On examination, it can be seen that the conclusion reached in the notice is not consistent with the title of the notice. Specifically, the title of the proposed and final notices published in 1971 and 1972 refer to the accuracy of single shift measurements taken "during such shift." The conclusion reached in the final notice issued in 1972 refers to the accuracy of such measurements to which the miner "is continuously exposed." Section 202(f) specifies a finding focused on the atmospheric conditions of such shift, not the atmospheric conditions during which the miner is continuously exposed. The analysis did not address the accuracy of a single, full-shift measurement in representing atmospheric conditions during the shift on which it was taken. For this and other reasons, such as advancements in technology set forth in the proposal, the Secretaries are proposing to rescind the 1972 final joint finding. This proposal, like the previous final finding vacated by the Court of Appeals, addresses MSHA's ability to accurately measure in a single sample the concentration of respirable dust to which a miner is exposed during a single shift. Accordingly, a new mandatory standard would be added to Part 72 of 30 CFR, which would allow MSHA to use a single, full-shift measurement of respirable coal mine dust to determine average concentration on a shift if that measurement accurately represents atmospheric conditions to which a miner is exposed during such shift. MSHA believes that single sample measurements are more protective of miners' health than the current practice of averaging multiple samples. The process of averaging dilutes a high measurement made at one location with lower measurements made elsewhere. MSHA recognizes that single, full-shift samples have been used for years by OSHA and at metal and nonmetal mines in this country. The coal mining community had the opportunity to experience the use of single, full-shift measurement for a two-year period in 1992 and 1993 and from May 1998 until September 1998, when the Court of Appeals vacated the agencies' finding. We are interested in your comments concerning the application of single, full-shift samples at your mine during that time period. Additionally, because the proposal would be implemented as a mandatory health standard, all elements of Section 101(a)(6)(A) of the Mine Act have been addressed in this proposal. These include the portions of the proposal which address health effects, develop a quantitative risk assessment, and the significance of risk. We are here today seeking your comments on this proposal. At this time, we will consider any evidence or discussion on any aspect of the proposed rule. As I stated earlier we will begin with those who have requested in advance an opportunity to speak. Following their presentations, anyone who did not request an opportunity to speak in advance will be allotted time. To ensure we obtain an accurate record when you speak, please come to the podium or the table and begin by clearly stating your name and organization. The seating is limited so could -- do we have people outside trying to get in? Are we okay? We're okay. Okay, our first speaker today, our presenter is Joe Main with the United Mine Workers of America. MR. MAIN: Good morning. Some points of clarification. My name is Joseph Main, with the United Mine Workers of America, and I'd like to do a little bit of cleanup before I get started this morning just to reaffirm the discussion today. On two past occasions, I have talked to folks from MSHA to let them know that the folks that's here today are going to be talking about the rules in total as they do their presentations. And I think you can picture, there's a lot of miners here today that's got work to get back to, and they need to have that opportunity and I understand -- UNIDENTIFIED SPEAKER: Can't hear you, Joe. MR. MAIN: I understand that's the procedure we're going to use, which works out for that. Also, in terms of the record, we're going to be submitting several documents throughout the course of the public hearings. We've already put in the record by reference the Federal Advisory Committee report of 1996 and the full file on the lawsuit filed by the UMWA regarding the implementation of reforms. And if there's a problem with the referencing of those materials, let us know and we'll provide you with the volume of information. But that's already on the record at MSHA. And like I say, there'll be several other documents that will be submitted in the record over the course of the public hearings. I think it's safe to say, at least from our perspective, that this rule probably will not be finalized by the current administration. And that's in light of the fact that the rule-making process and the length of time it takes to get a rule through, it would basically take a superhuman being to pull that event off. And we've had several rules that's been in the hopper for three, four years at the quickest time frame for a rule to be finalized. So, having said that, there is serious doubt in our minds that the proposals as laid out there on the table will be finalized by the current administration, and we would fully expect any action to take place after the next administration takes power in the country. And as we all know, when there is a shift in power in the country, there are different philosophies that are applied and different decisions that are made. And I'll take you back to something I must talk about here in just a minute, but in 1980, I was part of an effort by the miners to do various reforms of the Coal Mine Health and Safety standards, one of which was the reform of the coal dust program. And there was a proposal that was issued on April 8th, 1980, that would give the miners the full participation rights paid by the operator in the dust sampling program. Unfortunately, that proposal was never finalized before that administration left town, and the following administration made a decision to eliminate that entire proposal. And with those kind of thoughts in mind, we all know how the system works, we have some serious reservations about what's been laid out here and what the end result may well be by individuals who will be no longer maybe around to finalize the rule, given the history. I have also filed a FOIA that has requested specific information on the number of mines, the number of inspectors, that's very relevant to the rule-making process. As of Friday, when I left, I still haven't received a response on part of that FOIA; I did get the information on the dust sampling that's been conducted over the last five years, but we do need a copy of, or a response to that FOIA to gain that information. Excuse me. As the head of the Mine Workers Health and Safety Department, I have had an opportunity over the years to speak to a lot of miners and be heavily involved in the discussions on reforming the respirable dust -- coal dust program. I also served as a member of the Federal Advisory committee, which was charged by the Secretary of Labor to develop proposed standards for MSHA to use as a template for reforming the coal mine dust program. That was a charge given to us by the Secretary of Labor. And as I present my testimony, I'll be presenting testimony both as a member of the Federal Advisory Committee -- former Federal Advisory Committee -- that helped developed those standards and, as well, the head of the Safety Department, which has the responsibility to represent the interests of miners across this country. Having said those things, I would, I'd like to get into the substance of the proposal. And I think one has to understand that all of these proposals are interconnected. The single, full-shift sampling proposal, plan verification, and the sampling proposal that's connected with the plan verification. And you have to read all of those in connection with each other to really understand what the substance of this rule is, because there are parts that are applied across the board. And based on our observations of what this rule really does, we wish it was maybe, in one extent, as simple as talking about a single sample rule and a plan verification, but it's not that simple. Our review found that the proposed rules would eliminate the Mine Operator Dust Sampling program and all operator dust sampling responsibilities. It would eliminate the procedures for dust sampling of miners and areas of the mine, including the frequency and procedures the sampling is to be done. It would increase the dust exposure compliance levels miners may be exposed to. It would substantially reduce dust sampling frequency. It would allow operators to use respiratory protection in lieu of engineering controls. It would establish a plan verification requirement of coal mine dust control plans. It would allow MSHA to use a single-shift sampling method with a limited number of miners' exposure sampled for the full shift. It would revise the quartz sampling procedures. It would establish procedures allowing administrative controls to be used as an alternative to engineering controls for compliance. It would increase mine operator posting of dust plan information, increase miner ventilation plan information, revise the Part 90 mining requirements, likewise eliminating parts of those. And the preamble also discusses miner participation in sampling, continuous dust monitoring, MSHA sampling responsibilities and procedures and other things that I haven't addressed, but there's a whole lot of things in this package besides the single sample issue and plan verification. And as we started to plow into this proposal, we learned very quickly how complicated the rule actually was. And what you had to do was read the entire substance of that rule and also evaluate the enormous policy and preamble information to figure out the connections to those. And on July 7th, of course, MSHA issued those two rules overhauling the program in a very impacting way. And since that time, we've tried to sit down and read it. The first volume of paper we had was, the raw text was 700 pages, and that's quite a bit of information to actually go through in a very short period of time. And that was about 30 days ago when we first received the package. I would dare to say there's a lot of miners out there that have not even had the opportunity to not only get that, but read through that extensive amount of information. And I think that what they're going to find is what they may have heard in the press and in the other announcements, that the rule is far more expansive than that. And I think that's created a lot of problems and confusion out there, what this rule was really about. And I think it's a responsibility of the agency as we go forward to help clear that up, because the components that I just outlined in my initial presentation are components that we have found to be affected by the rule. The agency has made considerable mention about the need to restore confidence and credibility to the program, and my fear is after people really learn what this package is about, that we may put a damper on that. And I think I can explain that as I go through this whole process. I would have to first say that following the review by the Health and Safety specialists within the Mine Workers, which involved Health and Safety representatives, my staff in Washington, and safety committees that we went out and met with and sent these proposals to, as well as our legal department, who has been thoroughly reviewing the rules, we came to the basic conclusion that the MSHA proposal is fatally flawed, not in the best interests of miners in its current form and found to be in need of major change. We also believe that MSHA needs to go back to the drawing board and come out with a proposal that reflects the kind of things that miners have wanted and needed for many, many years and would reflect the findings of the Federal Advisory Committee and would reflect the lawsuit issues that are involved in the January 13, 2000, filing. While the rules do contain improvements in areas sought by the union and by miners, which is improvements on single-shift sampling and improvements on plan verification, those are unfortunately overshadowed by a lot of the changes that have taken place in this rule that will be adverse to miners. And some changes actually, we believe, strip away protections that miners currently have by the thrust of the rule. And instead of increasing worker empowerment, which has been a key issue of the mine workers and miners for many, many years, we fail to see in this rule where it accomplishes that. And actually, we have found by the structure of the rule that may even reduce the empowerment of workers as the rule is implemented. And that is a serious concern by both miners and mine workers. Many rules was drafted in a way that gives MSHA extensive discretion on their application, leaving miners without necessary legal procedures to challenge. And we're going to go through a lot of these, starting with this hearing today and throughout the hearing course, ending in Salt Lake City. And this fuzzy enforcement, as I call it -- I try to give it a name -- can differ from the way we look at this rule applying from one mine to another, from one individual to another and, given the change of philosophy in the government that we've been exposed to over the years, where there is a greater interest to be a consultant than an enforcer -- that has happened in past history -- this rule could be very adverse to miners in the way that it's actually applied. I would caution miners to really look at the discretionary features of this rule, as we, have and be careful not to be lured into a rule structure that really does give too much discretion to the government, that takes away the decision-making of the miners or the legal licensed miners to carry out the implementation of the rules, and that's something that we have found, as far as the structure of the rule, to be quite concerning. There are obvious changes needed in the proposal. First, MSHA needs to follow the recommendations of the 1996 Federal Advisory Committee the Department of Labor created for the very purpose of providing recommendations to the government to be used to write the rules from. As a member of that advisory committee, as I looked through the proposals and the impact of those proposals and went back and refreshed my memory on all the recommendations that were developed by the advisory committee, I found that, you know, those went in two different directions. In many areas, the proposals and the impact of the proposals do not follow the recommendations of that Federal Advisory Committee. Secondly, MSHA needs to implement the reforms that the UMWA cited in the January 13th, 2000, lawsuit. And we believe that the MSHA proposal just outright fails to effectively do that. Third, restore the rules that were eliminated during the revisions process. We think it's very important to go back and fix those. And fourth, eliminate those proposals that undercut protections and rights that miners have under the Act. And there are proposals that we believe in this rule or by its application that will undercut protections and rights miners currently have. I just want to just walk through a history of the reform of the dust sampling program, because I think it's important for that to be a part of the record, and this has been a long path. I remember I started working on reforming the dust program 25 years ago. And there's some folks in this room, I don't know if they'll give their age away, but I think they were with us back in the early days when we launched on a plan, or launched a plan, rather, to bring real reform to the coal mine sampling dust program. And there was real reasons for that, because it was a program that lacked credibility in the eyes of miners. It was a program that lacked credibility in the eyes of government. And it has been, over the years, a program that has lacked credibility in the eyes of the general public for a raft of different reasons. The miners began demanding change to the program after it was implemented following the passage of the '69 Mine Act. In the early 1970s, government reports were starting to come out showing that the dust sampling program was flawed, that it lacked credibility. There was a lot of manipulation found, based on government investigations and surveys. And that led to proposals to reform the dust sampling program that were launched in 1997 and 1998, of which hearings were held across the country like this. Many miners came out, told about the conditions that were existing in the nation's mines, about the manipulations going on with the dust program, and had a list of reforms that they had asked the government to act on. On April 8th, 1980 -- and I won't, this is the quick, down-and-dirty version of all of this -- but on April 8th, 1980, MSHA issued a proposal, or rather a final rule, reforming some of the coal dust mining sampling program, but some of the key components raised by the miners that were not included in that final rule the government promised action on. The miners had made issues of the operator control of the program throughout those public hearings and had asked the government to take responsibility. Miners had clearly staked a claim in having a right to be a participant in this whole process to make sure it was done right. Miners asked that the government develop continuous monitoring devices so that dust they were in could be monitored constantly, that miners could actually see what the dust levels were on a constant basis in coal mines. And those things were not taken care of in that proposal. But what the government did also do on April 8th, 1980, was promise the miners they without address two of those issues. One was miner participation, and the second was the development of continuous dust monitors. And from those promises, the miners walked from those hearings believing, and from that process, believing that the government was going to act to take care of those. Unfortunately, here we are in the year 2000, and neither one of those are in place and neither one of those are in this rule, despite what some kind of versions of what may be in here. Those, based on our review, are not in the rule. As the 1980s rolled along and the government backed off enforcement of the coal dust standards in this country, which I think has been documented, the problem again arose to the public attention in the early '90s. There was charges of mine operators conducting fraudulent dust sampling. The famous AWC cases hit the national press. And while the government was focused on that case, miners in the union was focused on one that they really knew a lot about, and that was what was really going in the sampling process in coal mines. And there was a lot of manipulation going on. And from our viewpoint, a lot of these cases, there was no need for the operator to blow the dust off the cassette, because they weren't putting it on there to begin with. That was one of the basic problems in terms of the sampling process; that miners were being moved around, different activities were taking place that would cause the dust levels not to be reported accurately to the government. And following those announcements, there were hearings on Capitol Hill, and I believe there was three congressional hearings that addressed these issues. And when miners and miners' representatives talked, they talked about those real problems at the coal mines that really needed a fix. April 15th, 1991, there was a hearing in Congress where these issues was laid out clear as a bell. And on April 17th, two days later, the Secretary of Labor announced the formulation of a task force, and that task force was charged -- the three primary issues that task force was charged with was looking for a government takeover of the dust sampling program, increasing miners' participation in the dust sampling process, and moving forward with developing continuous monitors to continuously monitor the dust. Now, when miners heard the news, again, you know, the hopes were raised that we were going to get things that miners had wanted for years. Unfortunately, when the smoke cleared and the agency task force issued its report, those things was not to be had. As the story goes, dust fraud again makes national attention, and this time with all the criminal cases that was being plowed out of the coal industry, where mine operators were caught red-handed cheating on submitting fraudulent dust samples. And over the course of, well, actually from 1990 to date, there have been over 160 individuals or companies that have been criminally prosecuted for those activities, and some of them were doing things as simple as going into the basement of their office, taking a coal bucket, shaking the dust up, putting some dust on the sample, and reporting that to MSHA as if it came out of the coal mine. There was a raft of issues that happened. So in 1995, as miners pressed for reform again, the Secretary of Labor then appointed an advisory committee. And that advisory committee, which I served on, was charged with taking a look at this whole dust program, developing a reform, a holistic reform to this dust program and reining it in. And we were specifically charged with coming up with recommendations for standards to clean up the dust program and eradicate pneumoconiosis in the nation's coal mines. And it was important to do that. Why? If you look at the current stats from NIOSH, there is in the last 10-year period surveyed, 18,245 deaths in the United States attributed to the black lung disease. That's about, by their current estimates, about one miner dying every six hours. There is corruption that has been reported out the wazoo with regard to dust sampling dust fraud in coal mines. And there was a clear need, and I could give you a lot of other statistics, but there was a clear need to reform this, this program. So the advisory committee issues its report on November of 1996, which is over three years ago, and called for basic reforms that included miners' participation, plan verification, single full-shift sampling, reducing dust levels in coal mines, continuous dust monitoring of the dust, and a host of other issues. That package was not seen as take one out or two out and that satisfies reform. There was this holistic approach that was submitted to the government for action. Now, what we saw on the proposal that MSHA has is there's been one plucked out here and one plucked out here, but differently applied than what the advisory committee had even recommended. On January 13th, 2000, after waiting for years, over two decades for reform to take place on key issues that miners have raised many, many years ago, the union filed a lawsuit to force action. And four things in that lawsuit was that MSHA takeover of the operator dust sampling program, increased miner participation in the program, continuous monitoring of the dust with the continuous monitors we've been talking about for two decades, and full-shift sampling of miners to have sampling to represent the full exposure that they, that they were exposed to. On July 7th, when we were able to review the proposals, we found that the proposal was totally deficient when it comes to the advisory committee recommendations and totally deficient when it came to the recommendations -- or to the issues raised in the lawsuit filed on January 13th of 2000. Miners have also contributed to the process in many, many ways. At the public hearings in '78, as part of the development of the union's position in 1991 and the task force activities, at the 1996 Federal Advisory Committee hearings, miners participated extensively in that. They also had discussions with the agency regarding some of the proposals that's before the agency today. And as I read back through those discussions, I was again disappointed to find that the recommendations made by the miners to the government agency as they were preparing this rule were not followed either. As a matter of fact, the miners take some pretty clear and concise positions. Those were rejected, as the rule shows, totally out of hand. Now, during those meetings, which were held at the Beckley Academy with safety committees from all over the country, MSHA was able to walk through about three proposals. One was on plan verification, one was on replacing engineering controls with respiratory protection, and the third was on continuous monitors. And on the issue of plan verification, miners raised a lot of specific concerns. And one was this whole idea of having this 15-percent variance on production as part of the plan verification process, of which I think the record's quite clear that they did not -- they thought that was too high, and some other issues that we'll get into throughout the course of the hearings and testimony. They also said, with regard to replacing engineering controls with respiratory protection, the message that came out of that meeting as I read the notes was loud and clear -- "don't do that." And I think the message from the mine workers for the last several years is "don't do that." The message, as I see it, from the advisory committee is, "don't do that." But that's one of the provisions that I found in the rule, because it does do that. I'm going to go into more detail throughout some of the hearings on some of the other issues that's raised in the record -- I'm not going to spend a lot of time on those today -- from that July 1998 meeting of which safety committees had presented their issues. On July 24th, 2000, the Secretary of Labor filed a motion with the U.S. Court of Appeals urging the court to dismiss the UMWA lawsuit, which was filed to force MSHA to issue four important regulations the union and the miners were urging action on for years. The NMWA lawsuit sought rules which, as I said, would require the takeover of the operator sampling program, would require continuous dust monitors, increase miner participation, and would have miners' exposure sampled through their full exposure. As we read through that filing and saw the agency position in that, in their attempt to dismiss a lawsuit, that the proposed rule-making process addressed the concerns, addressed with more specific standards the UMWA seeks in these proceedings. In other words, we've addressed it in the rule-making. There must be rules there somewhere that affects those. Therefore, courts dismiss the case. And we have filed motions Friday, as I was leaving town, to dispute those findings, but I think it's a fair question that we need to ask at this time, not only with regard to the lawsuit, and given the fact that the agency has said that these are addressed in this rule-making and given what's been put out for the public consumption, that miners, I think, do think that -- who haven't read the rule -- that there is an MSHA takeover of the operator program. I think there is confusion. Miners think they have these increased rights under the rules. I think there is this confusion over what continuous monitoring is. And I think there is confusion that miners believe that they will be sampled on their compliance sampling for the full shift. And we find none of those in the rules. And what I would ask, at this point is to clarify this. Where exactly in the proposed rule can we find those four specific issues? And if you cite the standard specifically, that would help clear the air. MR. SCHELL: Joe, are you asking us to interrupt your testimony? MR. MAIN: Yeah, at this time, and I think it's, because I think there's so much confusion on this with what the agencies have said in the legal arena and what's been in the press and what's in these rules. If the agency could just point to the specific rule each one of these issues are contained in. MR. SCHELL: And repeat your four issues again, Joe, just so I make sure -- MR. MAIN: The MSHA takeover of the operator sampling program, if you could cite the specific rule where that exists. MR. SCHELL: Okay. What's the second, third, and fourth? MR. MAIN: If you want to go, we can go through them one at a time. MR. SCHELL: Could I get the four of them, because maybe I can. MR. MAIN: Well, if you could just answer them as we go. MR. SCHELL: Okay. Well, I don't have the -- excuse me a minute, Joe -- I'm going to have to wrestle with this thing -- I don't have the document in front of me and I would ask staff to try to identify the specific paragraph and will give that to you. I can tell you the takeover of MSHA sampling -- that references the reliance of the agency on compliance sampling by operators. And this proposal does eliminate all reliance on operator sampling for compliance purposes. That includes verification sampling. That includes compliance sampling. That includes abatement sampling. That includes sampling to establish the reduced quartz standard. And that includes sampling to ensure that the Part 90 miners working in a low-dust environment. And I will ask staff to identify specifically what page that's listed on in the document for you. MR. MAIN: But what my specific point, Ron, is where in the rule can a miner point to that shows that there is this MSHA takeover of the operator sampling program? MR. SCHELL: And I would say that that portion of the rule that eliminates the requirement for operator sampling, that eliminates our reliance on operator sampling for compliance purposes. In the preamble, we have stated that we will conduct bimonthly sampling for compliance. There is a provision in the rule itself that specifically states that MSHA will do the verification sampling, and in the preamble it indicates that we will do the abatement sampling and the Part 90 sampling. If you're looking for something in the rule, Joe, you won't find it. The rule is written to govern the conduct of the operator. The rule isn't written to govern MSHA's conduct. What we have said in the preamble is that MSHA will develop a written policy that will outline specifically how MSHA will conduct that sampling. MR. MAIN: Your answer is pretty consistent with what our finding is. We found no provision in the rule that has an MSHA takeover of the operator sampling program. It has been reduced to a policy intent of the agency, which, as we view it, is not legally enforceable and can be changed with policy decisions and could be directly affected with funding cuts down the road when Congress decides to cut back on the funding of the agency. But there is, we found no proposal that accomplished a rule that miners could rely on that did that. MR. SCHELL: Joe, to a large extent that is true that there was no discussion of MSHA sampling in the rule except for the verification sampling. You are correct. The other parts of it are outlined in the preamble where MSHA says it will develop a policy. MR. MAIN: I think it's important for the miners to know that, and I would encourage the agency to get that message out, because we have encountered different people who think that there's actually a rule here that MSHA has taken over the program. And there is this misunderstanding about what policy is and how weak that is in terms of, I mean as compared to a rule, that it provides no guarantee for miners. MR. NICHOLS: Is it your point, Joe, that it should be included in the rule? MR. MAIN: Well, I think my points are going to be made in terms of three things. One is that the Federal Advisory Committee laid out a very clear script for what they believe should take -- should be implemented whenever there's a takeover, and we believe that that script that's contained in those regulations are followed. The second thing is that as I went through the rule and found all of these standards that miners can now point to know when, what, where they could expect to have sampling, those provisions had been totally eliminated. And I think that miners should be very wary of trading a standard by which they can see for one that may be neutered to its bitter end, because it's not even a standard and there's no guarantee, Marvin. And I think the funding issue, which was recognized by the advisory committee, as the agency may lose money, is a critical issue here that should have been addressed by the proposed rule. There was a lot of time spent on that. But we'll have some more specific recommendations. But as it now stands, I think this is a bad proposal in its current form. And legally, our lawyers have looked at it and said that there's no legal standing for miners to expect those as guarantees. And I'll get into the other effects of that in just a second. With regard to the miners' participation, in the specific rule is there increased miner participation rights that we have missed that's in the proposed rule? MR. SCHELL: Yes, Joe, in this sense. That the -- MSHA will be conducting verification sampling. Miners will be entitled to 103(f) rights when we conduct that sampling. MSHA will be conducting compliance sampling. Miners will be entitled to 103(f) rights when we do that. MSHA will be conducting abatement sampling. Miners will be entitled to 103(f) rights when they're doing that. In the past, they clearly haven't been entitled to 103(f) rights when we did abatement sampling because, as you know, that was done by the operator. There is no place in the rule where that is mentioned, because the agency's position is that that's already in the statute under 103(f) and the statute has more influence than the regs. So what we're saying is we have interpreted 103(f) to include the right of a miner to participate anytime MSHA conducts sampling. MR. MAIN: And to that end, it's safe to say that the inspection activities other than the abatement sample has been rights that the miners have had since '77 as far as inspection rights, as far as compliance sampling goes. MR. SCHELL: As far as compliance sampling. MR. MAIN: Okay. MR. SCHELL: Abatement sampling, as you know, we haven't done it the way we're proposing to do it in this rule. MR. MAIN: Well, and it would be attached to the 103(f) walk-around. The plan verification right that you mentioned, it is clear that the industry is on the record to challenge that. They made it quite clear at the advisory committee and they issued a dissenting opinion that made note that they didn't believe that the 103(f) walk-around rights would be applied to a pre-noticed inspection, of which the plan verification is a pre-noticed inspection by its design. And knowing that MSHA does include provisions all the time out of the statute into the regulations, that having not put that there and stood the test of time to be a valid rule leaves that back at a lesser legal standard. And I'd just remind you to look at some of the discussions that was in the record on plan verification -- or on the single sample policies that was, and actions that was taking place there that were forced to go through at the end of the day through the rule-making process, that, as we seen it, when we looked at the rule itself, there is no miner participation rights included in that rule that guarantees the miner any rights beyond what they have currently under rule 103(f). And the one right that the agency is claiming with regard to plan verification is not tied up in a legally sound way that would be more protective. With regard to continuous dust monitors, we found no proposal, or proposed rule that would require continuous dust monitors. MR. SCHELL: That is correct, Joe. We clearly asked for comments on continuous monitors. Right now, the position of the agency is the technology doesn't exist to be able to write that rule. But we all would be -- I think, industry, labor, and government have all expressed a preference to go to continuous monitoring. Right now, we don't see the technology there to be able to write a rule to require it. MR. MAIN: This is an issue of which I'm not going to spend a lot of time on today, but I will at one future hearing, since I've been so heavily involved in this. I totally disagree with that. I think the agency, after 20 years of work, are at the finish line where they're in a position to write a rule. If they're ever going to require it in mines, they got to get a rule, they've done enough work to get a position there that those devices can technically work. And having promised the miners that 20 years ago and standing here in the year 2000 and saying from the agency, well, one of these days we may get there, particularly after testing was abandoned last year, which is another discussion we'll have later, I think is just, it's the kind of things that undercut the credibility of the government, to get that close and then make a decision not to do that. MR. NICHOLS: Are you saying the technology is there now? MR. MAIN: I'm saying that given the framework of the Mine Act, given the technological development of continuous monitors, that the agency is in a clear position to issue a standard requiring the use of continuous dust monitors in coal mines, yes. MR. SCHELL: Well, those are the kind of comments that we're soliciting in this rule-making, Joe. MR. MAIN: And I was disappointed to see the different positions taken by the government as I try to figure out where the government's at. But I think the government, really, when you get down to the nuts and bolts, has the same line of thinking that I do, at least the papers I'm going to be putting in the record and will be talking about at some of the other hearings when there's more time to do that. And the fourth issue was the miners' exposure for full shifts. As I look at the compliance dust standard, which is, I think, the key that miners are looking at in terms of their exposure and controlling their exposure in coal mines, versus the method that we have now, and I look at the way that's applied, there is no full-shift sampling of miners during that compliance dust sampling. Did I miss something there? MR. SCHELL: No. You're correct, but let me put it in context, Joe. One of the concerns that we've had and I think that you've had over the years is when we conduct compliance sampling, a lot of times that compliance sampling isn't representative of what miners see on a day-to-day basis. So that the whole, and you're right when you started out saying you really have to look at the rule in total context and not just pull out parts of it. But the major concern of the agency and I think of the mine workers is, on average, every mine operates about 400 shifts a year. And our goal, and I think everybody's goal, is to ensure that we have compliance on every shift, not just on the shifts that sampling is conducted. So the way this rule is structured is -- the way we wanted to achieve that is to have mine operators develop comprehensive dust plans and then verify those plans with only the controls in the plan in place, and verify it at the upper limits of production the way the advisory committee stated. And our theory being that if you have a well-designed plan that's designed to control the dust with the controls that are listed in the plan and at high production, you're going to protect miners, especially if you add to that the requirement that the operator has to do an on-shift to make sure those controls are in place every - - before you start production, every shift. So if you take a good plan, a plan that's checked every day, and then if you go out and periodically check that plan to see if you have reason to believe it's changed and you use single sample enforcement so that you're not masking the high exposures with the low exposures, you, we believe, will achieve what we're trying to seek. And that's protection for the miners on every shift. Now, to get to your specific question, Joe, in this proposal, we have said that the bimonthly sampling by MSHA, we believe, could be conducted for eight hours, and that would give us an indication as to whether or not that plan continues to protect miners. Now, that eight hours is the eight hours we choose to sample. It isn't -- currently, it's eight hours portal to portal, which means that you sample going in, you sample on the shift, and you bring the pump out. We're talking now about 480 minutes. And MSHA will decide when to sample, so we may not sample in and out. We'll sample at the face. For example, if it's an hour to get to the face, eight hours of production, an hour out, we'll sample the eight hours that production is occurring. What we have asked for in this proposal -- let me back a little bit, one other point. Verification sampling is full- shift sampling. It is not eight hours in this rule. Abatement sampling is full-shift sampling. So if the operator goes out, we sample for the full shift to go, to bring them back into compliance. We're saying that the bimonthly sampling is eight hours, 480 minutes. MSHA decides when to sample. We have specifically asked for comments from the public on whether the compliance sampling should be full shift. However, right now our belief is that 480 minutes, with MSHA deciding when they're going to sample would be sufficient for us to make a judgment as to whether that plan continues to be adequate to protect miners or whether that plan should be re-verified. MR. MAIN: With regard to the plan verification, I think there's some, as I pointed out, there's some improvements in that. There are still some problem areas that we're going to be addressing all the way through, and the plan -- or the sampling mode, one questions why it's used there and not used as part of the compliance sampling of coal miners on a normal basis, because the ones that they're going to be most involved with in terms of the individual monitors and work areas is going to be the compliance sampling, and that is 480 minute. And a miner -- and one of the points I made, the worker empowerment and this -- there is all these decisions made by inspectors in the government, at least all through this proposal, that we hopefully before the end of the hearing process lay those out, that gives us great trouble with all the discretion without miners having a voice, which is something that was sought 20 years ago. I just want to walk through it. With regard to the plan verification in the single sample process and with both the improvements and the shortcomings in those, this proposal does a lot more than that. And as I pointed out, it eliminates the entire compliance requirements of Part 70 and Part 90 on dust sampling compliance. Miners are hostage to what the government says that they will do for them, as opposed to having a rule, which they currently have. The proposal dramatically reduces -- and the way we figure the calculations, the amount of compliance sampling that will take place in coal mines will be reduced 83 percent as far as the number of shifts sampled, compared to both the operator and MSHA sampling today. And what the Federal Advisory Committee recommended was that when the MSHA takes over the program, that there be sufficient funding and resources to carry that out, but also at least that done by MSHA and the operator. And I think that far undercuts that. For out-by work areas of coal mines, they would get one compliance sample a year. And we think that's outrageous by any, any standards. And I think when the miners met with your folks on July 28th, 1998, they raised that specific point that the current sampling, which is only bimonthly, is far too infrequent for out-by areas of coal mines, and now reducing that to one, and none of these are legally guaranteed, is a major problem. The proposal also does some other things with regard to the dust exposure in coal mines. And one of the things we had a difficulty figuring out, because there's so many different schemes and levels established in this rule that has changed the whole landscape, and miners have to look carefully at what MSHA's doing as to what the time of the sample would be, what the exposure would be. But I think it's safe to say, if you look at the numbers in the current rule, that across the board, those numbers have been increased. But in some areas, miners who got this proposal didn't know that, because the number that we found, only after we asked questions and got a answer to a formula that's contained back in the preamble. Well, the 70.100 still says 2 milligram is a compliance level and 1 milligram for out-by and Part 90 miners. Under this proposal, miners would actually have, for compliance purposes, the dust levels jacked up to 2.33 would be the new compliance citation level. And out-by miners and Part 90 miners would be 1.26. And that is an issue that was opposed by the miners, opposed by mine workers, and opposed by the Federal Advisory Committee. And it's based on jacking up the dust levels to make up for this uncertainty that's been described. But instead of taking the uncertainty to protect the miners, which would be to lower that, the uncertainty went the other way and jacked it up to where we now do have these standards. And I think that it was wrong for the agency to be intending on issuing that rule without giving any public notice about that standard. And unless you're out telling the miners, and the only ones that know about is the ones we've told so far that those are the new compliance levels. The proposal also, for longwalls does increase up to 4 milligrams on longwall faces, where MSHA would approve a plan to use respiratory protection. And as a member of the Federal Advisory Committee and a longstanding person that's dealt with coal dust reform, I have to be honest with you folks, I fail to see where raising the dust levels in coal mines gets us to eradicating pneumoconiosis. I just, you know, just, the logic just don't fit in. And as I've said, these are propositions that the miners have opposed, that the mine workers have opposed, and that the Federal Advisory Committee has opposed, straightforward. And again, this is an area where what miners called for going back to the reductions, they called for increased dust sampling in coal mines consistently across the years. And what they now have is, as far as any kind of standard decrease, and that has no legal guarantee, and it also permits mine operators under this proposal to change out engineering controls with administrative controls. And we're still going through that proposal, because of two reasons. One is its conflict with the Act. And secondly, the process, which is so, again, fuzzy, about how this whole proposal is going to be implemented as to what rights miners have. And we've looked at both the respiratory protection control and the administrative controls. We see miners' rights actually ripped out of the process. Right now, when a longwall mine operator exceeds 2 milligram of dust, operator -- or MSHA is obligated to cite. The miner has a right in that legal process under 105 of the Act. They can challenge the abatement time, they can challenge the modifications. Under this new proposal, that doesn't even trigger now until 4 milligram, as I read it. There is no legal procedures of challenge. And I think, you know, representing miners, I would have to say that is not a good standard for miners. It is contrary to the Mine Act, contrary to what miners have said, what the union has said and contrary to the findings of the Federal Advisory Committee. Despite the report of takeovers, I've pointed out earlier there is no takeover in this rule. There's elimination, as I think you've pretty well characterized, Ron, on the operator sampling with MSHA doing whatever sampling by policy they intend to do. And despite references of increased miners' participation, in the proposed rule, we do not see any increased miner participation. I understand your arguments on 103(f). That's what they had back in 1997 -- or 1977 -- and I hope the agency understands the clear dilemma here with what the operators have already challenged with regard to the plan verification, that that's in a very weak position. Although the rule does call for single, full-shift sampling, what we envisioned was single, full-shift sampling, not a piece here, a piece there. With the compliance provisions, which is what we think is going to be the most relied on, whatever they may be, one a year for out-by or six a year, which is far too less, to be exempt from that full-shift sampling. And again, we don't have control over when that inspector's going to make that decision. If they've got their 40 hours close by, Ron -- and I'll tell you, we've been in that problem many, many times -- and it's more convenient for that inspection to take place -- MR. SCHELL: Joe, you said something I didn't understand. You said that compliance sampling would be exempt from single sample measurements? MR. MAIN: No, from the full-shift measure. MR. SCHELL: Oh, okay. I'm sorry. MR. NICHOLS: Why don't we back up and talk about the use of personal protective equipment, since we're having this back and forth. Now, you understand that the use of personal protective equipment would only, would be limited to the longwalls and only those folks working downwind of the sheer operator. And only after the operator had exhausted all engineering controls and requested an allowance from the administrator. MR. MAIN: Yes, I understand that. MR. NICHOLS: For that limited -- MR. MAIN: And let me give you a dose of reality, Marvin. I don't know if you was with us when we got into the dog fights in Alabama over dust levels. And I remember the operator claiming, we've done all we can, you've got to give us respirators, you got to let us use those to comply with the law. I've been in so many of those dog fights over the years, had I believed every one of those that came my way, we would not have the kind of controls that we have today. And it don't take a rocket scientist to figure out how policy decisions are made and how quickly any mine operator could make that claim, and there'd be a weak-kneed policy decision. And as far as policy decisions, you know, I could go through a slew of them here where we would never let a two-entry mining system be used with a bleederless gob dumping gas along the tailgate. I mean, I heard that said many, many years ago, only to find Willow Creek two years ago with that exact mining system. And you've got to understand where miners come from here, Marvin. We can't -- we understand that the application of that rule means that this is going to happen. There's going to be a lot of operators who have claimed in the past they can't do it and they're going to still claim that today. And if those mines where there's no miners' representative to stand up and say, wait a minute, we, you know, we've been through these policies. It's, you know, it's pretty obvious. MR. NICHOLS: But as I recall Jim Walters, that was a type of administrative control of switching people out. Is that right? MR. MAIN: What they wanted, Marvin, was Airstream helmets. That was the first demand that they made. And that was a demand that was refused by the miners and the union. MR. NICHOLS: Is it your opinion that, that all, all areas of coal mining can be brought into compliance by engineering controls? MR. MAIN: It is my opinion that the Mine Act has works successfully. MR. NICHOLS: No, that's not my question. MR. MAIN: Well, I'm going to answer the question the way that I think that it needs to be answered for the benefit of miners. I think that the Mine Act has been successfully applied where the agency has made a decision to apply that. I believe that when a mine operator exceeds 2 milligrams, there's a citation that should go on that, on that mine to control the application of engineering controls. And that operator is under obligation during that process to bring that mine back into control, as opposed to saying we're going to make a decision here, there is no engineering controls that -- and this is, because this is the basis of that whole issue -- there's no engineering controls that can be applied right now, we're going to go to Airstream helmets. I do not agree with that. I think it's contrary to the Mine Act. I think the process in place right now will take care of it. As a matter of fact, if you let me go a step further, when this whole debate started, I started getting interested in how this whole system was working. And I was told, I think by Ron Schell one day that, you know, Joe, if an operator has a quality respiratory program in a mine and when MSHA goes to cite them they get an S&S citation, if they have a quality respiration protection program in place. I pulled the paper and found that in almost 98 percent of the cases, the operators was getting cited with S&S violations. And I stepped back and said, what's going on here? There's a request to use respiratory protection to replace engineering controls, but the industry isn't doing a quality job here just to get out of a citation. And the second thing, I think there's a benefit there where an operator does, in good faith, apply the kind of respiratory protections they should be anyway, that there's a lot of leniency in the system, but it still keeps the enforcement paper on them. MR. NICHOLS: But I just want the record to be clear that we're not talking about putting Airstream helmets or personal protective equipment on people other than one small area of the longwalls where they've exhausted all engineering controls. MR. MAIN: We're talking about an issue that has been very controversial where there has been attempts in the past to do that very thing that does place miners at higher risk of dust exposure. And those miners who are currently wearing respiratory protections that we're describing today, those Airstream helmets, would have their dust levels increased by this standard. And I should remind the panel here that there has been a controversy over this very respiratory protection that you have identified as the ones that replace engineering controls, when it's not working proficiently out there right now. As a matter of fact, there has been complaints made to both MSHA and NIOSH to rectify this problem where miners are taking an approved device, which cannot work in its current form, as I've been told by both labor and industry, because the darn thing fogs up, they can't see, because the filtering system that's used in doesn't permit it to be used well. Miners are even taking out, from what I understand, the approved filter and putting socks and other devices in just to get the thing to work. And that's, unless I'm wrong, I mean this is the only Rickell-3M units that I'm aware of that you have identified in here that was faulty before you ever issued the rule. And that bothers us. And I've had miners complain, like I say, and the operators have complained. If I could proceed. I don't want you to hold up the other folks here. I'm just going to proceed through here real quick. I'll be back again at the end of the session to have any more discussion that you care to have, but as I pointed out also, although the, there's been discussion about continuous monitors, there's none in the rule. The proposed plan, the plan verification program is a bit on the complex side, and we're still sorting through it to figure out how that thing's actually going to work in real life. And I think some of the miners have already had some experience on some models that they maybe testified about throughout the hearings. The administrative controls issue needs a lot more discussion, because it is again replacing engineering control with administrative controls. On the Federal Advisory Committee findings, the Federal Advisory Committee called for lowering dust levels in the nation's coal mines. The MSHA proposal increases those dust exposure levels. And there are specifics on each one of those that we will be putting in the record. The committee called for increased compliance sampling. The MSHA proposals substantially decrease the sampling. The committee called for an effective MSHA takeover of the mine operator compliance program. The MSHA proposal basically eliminated that and converted everything into policy. The committee called for a major expansion of miners and the representatives participation in the whole respirable dust program, training and certifying the miners' representatives, having miners' representatives involved in dust sampling conducted by the operator for plan verification, which we have always said and which the advisory committee has said that needs to be continued as part of this process. We did support those recommendations of the advisory committee. The committee called for miners to be sampled for the full shift. I think there was a clear envisioning that we intended not, over here on this type of, just on this type, that basically sampling miners for full shifts, particularly when it came to compliance sampling. I mean, it was clear in my mind that that's what we were talking about -- and the MSHA proposal fails to do that, particularly in one of the biggest chunks of sampling, whatever it may be that were taking place, which is compliance sampling. Now, the committee called for environmental controls to continue to be the method to control coal mine dust, not replaced by respiratory protections. And there are some other areas in the advisory committee proposal that we will be addressing throughout the course of the hearings. I'm going to, like I say, I'll come back at the end of the, when everybody's finished and go into more detail on some of these proposals that -- as you can see, this is not a simple single shift -- single, full-shift sample rule and plan verification rule. There is a whole lot of other things involved in here that have a direct impact on miners. There's a lot of standards that's no longer there for miners to point out, and there is a lot of construction of this new document that puts everything back as, hey, miners, the government will tell you what you can expect, and we hold that discretion for our own. As for miners, I think that's a bad deal for them to buy into given the policy actions that we've seen out of the agency over the years. And as I pointed out, we think the proposal, in its current form, is fatally flawed. You need to go back to the drawing board. You need to listen to the issues that the miners have raised consistently, redraft the proposal, bring it back, taking care of the issues in the UMWA lawsuit, following the clear direction of the Federal Advisory Committee and coming up with a proposal that really enhances overall miners' protections on coal mine -- in the coal mine dust health and safety program, but which we think in its current form just fails to do. Thank you very much. MR. NICHOLS: Thank you, Joe. Yeah, why don't we take a short break, but let's be back at 10 o'clock. (There was a short recess.) MR. NICHOLS: Let's get started back. We've been told a number of people that it's hard to hear in the back of the room. We've talked to the folks here, and I guess this is about all the volume we can get out of the system, so I would ask that the presenters speak as loud as they can. Can you hear me in the back now? Well, I'm afraid this is probably going to be the best we can do. If you folks in the back want to move your chairs up front, you could do that. We've got some room over to my right here and some to my left. Okay. Let's get started back. Our next presenter will be Chris Ballard with the United Mine Workers of America. MR. BALLARD: My name's Chris Ballard. I'm a safety committeeman with Local 1501, District 31, United Mine Workers. In opening my comments, I would like to first voice my displeasure with the proposed changes in the MSHA's respirable dust regulations. Miners have been fighting for many years to obtain laws and standards that are currently in place. These laws and standards, while better than nothing and have decreased respirable dust in coal mines, still leave an enormous amount of room for improvement. In my opinion, the proposed changes in the existing dust regulations are a step backwards and not what coal miners need or are asking for. First of all, why would we want to reduce the number of samples taken to verify if the mine ventilation plan is actually doing its job? I believe that the samples being currently taken from the mine operators should be kept in place to aid in the credibility of these tests, as miners' representatives should be allowed by law to observe and/or assist in the entire dust sampling process at no loss of pay to the miner. Using this method of testing will ensure the accuracy of each sample to the satisfaction of all parties. And after all, isn't that what we should all be interested in achieving? Also, MSHA should continue to do their testing as they currently are doing. They should not be using any type of schedule as suggested under the new proposed regulations. Random unscheduled sampling, if included in the new rule, will result in the most actual and true samples of respirable dust that miners are exposed to on a daily basis. The length of time a coal miner is exposed to respirable dust has dramatically increased over the past several years. Miners are now being forced to work 10- and 12-hour shifts instead of the traditional eight-hour shifts. Along with this, production of coal has increased due to advances in technology in mining methods. Everyone knows when coal, when you cut coal faster and cut more tonnage per shift, this also increases the amount of respirable coal dust generated. So why doesn't the new rule require that all samples be taken for the entire length of a working shift and during full production, not just an average? This new rule also increases the amount of respirable dust being allowed on a longwall face. The new rule, depending on the interpretation, would at least double the allowable dust concentrations from 2 to 4 milligrams with the use of respirators or air helmets. This is clearly a step backward in MSHA's ability to require a reduction of coal dust and eliminate pneumoconiosis. With the technology available today, engineering controls can take care of respirable dust at a level below 2 milligrams if they are used and maintained in the conditions which they were designed. Clearly, an increase in these numbers is not needed. No one here wants to see their family members exposed to twice as much respirable dust as is now allowed by law. Also consider the added danger this increase in dust, if allowed to be suspended in the air course, would create if a face ignition would occur. One of the best solutions of dust sampling would be a continuous monitoring system. If a monitor were mounted directly to the mining machine, a true and accurate sample could be obtained. These testing devices are available and should be implemented into the new rule, as the advisory committee recommends. I believe that MSHA should go back to the drawing board and revise the proposed dust regulations. I believe that MSHA should take a closer look at the advisory commission's recommendations and develop a new set of rules using these recommendations as a strict guideline. I also believe that MSHA should establish a new respirable dust rule that truly minimizes a coal miner's exposure to respirable dust and stops coal miners from dying of black lung. Thank you. MR. NICHOLS: Thank you, Chris. MR. SCHELL: Mr. Ballard, just following up on Joe Main's comment that we try to explain things to you, one of the things, one of the major pluses of this rule that we see from the government -- and the reason I'm stating it that way is because we need your input as we move to a final rule -- one of the major things that we're doing is this plan verification. And that really is sampling under very stringent conditions. The mine operator has to set the parameters that they have in their plan and that's all. And they have to be no more than 15 percent about what they say in their plan. They have to reach a level of production that's high. And if you read the rule, we know they're not going to reach that level of production every day we verify, because of just the reasons that you guys know; some days you get high production, some days you get low production. So we're not going to be out there sampling just one, two or three or four shifts to verify a plan. We're going to be going back multiple times. But the concept is that we want that plan tested for the entire shift at just what that operator says he's going to put in his plan for the entire shift. Because if we think we're confident that that plan works and he checks that plan every shift, miners are going to be protected. Our concern with the bimonthly sampling and with the operator sampling -- and Joe raised this too -- a lot of times, that sampling isn't representative of what you see every day. Okay. An operator could have more controls in place. An operator could cut back production. So our key is we want a plan that we have verified. Okay. We want that plan checked every production shift to make certain that those controls are working and you guys are comfortable that those controls are working. We see bimonthly sampling as a check on that process, but we don't think every time we do bimonthly sampling we're going to see the conditions under which that plan was verified. So we're putting an enormous amount of our effort into getting those plans and making certain that those plans work and making certain that those plans are in place every day and every shift. Again, our goal. We want miners protected on 400 shifts a year on average, not on the 30 where sampling occurs. MR. NICHOLS: And I would just say again that the, that the consideration for personal protective equipment will be only on longwalls for people that are working downwind of the sheer operator. And no consideration will be given to the use of personal protective equipment until MSHA has made a determination that all engineering controls have been exhausted. It's, it's very restrictive, a consideration for the use of personal protective equipment. Okay, our next presenter will be Jim Taylor, with the United Mine Workers of America. MR. TAYLOR: Good morning. I hope everybody can hear me, because back there it's really tough. And we were talking about the regulatory controls for the air helmets, okay. Here's the problem. NIOSH come up with a different kind of filter. As soon as they come into play, the guys start coming to us and they say, they tear, can't see, fogging up all the time. That hasn't changed. They're either replacing the -- and we talk. I mean when we get the safety committees together, we talk what's going on to other miners. They are removing these filters and they are sticking socks over top of them. Sliding them in there inside that filter to take away the condensation steaming up so they can see. So that really has to be considered in here before anything can be granted. You may have everything in control, but if people's not using it, it's no good to us. The same way with the hearing protection. We have cleaning plants out there that are loud as bass drums. And what do we do? We give them ear muffs, and that puts them in compliance. And this is what we're getting into on this. The air helmet is a good thing if it's used and you can see through it and the filters are properly -- when they come to us, we called 3M and we said, we want the old filters back, guys are raising hell about this. They said "there is no old filter anymore. Discontinued according to NIOSH. This is NIOSH's new standard. This is what we have to sell you." But it doesn't work. So now guys aren't wearing them. They're wearing the old paper respirators that are less protective that what we have. So we've got to make things work here before we start giving -- I know it may be a long-term down the road for 4 milligram, and like you see, all engineering controls would have to be exhausted, but hopefully that would take care of it. If they have exhausted all engineering controls, we shouldn't have to get into an air helmet to allow them the same as we do with the hearing protection. And another thing I'd like to ask about is we didn't hear real good back there, so maybe a clarification. MR. SCHELL: If you take that microphone off and put it up to your mouth. Take it on the stand. MR. TAYLOR: Oh, I can talk loud. People will hear me. But what I want to ask about is if MSHA uses certified dust people to run these dust samples, then, and they don't have an AR card, then we have no walk-around rights, correct? MR. SCHELL: No. That would still be enforcement action. MR. TAYLOR: Without an AR card, and they're just certified only in dust? MR. SCHELL: Yes, but that would still, that person might not be able to issue a citation, but I would say that's still enforcement activity, and I'm looking at some of the managers who are here, but I've never heard of us not allowing walk-around rights when we're doing dust sampling, even if it's a non-AR -- we'll check on it, Jim, but our position would be that the miners' representative should have 103(f) rights when we're doing dust sampling. MR. TAYLOR: Sure would appreciate that. Thank you. MR. SCHELL: If I could comment on the Airstream helmet. We are aware that 3M is working on that. The proposal does say to use pappers (phonetic) they have to be approved devices. So, you know, if it wasn't approved, it couldn't be used. MR. NICHOLS: Well, in addition to that, I mean, a miner can't be just handed a personal, piece of personal protective equipment, that the company would need a good maintenance program that is in conformance with -- MR. TAYLOR: Well, we got a good maintenance program. They take care -- it's the filter. It's the filter that's causing the problem. That's what makes the, when it steams up and then you wipe it one time with a dirty glove, you're done for the day. I mean, you're going to have to go clean it. You find more helmets are staying in the up position now, back on their heads. They're not wearing them or they're just, we're going to do the paper respirator and wear it, because they say they can't see through these helmets with new filters in. They're causing them to fog up. So it's not a maintenance program. It's the filter that 3M is producing right now, but when we called them, they said, "we can't change it. NIOSH told us this is what we will use." MR. SCHELL: Yeah. You're right. MR. TAYLOR: That's what they told us. MR. SCHELL: Like I say, there is some work being done on that. And I think there's a new Centurion papper that's being developed too, but you're right, Mr. Taylor, that that unit would have to be approved before it could be used under this rule. MR. NICHOLS: Thank you. Our next presenter will be Leon Mosculink. I may have not pronounced that last name right. Also with the United Mine Workers of America. MR. MOSCULINK: The first sentence in the Act, it comes down that we must protect the most precious resource, and that is us, the miners. And to allow, to say that the operator has exhausted all the parameters and we're going to go with the equipment and to up the respirable dust limits to 4 milligrams, in our opinion, that is not protecting the miner, the most precious resource. Joe asked specific, show me in the rule where this is and where that is, and you can't show him. And if it's not a rule, if it's preamble, if it's policy, MSHA can't cite policy. MSHA only cites standards and rules. The full shift, single shift, the reason, the reason that we wear dust pumps at portal to portal is because we have different forms of contaminants that we breathe. Silica from sand, rock dust, coal. And a lot of us are mandatory to work more than eight hours mining coal. We need more than 480 minutes of sampling to get a true sample of what we breathe. And having the inspector, as you said, Ron, the inspector wants to determine when he wants 480 minutes. But that's not true for all the miners today who are working in the mines. We're working more than 480 minutes loading coal, cutting coal, hauling coal. And to, as I said in the beginning, to up, to up the 4 milligrams on a longwall, we're not protecting the most precious resource, and that's us. You cannot, you cannot allow the operators to say, oh, we've exhausted everything and we're going to give you Airstream helmets. And as Marvin says, it's only going to pertain to people downwind on the longwall. What's going to, what's going to say that the operator can't say on a continuous mining section, well, they've done it over here, I'll do it on the continuous mining section and give them Airstream helmets? MR. NICHOLS: If you're asking me a question, I think we've made it clear in the rule that the agency believes that in all other areas of a coal mine, engineering controls could be applied to eliminate the overexposures. MR. MOSCULINK: Marvin, how's the people on the longwall different than any other place in the coal mine? That's what you're telling us. MR. NICHOLS: No. I'm telling you that the agency has recognized that there may be times when the people working furthest downwind may be exposed to concentrations higher than 2 milligrams and that the problem cannot be engineered out. Not, not the sheer operator or anybody else working on the longwall. It's those folks working downwind. Now, if I would have misspoke in any way, I'd ask the panel to help me out with that. MR. SCHELL: It might be helpful to talk a little bit about the process, that we see that the only time that the administrator would even consider administrative controls or pappers downwind of the DO which is the 044 -- and I want to emphasize that -- the rule says, right now on longwalls, the designated occupation is the 060. That's the miner working furthest downwind. If we went through plan verification, and that's what I've been talking about, full shift sampling, only the controls listed in the plan in place, okay. If we went through that plan verification process and, based on that, we determined that the operator couldn't apply engineering controls to keep people downwind in below 2 milligrams, the DO would be moved to the 044. The operator would have to comply with the 2-milligram standard at the 044, the sheer operator. Only people working downwind would be allowed the advantage of administrative controls or pappers. And you should recognize that NIOSH says pappers have a protective factor of 25. That means you could take a standard of 2 milligrams and multiply it by 25 and, in theory, allow 50 milligrams of dust downwind. We haven't accepted that. We've said that for that unit, even though NIOSH rates it as a protective factor of 25, we're only going to give it a protective factor of 2 maximum, so that we will give no more than a credit of to a maximum of 4 milligrams of dust downwind. But I want to emphasize, you're going to have to go through this -- it isn't you just write to the administrator and he says okay. You're going to have to demonstrate through the plan verification process that you cannot maintain 2 milligrams downwind of the sheer operator. MR. MOSCULINK: And my point again, Ron, I mean those people downwind are, as you're saying, they, they are allowed to work in more than 2 milligrams of dust. That's what you're telling me. MR. NICHOLS: Is that not the reality today? Is that not the reality today? MR. MOSCULINK: The reality? The reality, Marvin, is that you have 2 milligrams, you have a law. Miners have died for -- that we've come to this. And now you're going to say, well, we're going to let the operators, because -- because the operators come to you and say, well, we can't do this, you're going to have to give us parameters where people that are downwind are going to wear Airstream helmets. MR. NICHOLS: No, the first thing we're going to do is ask the operators to apply all feasible engineering controls to handle dust overexposures everywhere in the coal mine. And once we go through that process, if at that point people working downwind are, continue to be overexposed to 2-milligram standard, then we will consider allowing them to use personal protective equipment on that limited basis. MR. MOSCULINK: And as the previous Brother testified before, he said that we have, we have people putting socks in these Airstream helmets for the filters, because, because they're fogging up, so they're, so they're improvising. MR. NICHOLS: Okay, but let's back up a minute. We've exhausted all engineering controls and we still have the problem. What would be the alternative to personal protective equipment? MR. MOSCULINK: I mean, we, you know, and Joe stated to you too, Marvin, you know, he was on the advisory committee, and as I stated in my opening sentence, the most precious resource is the miner. We, you know, you have to make the operators do what their plan and what their ventilation plan calls for and you have to hold the operators to that plan. That's the whole reason. You know, that's, that's my thinking of enforcement. I mean, and to me, you guys are giving the operators an easy way out, saying, well, if you've exhausted all your, you know, you've exhausted everything else and now we're going to go to the equipment. To me, you're not helping us, you're not looking out for the miner. And lately it seems like, you know, that's the thing, you know, with the court cases, you know, and I've always got from inspectors and from, you know, we've got cases in court and everything and we can't do this, you know, our hands are tied. You're going to have to say, hey, you know, to hell with our hands are being tied, we have to protect the miner. And like on a full-shift sample, when, on a continuous monitor section, when a continuous monitor's up cutting overcast, they're never sampled. I've never seen, I've never seen a continuous monitor operator sample when he's up cutting overcast in the wall. Am I correct? I mean, yeah, I mean why? How's come? How's come the, the loading crew is not sampled when you're up on bench mining cutting rock? MR. SCHELL: Well, they should be if they're there. MR. MOSCULINK: Yeah, they should be, but they're not. They're not. It's not, you get the excuse, well, that's not, they're not cutting coal, they're on, they're on a rock. We've got to eat that dust. The only thing my, you know, I'm going to stop here and, because I could go on forever, but we have to get back to protecting the most precious resource, and that's us. And with this proposed rule, you're not protecting us. You are not protecting us. Thank you. MR. NICHOLS: Thank you. Our next presenter is Jim Lamont, also with the United Mine Workers of America. MR. LAMONT: Jim Lamont, United Mine Workers of America. I'd first like to start off saying I'm a veteran miner of 22-plus years working underground in the coal mines, and a lot of this, what I have sat down and read in the short time frame that we were allowed, was very, very confusing. I've been to numerous hearings such as this, was able to sit down and fully understand for the most part what was being presented, but in this case, it was very difficult to understand where the rule started and ended and where the preamble started and ended. And I'd just like to have that on for the record. Picking up on one thing, what Brother Mosculink just said about sampling whenever they're cutting overcast and such. Just one thing just popped in my head over that. A lot of coal mines in the industry out here nowadays, what they'll do is they'll cut coal -- this is like in the lower seams -- they'll mine their coal during the weekday and on the weekends they back up, cut bottom where they're mining a lot of rock. And what we have encountered in some of the mines that I've been in in the past is there is no provisions and actually no parameters set up to take care of the dust and cutting rock once you've already mined the coal out, you're backing up. And as Brother Mosculink said also, I have yet to ever see anybody be sampled under those conditions. Just recently, I had to return to the mines for a brief period of time. The mine in which I, the mine I came from, was just recently shut down. And being away for a short five years was a big change. Not only me going back, spending six weeks there trying to catch back up on how things are done, but the physical aspects of it all also. I was working back at the face and things have changed a lot since I have left the industry in that respect too. One thing I did notice, you get a lot of these continuous mining sections. The dust that is emitted is unbelievable. And it's been one thing, one of my really big beefs is the amount of dust that these working miners today have to breathe. And like I said, I haven't been away from the industry all that long, and me just going back being away that short few years was a big reality check. And sometimes I have to sit back and contemplate like where do some of these rules come from? We have the advisory committee with all of the recommendations. You've heard the miners throughout the years with all their comments and recommendations on what we need. And then we get the stuff in this proposed rule that just goes completely against it. I don't know, and you know, nothing personal to the board up here, but I think a lot of folks in Arlington should go back into the mines, spend a period of time there, actual working conditions, and get a reality check. I mean, I think a little bit of everybody needs to that. It'll open everybody's eyes up. One thing that we did do is sit down and we talk about the amount of samples that are going to be reduced by some 83 percent. What we did was sit down and, like I said, again, in a short period of time, and some of this may not be completely accurate, but this does come from some of MSHA's own records. The Cumberland mine. The number of total samples -- and I'll just go over the summary of this here, this includes the operator and MSHA samples for the month of January, and this is of the year 1999 -- a total of 57. The month of February, 31. March was 50. April, 11. May, 38. June was 42. July, 24. August, 58. September, 30. October, 26. November, 23, and December, 24. For a grand total of 414 samples that was taken. Now, from my understanding of this, and correct me if I'm wrong, this is going to be substantially reduced. MR. SCHELL: Jim, is that samples or sampling shifts you're talking about? Because what MSHA is proposing would be to take, and we are doing that now by a policy, we're taking the same number of samples, roughly, that operators do, but we're not sampling as many shifts as operators do. So the answer, to some degree, is yes, if you have operator sampling and MSHA sampling, when operators stop sampling, the number would be reduced. But we are saying, since we're sampling bimonthly, which is six times a year and we take at least five samples on the shift that we conduct the sampling, and the operator takes one on the five shifts, the total number of samples won't change much. So the, I don't know if I'm saying that right. The number of samples will remain about the same. The number of shift samples will decrease. MR. LAMONT: Under your calculations, what would that approximately be? MR. SCHELL: Well, right now, the operators take 30 samples, because they sample one, they take one sample for 30 shifts. That equals 30. We're proposing to sample six shifts and take five samples, which would be 30 samples. The difference being we sample five occupations on a shift. The operator basically samples the high-risk occupation. MR. LAMONT: These numbers I did give you were actual samples. MR. SCHELL: And they're both MSHA and operator? MR. LAMONT: Yes. Yes. MR. SCHELL: Okay. The numbers should decrease. MR. LAMONT: Actually, the numbers I came up with and the numbers that MSHA came up with, mine was lower, which I went with the lower number. The number I did get from MSHA with the operator and MSHA taking, was 432. That was for the Cumberland mine. For the Emerald mine, it was a grand total of 358. MR. SCHELL: Well, one of the points we're making is when the operators take their samples, they decide the day they're going to sample and they know the conditions under which they're going to sample. They sample one occupation. When MSHA comes in, it's unannounced. We sample five occupations so we get a better idea of what's on that section. So I think all of us, I think we're all in agreement that MSHA sampling is better than operator sampling in terms of being more representative perhaps. MR. LAMONT: Still, I believe with the advisory committee's recommendations, we're under the impression, in which they asked for MSHA to take over the sampling of the operator sampling, that it would be sampling just as much as which the operator did. And I'm not under that understanding. What you said would be a total of 36. MR. SCHELL: But you are right. We are not sampling the number of shifts that the advisory committee recommended. That is correct. MR. LAMONT: That's all I have. MR. NICHOLS: Thank you, Jim. Our next presenter will be Gene Davis, also with the United Mine Workers of America. MR. DAVIS: My name is Gene Davis. I work at Consol at the Dilworth mine in Green County, Pennsylvania. I believe there are a few things I need to say about the proposed rule, so we'll get right to it. During the first round of fact finding for this rule, I remember the outcry by myself and other miners to the advisory committee on the need for full-shift sampling. These outcries seem to have fallen on deaf ears, as MSHA in its infinite wisdom feels it is not necessary to sample a full shift to have a representative sample of the amount of dust that we are working in. The way I read this rule, and please correct me if I'm wrong, is that once the plan is verified, if the bimonthly sample that is out of compliance then, and only then, will MSHA take a full-shift sample for abatement purposes. If you were out of compliance for the 480 minutes, how bad was the actual concentration these men were in for the entire shift, which could have been ten or even 12 hours? Or how many days, how many other days were these men out of compliance in the ninth, tenth, 11th or 12th hour? I'm sorry for asking that question. I know there is no way to tell what that concentration was at this time, nor will they ever know without complete full-shift sampling. Let me see if I understand this part of the rule, which I believe states that if a single sample comes in at 1.71 milligrams per cubic meter or less, then it would not be necessary to sample that area any more in that sampling period. This, of course, would be a 480-minute or an eight-hour sample. Now, if you have a sample that comes in at 1.7 for eight hours, which is considered a good sample, and you break this down, it means that that sample has gained 0.85 milligram per cubic meter every four hours, which means in a 12-hour shift, these men could be working at 2.55 milligrams and MSHA truly believes this is what we need. That's scary. Perhaps you did not understand this message the first time we said it, and if that is the case, allow me to reiterate. We need full-shift sampling. That is to say that if the shift is nine, 10 or even 12 hours, we need an accurate measurement of the amount of dust that we are working in for these long hours. Secondly, you make reference in the preamble to the fact that there is no confidence in the operator sampling program, because of years of, to be blunt, cheating and manipulation. MSHA cites this as one of the reasons for taking over the program. However, MSHA is now proposing to take fewer samples, fewer shift samples, 83 percent fewer shifts. And then, once the sample is taken and found to be in compliance, MSHA will then rely on the very same people, that is management, to perform on-shift exams of the dust parameters to ensure the level of dust sampled will be indicative of the actual dust amount in the atmosphere. If you cannot trust the management to take the samples, how can you rely on them to perform the needed on-shift exams? I wonder how many citations were written on the dust parameter check since '96, when they were put into effect. Is it just me, or does this approach seem flawed from the beginning? The one thing we do not need is fewer samples. Fewer samples simply will not tell us what we need to know. The next item I'd like to address -- and I won't be too long, because I believe it to be more ridiculous than the first two -- is the use of an Airstream helmet to clean up the atmosphere. Excuse me. The Airstream helmet cannot clean up the atmosphere. It can only mask the amount of dust we are actually working in. Not only will MSHA allow the use of these helmets, they will allow the concentration to double to 4 milligrams per cubic meter when they are used. They will allow this knowing all that has been written about the effect of this and how it can be reduced by velocity, angle of deflection, the fact that they are being worn improperly. And don't forget the very restrictive filter that many miners are not wearing at this point in time. MSHA still believes it is proper to allow the use of this personal protective item instead of cleaning up the atmosphere. To answer that, I will make this statement. If you do not write a rule that stretches the limits of existing dust abatement technology, how will you ever move ahead in this field? All management will have to do to come into compliance is buy more Airstream helmets. What will we have next? A helmet that will allow us to work in 5, 6, or even 7 milligrams of dust? So instead of a dust abatement technology, we end up wearing a space suit. I do not believe this is the approach we need at this time. In summary, I would like to say this proposed rule does not come close to protecting us from the devastating effect of black lung. What MSHA has done, once again, was appease the workers with an advisory committee, which had two labor representatives on it, and then totally ignore their findings in the most important areas, such as full- shift sampling, lowering the 2-milligram limit and not raising it, not allowing administrative or personal protective gear to be used to come into compliance. And there are many more that were ignored. Then, as always, they write what they wanted in the first place and expect us to accept it. Not this time, guys. Take this rule back and give us a rule we can live with, literally live with. And that's it. Two other things. Sitting in the back I hear you talking about plan verification and you make it very adamant that this verification will be under very strict guidelines and you'll have to meet a certain tonnage very close to what the tonnage for that last 30-day period was and 15 percent of your, you have to be within 15 percent of your parameters. Where will that sample be taken? At the start- up of a panel? At the midface of a panel? Or at the end of a panel? Because that means a lot. If you verify this at the end of a panel when the coal is soft and falling off the face, and then we go in to start-up, your verification is really not very good at that. And I haven't heard anybody address that. Where will that be taken? MR. SCHELL: We haven't focused on that in the rule, but that's a very good comment. MR. DAVIS: Yeah, I figured that might have been. Another one, on the Airstream helmets, on the Airstream helmets, you say that, I guess the last, Joe Main was up there, and Leon was up there, and you asked them, if we're not to use Airstream what are we to do? You know, and I guess you're wanting the mine workers to say, well, Airstreams are all right. Well, here's what I think. If you want to use the Airstream as an interim, fine. Do not raise it to the level to 4 milligrams. Leave it at 2. Write the citation, put an abatement time on it. At the end of the abatement time, let's have a meeting and find out what management has done to come into compliance with the 2.0 limit. If they have not, if they've drug their feet, let's bump the citation to S&S and now put another abatement time on it. If at the end of that period, they still have not made a substantial move into that field, let's put it to an order and put another abatement time on it. If you want to use the Airstreams, that's the way to use them? Don't throw them in there blindly and leave them on their head with no abatement time on it. Anything else, fellows? MR. NIEWIADOMSKI: Mr. Davis, can I ask you to clarify something? MR. DAVIS: Yes. MR. NIEWIADOMSKI: Early on you had mentioned a concentration of 1.71. MR. DAVIS: Yes, I believe I read that in there where if a single sample comes out at 1.71, it will be considered good and no more sampling will be done for that period in that area. I believe I read that in the preamble. MR. NIEWIADOMSKI: What that has to do with, I think that there's some confusion. That statistic or that concentration is a limit for plan verification. What we're basically saying is that -- MR. DAVIS: Well, I believe that's fine, but -- MR. NIEWIADOMSKI: But that's very important, because remember, right now, and I need to clarify, right now if we go out there and sample, and the operator's mining 60 percent of the last 30 production shifts on the average, and the concentration of the samples is 2 milligrams, we'll approve that, okay? It's compliance. But in the plan verification, it's very stringent. What we're basically saying is you're going to be producing at the 10th highest production level, and your concentration, we're not going to accept the plan as being adequate at 2. We have to be highly confident that it's, that it's meeting the standard, which means 1.71 for coal mine dust. If it's any higher, we have to sample some more. What we're basically saying, under those conditions at 1.71 for coal mine dust, and remember the other thing that you need to recognize, there are two tests that have to be met. We're talking about coal dust and quartz dust. That plan has to be designed to make sure that you're anticipating that you have to meet 100 micrograms and 2 milligrams. But for us to accept it, we're not going to accept it at 2 or 100, we're going to be 95 percent confident the plan works. So the levels are even reduced down to 1.71 and 87. And that's what I wanted to clarify. MR. DAVIS: Let me fully understand this then. What you're telling me is a full -- if I'm working 12-hour shift, and a full verification sample comes in at 1.71 -- that's fine. That'll meet. MR. NIEWIADOMSKI: That's fine. That will meet. That's a 12-hour sample. MR. DAVIS: That's a full 12-hour sample. Okay. Now, on a compliance sample, the normal bimonthly compliance sample that you come in and do and you hit a 2.0 and you will say, well, that's okay, a 2.0 is still fine. Is that right? MR. NIEWIADOMSKI: We would -- MR. DAVIS: And that would be a 480-minute sample? On the same 12-hour shift that I just worked? MR. NIEWIADOMSKI: But not at 10th highest production level. MR. DAVIS: But if I'm at 2.0 in eight hours, I still have four hours of a shift left. MR. NIEWIADOMSKI: Right. MR. DAVIS: How can I be in compliance? MR. NIEWIADOMSKI: If the sample, if the sample is 2 milligrams or any higher, we'll go back and sample it again, because what that's going to tell us is this: We know the parameters during that shift, and most of the time when we go out and sample, the operator normally exceeds what's in the plan. Does he exceed, would he exceed the high production level? No, he's going to try to mine to make sure he's at minimum production. All right? MR. DAVIS: He will exceed the dust parameters but not the production level, let's put it that way. MR. NIEWIADOMSKI: Well, that has not been our experience. MR. DAVIS: It has been mine. MR. NIEWIADOMSKI: But assume that's the case, okay? And if you have a 2-milligram concentration, what that does for us, it's going to raise a red flag in saying, gee, when we did the plan verification, he was right at the plan and he was at 1.71. Here, he's exceeding the plan and he's at 2. That triggers additional shifts of sampling on our part. MR. DAVIS: If he comes in at 1.98 on that compliance sample, will you allow that to go then? On a 480-minutes compliance sample after a plan has been verified. MR. NIEWIADOMSKI: Okay. MR. DAVIS: You will allow that to go? MR. NIEWIADOMSKI: If the -- MR. DAVIS: If the measurement is 1.98 milligrams per cubic meter. MR. NIEWIADOMSKI: If it's 1.98, okay, in all likelihood what we're going to be doing is we may in fact go back -- MR. DAVIS: I don't mean to interrupt you, I don't want to know what you might do, I want to know what the rule says you'll do. MR. NIEWIADOMSKI: We'd probably, we would go back. We would go back. We would go back and say we'll have to sample another shift. MR. DAVIS: Even though he is in compliance. You cannot write a citation at that point. Right? MR. NIEWIADOMSKI: That's right. That's -- but it allows us to sample some additional shifts to see whether or not there is a problem with the plan. If we suspect that the plan is inadequate, we would go into re-verification sampling. MR. DAVIS: Whose decision will that be at that point in time? MR. NIEWIADOMSKI: That's the inspector, district manager. MR. DAVIS: All right. There's nothing written on that, thought. That 1.98 is actually a clean sample, right? No, I don't, I mean I read the preamble, if it's something written and I missed it -- MR. NIEWIADOMSKI: The clarification is this: That there are no rules out there that actually define or explain how MSHA does inspections, right? We would in fact issue, we have -- we're revising chapter one to actually, to describe, to detail the procedures that we would follow when we do compliance and abatement sampling. I recognize that those procedures are not in a rule. They were never intended to be, because there is no rule out there right now that defines our inspection procedures. We would issue chapter one. That would be issued for public comment. Everybody would have an opportunity to provide comment. That will be articulated. I agree with you. There's nothing in here that says exactly how is it that we're going to be doing it. MR. DAVIS: Right. And you know George -- MR. NICHOLS: We understand the comment. MR. DAVIS: And I believe, I really believe, George, that you believe or you hope that this is going to work just like you want, and maybe in a absolute crystal ball, it might. But let's be real. It's not going to work in that manner. I could guarantee it's not. MR. NIEWIADOMSKI: I truly believe that this is the best package, this is -- if you take a really close look at it, you will find that this is a significant improvement, the most significant that we've had over the past 30 years. MR. DAVIS: George, I'm not going to say it's not an improvement. Is going to say it's not enough at this time. And I'll leave it go at that time. I don't believe it to be enough at this time. So we agree to disagree on that one, George. MR. NICHOLS: Okay. Thanks, Gene. Our next present will be Chuck Hayes, also with the United Mine Workers of America. MR. HAYES: My name is Chuck Hayes. I'm from District 31, Local 1570. I feel that this proposal reduces protection for the miners. You are increasing the dust exposure level that's contained in the Mine Act, the current standards. This proposed rules dramatically reduces the frequencies of sampling by 83 percent. And you're going to change the samples back to bimonthly, six shifts a year. In the out-by areas, one time a year. The advisory committee, they do not support this proposal. They recommended that we'd have more samples be increased, not decreased. This proposed rulings are not in the best interests of the coal miners, and I feel that it's undercutting the protection for the miners. That's all. MR. NICHOLS: Thank you, Chuck. Our next presenter will be Tom Sutton, also with the United Mine Workers of America. MR. SUTTON: Good morning. My name is Tom Sutton. I'm from Local 1248, United Mine Workers safety committeeman. The advisory committee was formed for a reason. Most importantly, two of those representatives were miners. They made recommendations on this, but weren't followed. I don't understand why. They recommended that the sampling be increased, not decreased. You decrease it by 83 percent. They didn't call for the elimination of the operator sampling. Think it over. One shift for out-by workers. I'll never understand that one. There's a lot of other work that takes place in a coal mine than mining coal. One of the things that was brought out by Brother Leon was the cutting of overcast. We've had lengthy discussions on this. More dust, less ventilation, no sampling. I don't understand it. If an inspector comes without an AR card, there is no monitoring. We're not represented. That's it. You got to reconsider this thing. That's all. MR. NICHOLS: Thank you, Tom. Our next presenter will be Chuck Brant, also with the United Mine Workers of America. MR. BRANT: Good morning. My name is Charles Brant and I'm the chairman of the safety committee at the Dilworth mine. Since it's been laid in my lap here in the past week, and I've listened here to a lot of my fellow miners on their comments, I have some of the same comments to make on the Airstream helmets. I have to answer to a lot of my fellow miners at the mines, and from what I've read out of this, I'm not a Philadelphian attorney, but it's we're going do this and we're going do that. But what I seen here is, the main thing and some of the things that I've been asked at the coal mine is why I'm not sampled. Aren't I considered a coal miner? If I'm drilling on an overcast, I'm drilling in rock, why I'm not personally sampled. If I'm shoveling belt, why doesn't MSHA sample me? They only used to, the miners did it on the production units. Well, it's going to be sad for me to go back to these guys and tell them, yes, I got you an answer. MSHA wants to cut sampling. I don't know. I haven't been in this this long, but I've been a coal miner for quite a few years. I've worn the dust screen helmets. Do they cut dust? Yes. But you can't put us in more concentration of dust with these helmets. I know myself as a coal miner, when I wore one of these as a sheer operator, I changed my filter every day at the beginning of the shift and at lunch time. And when I come outside and blew my nose, there was still dust concentration in my nose. I don't know what it's going take. I've seen my, a few of my older uncles die of black lung. Somebody said that, who makes these laws. I don't know who makes these law. Like I said, I'm not a Philadelphian attorney. I don't know, some of the people that come up with some of these laws never worked in the coal mine. But my final thing here is today is we don't need to cut dust samples. We need more of it. Thank you. MR. NICHOLS: Thank you, Chuck. Our next presenter is Larry Kuharcik. I may have butchered your name there, Larry. Also with the United Mine Workers of America. MR. KUHARCIK: Good morning. My name is Larry Kuharcik. I'm chairman of the safety committee, Local 1702, United Mine Workers of America. Before I get started, sir, I believe I can clarify something that I believe you said. When Mr. Taylor was up here, you said you never heard of a company denying miners rights if an inspector didn't carry an AR card. Is that correct? Did I hear you? Is that the statement you made? Well, I am standing proof in front of you, and the inspector's sitting in the crowd with us today. I was with him in the coal mine. He was already in the coal mine. The company was informed he did not have an AR card. I was called and told that my rights were denied unless I put myself on union business, my pay would be sacrificed and that the coal company wasn't responsible for my miners' rights, because he didn't have an AR card. So that is true. We do not get to escort an inspector without an AR card to have miners rights. Okay. Since I clarified that, you know I read this proposed rule. I read the preamble. And the only thing I could ask myself is why? So many things in the preamble was recommendations by the advisory committee was not put into the rule. One thing I want to talk about is engineering control. Engineering control, I'm here to tell you, can work. Engineering control does work. I work at Consolidation Coal Company's Blacksville Number II mine, and working closely with Mr. Pawnshrof in dust control with MSHA, several longwall panels ago, we had a drastic change in our air velocity. Our air velocity was raised to 650 CFM at number 10 shield and 460 CFM at the tail. Our panel was halfway out of the coal mine at that time. Consolidation Coal told us, I heard statements made to me, they're going to shut our mine down. We cannot do it. We cannot maintain these air velocities. When we get to the new two mel. panels, we're done. Well, you know something? We've been through several two mel. panels. We have never had a problem. Engineering controls do work. They can work. In fact, last week, I was up on that longwall face and I had over 700 650s required. So they proved to us that they can make engineering controls work. And that's leading me into this Airstream helmets. Sir, I respectfully disagree with you. To me, it sounded like you were downplaying the fact that this is only going to pertain to a few individuals behind a sheer. Well, those individuals need protection as much as everybody else in that coal mine. To raise the 2 to 4 for those individuals is ridiculous, in my opinion. It's uncalled for, because we're going to put helmets on these few individuals, they have lungs and lives like the rest of us in this coal mine. They need protecting. We should never, I cannot believe it, a few years ago, I'm sure many of you may have heard, a well-respected company doctor made a public statement, "there is no longer black lung in our nation's coal mines." That was in the newspapers. So that's the attitude the companies have. That told me that right then, when their doctor says there's no longer black lung. And by MSHA saying they want to raise the milligrams for even if it's a few , as you say, miners, is absurd. I did some research. At the Blacksville Number II coal mine, Local 1702, just in the last 10 months since September the 27th of 1999, 26 -- these are your forms, filed with the U.S. Department of Labor by the coal mine -- 26 of my fellow miners have traveled to Charleston, West Virginia, and have been diagnosed with the dreadful disease of black lung. In the past 10 months. 26 of them. The average age of these 26 miners -- this is scary -- is 49 years old. And yet MSHA tells me that they want to raise the milligrams of dust. Once again, sir, even if for a few, I'm exposing them to this black lung disease. Now that's not acceptable. That's uncalled for. I don't know where MSHA's coming from on this. I was going to go on to the 103 (f) but Joe did that pretty well, and I heard your explanation to him. So in closing, I want to tell you, whether it was budget cuts, MSHA department downsizing, no matter what the cause was, the United Mine Workers has always backed MSHA. And the United Mine Workers did not, and let me repeat, we did not back MSHA expecting any favors or special things down the road. We backed MSHA because it was the right thing to do. Now I'm challenging this board to do the right thing, and that is to go back to the table, sit down at the table, rewrite this proposal and incorporate the recommendations made by the advisory council to protect every man and woman in this country's coal mines. Thank you. MR. NICHOLS: Larry, do you want the reports you had put in the record? MR. KUHARCIK: Yes sir? MR. NICHOLS: Do you want the reports you were referring to or had in your hand? Do you want those as part of the record? MR. KUHARCIK: Yes sir. I made you a copy, all those, I'm sure your agency has it. But the coal mine must admit them to you. MR. NICHOLS: Okay, let's -- MR. KUHARCIK: These are the 26 in the past 10 months. MR. NICHOLS: Okay. Let's -- MR. KUHARCIK: And I have many, many more, but I thought that went far enough, 26 in 10 months, ridiculous. MR. NICHOLS: Okay, let me, while you're up here, let me say again, the agency's position on personal protective equipment. It is the agency's desire to never, never have to have a person use personal protective equipment, that the entire dust concentration problem can be engineered out. And that will be, that's a high standard to meet. That will be the discussion that takes place first. If the problem cannot be engineered out for the people farthest downwind, it is not our desire not to, not to have these people protected in some way. And that's where the consideration of personal protective equipment will come into play. MR. KUHARCIK: I understand that, but my point was when a coal company can petition you and say we have exhausted all engineering controls and we got to have these Airstream helmets, I told you about our velocity but raised and they told us that they could never do it, and they did it. They do work. Engineering controls work, and we should go use the helmets, but do not raise the level of milligrams for the person using the helmet. I can't accept that. MR. NICHOLS: Okay. All right. Let's use the example you gave that I'm petitioned as the administrator for the use of Airstream helmets. First thing I would do would go back and talk to Tim Thomson, the district manager and Paseroff and get their feedback on whether all engineering controls have been exhausted. If they tell me no, then request denied. One other commenter said we ought to have a meeting and discuss this before the approval for Airstream helmets is granted. I can guarantee you there'll be a lot of meetings and discussions on whether there are any other engineering controls that can be applied to these -- these people working downwind. MR. KUHARCIK: Well, my belief is today's day and age and technology, engineering controls, there's something out there we can do. If we tighten the curtains, if we make sure the stopping line is proper, if we do everything we're supposed to do, engineering controls will take care of the problem. We proved it at Blacksville when we raised it to 650 and we was told absolutely no way, and we're doing it easily. And so the Airstream helmets is not an answer and raising the milligrams is not an answer to put our people in that exposure. That's just my opinion on that, and I'm standing fast to that. I don't agree on that part at all. MR. NICHOLS: Okay. Thank you. Our next presenter is Wayne Conway, also with the United Mine Workers of America. MR. CONWAY: Ladies and Gentlemen, my name is Wayne Conway. I'm the safety committee person for Local 9909. You know, I was under the understanding that MSHA was actually going to take this program over. That you really weren't comfortable with the way the companies were taking care of their sampling process. Well, I'm not comfortable with what I've read, or should I say what I've tried to read. To me, it was kind of was maybe we spent more time on the format, setting this up so we could be confused versus actually finding some data to support we only want to do one sample out-by. Because it's actually, is it safe for me to believe that MSHA believes that people that are out-by aren't exposed to dust? You know, there seems to be maybe kind of like a lapse in time, that we're still going back to where the belt lines are short and they're small. We're dumping into coal cars. Only the top portion of that coal car is actually being exposed to people as it crosses the mine. Well, I'm here to tell you that these belt lines are a lot faster, a lot bigger, every piece of coal that's mined by in-by people is being exposed to out-by people. We're all on intake now. We're talking about miles of belt line now. And these miles of belt line have to be maintained. And I'm kind of curious, was there ever a mine-to-mine survey done, if nothing else, just using a Fireboss books to determine how many shifts people are dragging belts, how many people are shoveling belts, how many people are dragging returns, how many people are doing nothing more than track bolting, track cleaning. I'm just kind of curious. Was there any type of survey to that effect? MR. SCHELL: I can tell you what we did look at is the number of violations that have been issued both on operator samples and on MSHA samples out-by. And the reason that we proposed at least -- and the way we proposed that was we would sample those at least once a year. The number of violations that are issued on out-by DAs are very, very small. I think less than 20 a year. Another point I wanted to make, that didn't mean that we were only going to sample the out-by DAs. It would still be our policy to sample out-by areas and only, you know, the way the procedure is now, once we find high levels of dust out-by, the operator is required to incorporate that DA into their plan and then it's sampled. We would continue to do that. MR. CONWAY: But the word "designated" is kind of what troubles me. There's no set format on how we're planning on sampling out-bys. It says nothing more than "designated," which means actually nothing to me. MR. SCHELL: Okay, well the "designated" is the same interpretation we have that now. That's where we've already identified that as a dust-generating source and the operator then is required to list that in their plan as a dust-generating source. We would be required to sample that at least once a year. And then, in addition, we'd be sampling other out-by areas. And if we found those to be a problem, the operator would have to include those in the plan. So if your concern is that that may not be frequent enough, that's a valid comment, and that's something we need to consider. But we wanted you to know the reason that we said once a year was, we do issue relatively few citations at those out-bys, but your comments on our frequency are something that we need to consider. MR. CONWAY: Yeah, because, you know, the amount of people that it takes to actually maintain belt lines in today's coal mines is almost as great as the people who are working at the face. Engineering controls for those type of people, spray bars every mile apart. But you know if that's still a little bit too dusty, go ahead and order this respirator. It's not going to help you, because we don't have to pit-test you for it, but take it anyway while you're dragging. And that's the type of thing that the out-by people are working in. And like I said, there are so many more of them now then ever before, because like I say, we're being actually exposed to every piece of coal that's mined at that face. By the time it gets outside, someone has to maintain this. Like I say, there are just not enough people being tested, because your actual continuous monitoring could be established through the whole coal mine. Let's not just talk about face. There's no reason why it can't be done. Another point is I'm kind of curious, was there any survey done on the actual out-by people that are receiving black lung benefits or has received black lung? MR. SCHELL: Not that I'm aware of. MR. CONWAY: I think you'll find that the bulk of those people are out-by people. The last three people from my mine alone were out-by people, have never ever spent not one day at the face other than maybe having to go and do some out-by work. The reason I say it is my wife was one of them an she received 10 percent. MR. SCHELL: Well, that's a fair comment. We'll look at that data. MR. CONWAY: Like I said, it's not that we do not appreciate what your overall intent is, but we're going to have to live with this probably another 20 years before it's ever looked at again, so we need, you know, all the Ts crossed on this thing. Are there any questions? MR. NICHOLS: I don't think so. Okay. Thanks, Wayne. We're about halfway through the list of folks that signed up and wanted to present testimony. I think we're going to work straight through lunch, because I know some people need to either travel back and get to work or just travel back to their -- some distance to their homes. So how about if we take a break now until about 11:25, and let's try to get back on time and get seated and kind of quiet down so we can get started back on this hearing. (There was a brief recess.) MR. NICHOLS: You know we announced to the hearing this is going to be very difficult to determine when single shifts started and plan verification took over, so I need to do one thing here, if you'll bear with me. My attorney tells me I need to read a piece into the record on plan verification so I'll do that and you can continue to testify on both as we said earlier, this seems to be turning out to be one hearing, so, which is fine with us, but I do need to read one statement on the record. The plan verification proposal indicates that One, MSHA should take full responsibility for all respirable dust sampling for compliance purposes; Two, MSHA should verify ventilation plans at typical production levels and Three, MSHA should require operators to record production levels and dust control parameters to monitor dust levels. The MSHA rule would do all three things. Under the plan verification proposal, all the existing requirements in our regulations at 30 C.F.R. Parts 70 and 90 for underground coal mine operators to conduct respirable dust sampling would be revoked. MSHA would assume responsibility for all sampling to determine if miners are overexposed to respirable coal mine dust. This includes bimonthly sampling, abatement sampling, sampling to establish a reduced standard in mines where quartz is present, and Part 90 sampling for miners who have evidence of the development of pneumoconiosis. Since MSHA would conduct all sampling, the miners' representative would have the right to observe sampling with no loss of pay. Before approving ventilation plans, MSHA would conduct verification sampling under typical production levels, with only the controls listed in the plan in effect, and for the full shift. This would assure that miners are not overexposed to respirable dust. The results of these verification samples must be below the "critical values" listed in Section 70.209 of the proposed rule before MSHA would approve a plan. The proposal defines "full shift" differently for purposes of plan verification and abatement sampling and for bimonthly compliance determination. The proposal would revise the existing definition of "concentration" so that it is an eight-hour equivalent measure, even if the work shift is longer than eight hours. In addition, under the proposal, only MSHA samples would be used to establish a reduced standard in underground coal mines where quartz is present. This would change the existing procedure, which allows operators to submit samples which are averaged with MSHA samples. Finally, MSHA would allow longwall mine operators to use, on a limited basis, either powered air-purifying respirators or administrative controls when feasible engineering controls cannot maintain respirable dust levels at or below applicable standards. Coal mine operators must first request that the Administrator for Coal Mine Safety and Health determine that all feasible engineering controls are in place. If so, MSHA would grant the operator interim ventilation plan approval. However, the operator must implement any new feasible engineering controls which might become available. So we'll continue with the list of those folks that have signed up to testify. The next present will be Jack Rhinehart, also with the United Mine Workers of America. MR. RHINEHART: My name is Jack Rhinehart. I'm a 23-year veteran of Consol Black II mine. I served there for Local 1702 as a safety committeeman for 12 years, chairman of that committee, and also as president and vice president of that local. I now serve in District 31 as a board member for District 31 for United Mine Workers of America. I had four key points that I'd like to bring to you today and a summary of these issues. One, this eliminates the entire compliance sampling requirements in part 70 and 90, with no replacement for compliance sampling; two, drastically reduces the frequency of shifts sampled for respiratory dust compliance. This would be six times for miner sections, one time a year for the out-by workers, such as masons, beltmen. These gentlemen are exposed to dust also; three, would increase the dust exposure level above those contained in the Mine Act and current standards from 2 milligrams to doubled at 4 milligrams on the longwall face. Gentlemen, black lung is still a killer in the coal industry; four, prevents mine operators to replace engineering controls with respiratory protection or administrative controls on longwalls, which is prohibited by the Mine Act. Gentlemen, in my office, daily we have retirees who come in, and when they come in, they're carrying oxygen. These gentlemen worked long and hard, and some of these men never received any benefits from black lung. Thank you. MR. NICHOLS: Thank you, Jack. Our next presenter is Danny Clark, also the United Mine Workers of America. MR. CLARK: This is a surprise. I didn't really realize that I was on the list, but basically it's the same thing as what other people have been pointing out to you. One of the main concerns that we have at our mine -- I work at 84 mine and 1197, and our full shift sample is only 480 minutes, which doesn't work. If you're in there for a 12-hour shift, that's a lot more than 480 minutes, and you're not getting an accurate reading. I guess that's about it. I'll let somebody else go. MR. NICHOLS: Thank you, Danny. I can't make out the next name. Is it Tim or Jim? Okay. Come on up. Which is it? MR. ROBLACK: Roblack. MR. NICHOLS: Tim. Okay. MR. ROBLACK: My name is Timothy Roblack. I'm the chairman of the Health and Safety committee from Cumberland mine. I've been a sheer operator on a longwall for about 11 years. I've spent countless hours documenting the respirable dust program at our mine. I've also participated in numerous meetings management and union and MSHA to resolve our respirable dust problems. I also have testified at hearing in the past concerning respirable dust rules changes. The new proposed dust rule change will greatly weaken the respirable dust control throughout our nation. I will testify now, as I have testified before, that to eliminate CWP, Coal Workers Pneumoconiosis, or black lung, an entirely preventable disease, we don't have to isolate some strange gene or identify some unknown chemical. We know the causes. To eliminate the causes of CWP is to eliminate CWP, pure and simple. Good and enforced respirable dust rules will do that. Despite the mountains of paperwork and information I've received on this subject, the dust rules we need are elementary school simple. They are as follows: Dust sampling must be portal to portal, regardless of shift length. At our mine, our longwall and sections run shifts that can be eight, nine, 10 or even 12 hours. Respirable dust sampling must continue at its current rate or increase. Anything less is a reduction in our protection. MSHA must be allowed to single sample dust levels to spot check the levels of protection afforded to our miners. For example, about four years ago, our longwall was out of compliance. They did two sets of compliance samples. Finally, it came into compliance, but it was a very low reading of .9 percent average. MSHA came in and made a single sample and their average was 1.9. If MSHA had not stopped production and checked the dust parameters, we probably would have been out of compliance again. However, no action was taken. But the main concern was the single sample proved that our longwall was not dust-free, as we were led to believe from the company samples. And most importantly, the single sample prevented a part 90 miner from being assigned to that area. Safety committees and miners' reps must have input over all aspects of respirable dust control plans. For example, we have part 90 assigned to a longwall belt. The DA on this belt is in and out, in and out. After numerous meetings, phone calls, picking up -- plans by management, the miners' rep was finally able after a lengthy time to get the part 90 miner moved to a less dusty atmosphere. If the miners' rep were not there to have input into all aspects of respirable dust plans, this would not, definitely not have happened. A part 90 miner has to have all the protection afforded to him under the law. He's already paid his dues to the industry. The miners' representative being present throughout the whole respirable dust plans assures this. Continuous dust monitors. Extensive research and monies have been spent on their development. The miners believe this is a useful tool whose time has come. We believe this tool is useful, not for a compliance issue but to spot problem areas so they can be addresses as soon as possible. The sampling tools used today are the same basic tools used since 1969, 31 years ago. It takes about 10 days to obtain the results of a sample, delaying identifying problem areas. No other industry in this country uses the same basic tools to identify health hazards that were used 31 years ago. Airstream helmets must not be used in lieu of engineering controls. They are not a sealed unit. They are difficult or impossible to use in low height conditions. Their effectiveness is greatly reduced once you bend your head over by as much as 60 percent. It is also unknown how the fibers in the filters will affect the lungs as time goes on. Allowing companies to use Airstream helmets in lieu of dust controls is a travesty. I know that from previous face experience. If you have a respirable dust problem, you also have a float dust problem. They go hand in hand. To allow Airstream helmets in lieu of dust controls will allow companies to go to 4.0 milligrams. We'll be setting up, in our case, a longwall, for a condition -- float dust. Should ignition occur, a longwall would have biblical disaster proportions. Allowing Airstream helmets in lieu of dust controls will place our own industry in the same dilemma that we will be in when the noise rules take effect. The companies generally take the easy way out as far as noise regulations go, opting for hearing protection in lieu of engineering controls, thus placing the industry in a pickle come September 13th, 2000. Allowing Airstream helmets in lieu of dust controls will place the coal industry in the same type of predicament -- as they, management, has placed themselves as far as noise reduction goes. They always try to take the easy way out. To eliminate CWP is not complicated. The rules need to do this as stated above and must be enforced. I testified to the advisory committee in '96 that the -- and the proposed rules as they come down to us now, in kind words, are kind of a big disappointment to us in the mining industry. I ask, where is our protection? Under these proposed rules, how can we help our people should they come up with a respirable dust problem. Under these proposed rules, we have no way to help our people. Also, removing any criminal penalties also removes any type of leverage we have to ensure companies do what is required under the law to protect our miners. In summary, as a kid who grew up in the coal patch, my father and grandfather were both miners. The old-timers in my town had a lot to do with raising me. If you were a good worker and you performed good quality work, they took you under their wing. If you didn't, they didn't have anything to do with you. As the saying goes, it takes a whole village to raise a child. I knew that 40 years ago. The last dozen or so years, I've tried to make a difference in our industry. As I worked on a longwall every day, I tried to load as much coal as I could, I tried to do it safely, and I tried to leave the place a little better than I found it. As I walked away from our longwall in October 1999, I questioned myself, despite my efforts towards health and safety on our longwall, did I really leave it in better condition than I left it. You must ask yourselves, if these proposed rules are allowed to be implemented, did you leave the industry in a better condition than you found it? One of the reasons why I walked away from our longwall in October of 1999 throughout the course of my employment on the longwall, about the last dozen or so years, I lost about 30 percent of my breathing capacity. I'm an avid outdoorsman and I hunt in the mountains of central PA every year. I hunt with members from my camp who are retired from white collar jobs and are in their mid-60s and they have to wait on me because I can't keep up with them due to my breathing difficulties. It's probably too late for me, but I am testifying for the man who took my place. I am still trying to leave the place in a better place than I found it so that I may be worthy of those that went before me. I'm here to answer any questions. MR. NICHOLS: Thank you, Tim. Our next presenter is Mike Caputo, also with the United Mine Workers of America. MR. CAPUTO: Good afternoon. First of all, I'd like to thank the committee for this opportunity to speak here today. My name is Mike Caputo and I'm a 20-year -- 20 plus year coal miner, and I'm also a member of the West Virginia legislature. I'm a member of the house of delegates. I'm here for a couple of reasons today. The first, of course, being the health and safety of miners, but also as a state legislator I deal with all types of legislation, including many mining laws. So I've had firsthand experience with proposing, drafting and adopting rules and regulations to hopefully make life a little easier for the citizens of our state. For some time, we as miners have asked MSHA to get involved and to help make an unjust, one-sided and what most, with maybe the exception of coal mine operators, consider to be a totally unfair, unlevel playing field. The health and safety of the miner must always be first and foremost. We're not asking for anything special. All we want is what we deserve. That being fairness and equity. But to do this, many things must be mandated by law. As a legislator, it is my opinion that you have failed to do so in your proposal. Other than parts of the plan verification and single shift sample language, the rest of the rule is quite vague. As I read the rule, I also noticed that you failed to adopt major parts of what the Secretary of Labor's advisory committee recommended. It may be in the preamble, it may be in the question and answer section, but it is not in the rule itself. And I can tell you from experience that if every T is not crossed and every I is not dotted, the rule can and most likely will be challenged in court. If all of these things are not actually part of the rule, the document is not worth the paper it was written on. During our time in legislative session and throughout the year, I see many miners come to the state house for help. They need help because their lives have taken a drastic change. They have been stricken with deadly black lung disease. Many can't make it across the capital without stopping several times to catch their breath, and most are carrying portable oxygen bottles with them. They would hope, as I would, that the whole intent of this new rule is to make miners' exposure to deadly coal dust less, less than it was and has been in the past. But the rule seems to be going in the opposite direction. The 2.0-milligram standard can now be as much a 4.0-milligram standard. Miners are now going to be forced to work in a more dusty area by being forced to wear a powered air-purifying respirator with a NIOSH-approved filter. Can't you see this is a real problem? We have miners wearing these helmets right now, in my mine, because they feel threatened with a 2.0 standard. Now we are going to allow double the dust? How will this raise the miners' confidence? The other problem is the new NIOSH-approved filter. It fogs up the shield, because it restricts the flow of air too much. So now we will be having miners using cut up rags instead of filters. This will cause a higher number of black lung victims passing through Charleston, because adequate protection is not being provided properly. This is just one example of the flaws of this proposal. I believe MSHA needs to go back to the drawing board and one, follow the advisory committee recommendations and two, listen to the miners. We already have over 1,500 miners dying every year from black lung. That's about one miner every six hours, dying the most horrible death that anyone could ever imagine. And I don't know how many of you have friends or family that have died from this horrible disease, how many of you have sat and talked to those individuals, but if you want a real reality check, go into some of the coal mining communities, go to some of the black lung clinics and see what a horrible last few years of life these individuals has had to lead for working their entire lives in the coal mines. That is a reality check. It's comparable to a fish out of water. And I think if you go back and visit with these folks, you'll have a much better understanding of why the United Mine Workers have fought for so many years to clean up dust in our coal mines. Again, listen to the miners. This is a tool that is to protect their health and safety. It is not a tool to protect the bottom line for coal operators. Thank you very much. MR. NICHOLS: Thank you, Mike. Our next presenter will be Harry Powell, also with the United Mine Workers of America. MR. POWELL: Good morning, my name is Harry M. Powell. I'm with the safety committee at the Cumberland mine, District 2, Local 2300. Joe Main spoke earlier about the confusion that miners have concerning the MSHA proposal. There is confusion. I haven't read it yet. I haven't seen the whole thing yet. And nine chances out of 10, whenever I do get the opportunity to see it, I still won't understand it all. However, what I do understand and what I do know about is when is running a sheer and wearing a dust pump pass after pass after pass. That is where my expertise lies. Being a former assistant fire chief and being able to move fire and smoke with water, I said to myself on one of those many, many faces up and down that face, surely I can move dust the exact same way. U.S. Steel Mining Company, who owned Cumberland Mine prior to Cypress, prior to RAG, had a program which was called the Score program, whereas, if you came up with an idea that would enhance and increase productivity, you were awarded a check anywhere from $1,000 to $15,000. I came up with an idea of controlling dust basically the same way I was able to control smoke as a fire fighter. Our dust samples were under 2.0 consistently for a number of passes, for a number of samples. As a matter of fact, I can honestly say that I wore a dust pump for weeks upon weeks at a time trying to find out how this was done. What the company allowed me to do, what the company allowed the United Mine Workers to do for a very brief instant in history, was allow the United Mine Worker to control the dust parameters and to have full run of modifying and putting any kind of controls on the sheer. What the company did was they went back to the basics. They allowed the person who was running the machine to dictate and say where the problem lies. The first check that I received from U.S. Steel was for $9,750. The general manager and superintendent and I and the president of U.S. Steel Mining Company became close friends. We were on a first name basis. I also had the phone number of the president of U.S Steel Mining, call me anytime Harry, whenever you want. I was given an ultimatum. If the longwall stayed in compliance for six months, I would receive another check. Not if you or your crew remained in compliance, if the longwall remained in compliance for six months, you would receive another check, I was told. Needless to say, my second check was for $6,649.50. And I have to add that Disney World is quite lovely at that time of the year. The speed limit on most interstate highways is 55 to 65 miles per hour. However, some of us, through human nature, intend to travel 70 to 75 miles per hour. Our dust levels now are at 2.0. If they're allowed to go to 4.0, we all know how human nature is. I hope I am not naive in thinking that MSHA will protect and watch over miners. I've only been on the safety committee a little over a year. What I ask is that the dust levels do not be permitted to go to 4.0 milligrams, and in addition, that dust sampling not be reduced by MSHA. Thank you very much. MR. NICHOLS: Thank you, Harry. Our next present will be Mike Ayers, also with the United Mine Workers of America. MR. AYERS: Hi. My name is Mike Ayers, A-Y-E-R-S. I am a member of Local Union 1702, District 31, 29 years mining experience, 25 years underground. I had some written comments here. I'm not going to bother to read them. Most of you, you've been hit with the same ones over and over. The one question I have, and reiterate what Joe and Mike Caputo said, if it's not in writing, if it's not part of the rules, who's going to enforce it? I've heard Marvin make comments, and Ron, and George, how they would do it, but are you going to be here forever? None of you is planning on to retire? No one plans on dying? We need it in writing. We need it in black and white. Your answers. I'm comfortable with your answers, but whoever is in control is who sets the policy. If you're gone tomorrow, there may be a different policy. That's all I have to say. MR. NICHOLS: Thanks, Mike. It we put it in writing, do we have a deal? MR. AYERS: Ask Joe. MR. NICHOLS: Joe's shaking his head yes. Our next presenter will be Randy Bedillion. I may have butchered that name also. MR. BEDILLION: It's closer than a lot of people get. MR. NICHOLS: Okay. Also with the United Mine Workers of America. MR. BEDILLION: I've got 25 years in the mine this year. When I started back in 1975 at Valley Camp, of course the mining site rules were all different, and I used to see this guy standing in that dust and in the last years that's went by, even on the wall, I've seen these dust parameters drop, which is a plus, and it's due to the controls. And I was going to ask about, I was going to ask George that a statement he had made earlier that if a sample comes at 1.71 or under, that area's not to be sampled again, if it goes beyond the 2.0, that area is to be sampled again. Am I correct on that, George? It's what you're saying now, but where does it say it in black and white that that's the way it's going to roll? MR. NIEWIADOMSKI: Well, the, the reference to the 1.71, that's in the rule and it basically identifies the criteria we're going to use to determine whether or not that plant should be approved or rejected. There's nothing in the rule, that's correct, that says exactly how is it that we're going to be doing compliance sampling, what levels are we're going to be citing and what levels are we're going to be actually going back to resample. That's not in the rule, that's correct. That would be in our, which they are, in our inspection procedures. MR. BEDILLION: And then again, those procedures, when the guys that are in charge today go, those procedures could change by the next guy coming down the line. MR. NIEWIADOMSKI: Those procedures could change, yes. MR. BEDILLION: And another point I want to make. I've seen companies do this, and it's more or less like the snowball rolling downhill. It don't do nothing but get bigger. And I don't feel that our samples ought to go beyond the 2.0 to 4.0, because the next thing they're going to ask for is 6.0. And whether we put an Airstream helmet on or not, that just gives them a scapegoat, and that's my beliefs on that. I think that's a part of the rule that we don't even need. They can, like Brother Harry said, they were out of compliance with their methods, that they have the modern technology now and they can get back in compliance. And it don't make my lungs any worse. That's all I've got. MR. NICHOLS: Thank you, Randy. Our next presenter is John Ealy, also with the United Mine Workers of America. MR. EALY: I've got a letter here, which I think I'm going to submit to you, okay? I'm not going to take time to read it all. I've worked at Cumberland Mine now for and 23 years, about 24 years underground. Used to work the face, and now I work out-by, spend a lot of time on the belts. I calibrate CO monitors and take care of the AMS systems primarily in the mine. And one thing that's been bothering me pretty much all day is the technology, I believe, is there to have continuous monitoring systems on the dust control plans. I've been at Brewston with Joe Main and talked to some of the people in NIOSH and, like I said, I believe it's -- the company had no problem finding a way to have an AMS system in a gas-filled environment and moisture and all the other rock, dust and salt when they wanted to raise the methane level from 1 percent to 1.5 percent in return. And I believe it's just a commitment that they have to make to be able to make that available for us. And like Tim said, it takes quite some time for a dust sample to actually come back, where if we could continuously monitor this condition, I think we could better control what happened to us in the immediate future, you know. I think it's time that we could try to do something like, that's one of the areas, I guess, that everybody has said everything else I'd like to say, which I don't need to and I'm not going to take time to do that, but Tim made also a good point there. Just, you know, talk to yourselves. I know you don't work in the mines, and the black lung is still alive and well in the coal mines. And through all these proposed rules, search your soul a little bit and make sure that you're leaving it better than it was. You know, I mean everybody has to do it on an individual basis. I'll leave this with you, and thank you for your time. MR. NICHOLS: Okay. Thank you, John. Our next presenter will be Larry Steinoff, also with the United Mine Workers of America. MR. STEINOFF: Hello. My name's Larry Steinoff. I work for the RAG company at the Emerald Mine, Wayneboro, PA. I've been here since November 1978. I'm currently employed as a UMWA mine examiner, and I also have my system- mine certification for Pennsylvania. I started my mine career in the Sanford Mine in Bobstown in April of 1974 at the age of 19. In my 26 and-a- a-half years of mining experience, I've operated many types of mining equipment and have done many different job classifications, both at the face and out-by areas. Since I've been at the Emerald Mine, I've spent six and a half years on the mine rescue team and also five years on a fire fighting team. I am currently vice president and also the chairman of mining health and safety committee for our Local Union 2258. To start with, the proposal dust rules, they are very confusing to me, to say the least, and very complicated to understand. I am a miner who needs to understand rules. To start with, MSHA proposed to sample face area people 480 minutes a shift six times a year, which totals 2,880 minutes a year, which is 48 hours per year. And our out-by people only once per year. As you can tell, I'm not a speaker, I'm a nervous wreck. At our mine, our current work schedule consists of 10-hour days six days a week 50 weeks a year. This totals up to 3,000 hours per year, or 180,000 minutes, which under the current proposal would leave 177,120 minutes, or 2,952 hours per year the face people work that are not sampled for respirable dust. At the present time, -- operators are required to sample face people at least 30 shifts per year, and under the proposed rule, we don't have to. The MSHA funding for the dust sampling is not even guaranteed at this time. Continuous monitoring systems. With the push of a button on my computer telephone, I can send information to any part of the world in a matter of seconds, but they say continuous monitoring is not present at this time. I have a hard time believing that we do not have the technology and capabilities to do this. The same way we monitor methane, CO and air current in the mine, this needs to be done so that when dust levels exceed the legal limits, adjustments can be made at that time and not days or weeks later. The same precautions we currently take for ventilation of methane in the mine so that when trouble is spotted, it can be handled and corrected. And I am also troubled by the part 90 in the proposed dust rules for our miners and that the dust level could be raised from the current 1 milligram to 1.26 milligrams. To protect these individuals, the current regulation of 1 milligram should be cut in half, and more if needed. I believe MSHA needs to seek new methods of controlling dust in mines. Engineering controls are not out of reach. The most trouble I see in -- is not maintaining what we currently have. Water spray systems, air current and velocities. Our coal companies spend millions of dollars on longwall face equipment and they can produce as much coal as possible and make their huge profits and bonuses. I say spend some of the money on controlling engineering. The reason we have the Coal Mining Health and Safety Act of 1969 is very clear and simple to me. Too many miners in the course of their employment were either injured, killed or suffered long-term effects of float coal dust and other hazards and then would die a very slow and painful death. The key issue here is preserving the health and the safety of our coal miners. I've seen a lot of improvements in the mines in my 26- and-a-half years as a coal miner, but I believe that for the most part that the new proposed dust rule is not one of them. I believe that somewhere along that line that MSHA has forgotten the most valuable of all resources, the coal miners. We are currently mining six to seven million tons of coal per year, and any way you cut it, that adds up to a huge amount of coal float dust. Miners' representatives participation. I was very concerned about not being able to afford the opportunity to represent some 400 coal miners of our mine when sampling occurs. We are elected to serve them as their mine health and safety representatives and they not only expect us to represent them and to participate in anything that could lessen their chance of injury or illness, they deserve it. We are the ones who give this country electric power we need for today's demands. For this, we get proposed higher dust regulations and fewer samples taken. In closing, I would recommend that the recommendations of the advisory committee appointed by the Secretary of Labor to be considered concerning these proposed dust rules, because I believe we all want to see the same result. The health and safety of the miners, both men and women, mothers and fathers, brothers and sisters, who give this nation our most valuable resource, coal. Thank you. MR. NICHOLS: Thank you, Larry. Our next presenter will be Bob Kurczak, also with the United Mine Workers of America. MR. KURCZAK: My name is Bob Kurczak. I represent the United Mine Workers of America, Local 1570, Federal Number II mine, and I'm a member of the mine health and safety committee at that mine. I just want to touch on one specific issue, and the reason I'm doing this is I was directly involved in the continuous dust monitoring pilot program that was ran at our mine. The continuous monitoring of coal mine dust, which would provide instant information on dust levels and record dust levels over a long period of time has long been a demand of miners. These devices would provide miners with invaluable information on levels of unhealthy coal dust in their environment. With limited dust samples under the proposed new rule, this would be vital in recording dust levels miners are exposed to. Results from coal dust samples can take days to process. Instant information is needed so prompt action can be taken to control unhealthy coal dust levels. The advisory committee recommended development, testing and immediate deployment of such monitors. The advisory committee concluded that continuous monitoring of the mine atmosphere and the control of dust parameters offered the best long-term solution for improving the existing federal program to prevent black lung among coal miners. Over the past years, machine-mounted systems have been developed and tested in a number of mines, and which I mentioned, we had a system at our mine. I will admit this, the thing did have some problems, but I was assured, I was in contact with the people from NIOSH, and they told me that these things could be corrected. As a matter of fact, the government agreed to issue a contract to complete the work on this system, and for some reason, MSHA and NIOSH did not follow through with this plan. In closing, I would like to say that the Mine Act gives MSHA the authority to issue technology-driven rules. It is clear that if MSHA does not issue such a rule requiring these devices, they will never get into the coal mines. Thank you. MR. NICHOLS: Thank you, Bob. Our next presenter is Chuck Hayes, also of the United Mine Workers of America. UNIDENTIFIED SPEAKER: He did his earlier. MR. NICHOLS: Okay. Then our next presenter will be Nancy Dorsett, and my note says WVA. MS. DORSETT: I'm going to sit here, because I'll never reach that microphone. My name's Nancy Dorsett. I'm a graduate student at West Virginia University in the department of mining engineering. I also spent 18 years working underground, five of them on a longwall. Necessity is the mother of invention, and if we do not demand engineering technology, it won't be produced. If we give the operators a way not to improve technology, then there will be no demands from the operators to the mining vendors to improve levels of dust, water control, design and shields. And we have run into that problem with the hearing rules and the noise rules. By allowing personal gear to go in the place of engineering technology, we have set back noise control in the underground coal mines. The stone and quarry people are much further ahead of us in noise control. So if the operators cannot -- do not demand that the vendors change, then there will be no change, there will be no new technology, and we'll all be wearing Airstream helmets before long. Thank you. MR. NICHOLS: Thank you, Nancy. Our next presenter is Red Knicely, also of United Mine Workers of America. MR. KNICELY: My name is Red Knicely. I'm a 25-plus-year coal miner. Ladies and Gentlemen, I know what black lung is, seeing as to how my grandfather, father and three uncles were lost to this disease. For you all to cut sampling to six times a year, when we produce coal at our coal mines an average of 900 shifts a year, we produce coal around the clock six days a week. The conditions change hourly when we're producing coal. Barometric pressure, temperature, you know, we can't control it within eight hours, and you're telling me that you're only going to sample it six times a year. That's not acceptable. We're going backwards. Is somebody going to be standing here in favor of you 30 years from now talking about me succumbing to black lung? No, I think not. Those changes that you're proposing diminish the protection miners already have. So like I said, black lungs is going to be on the increase instead of the decrease. We, the miners, have been trying for years for more participation in the dust sampling program. The miners being the ones that suffer and fall victim to black lung, we should have input, but the rule contains no standard providing miners' reps with increased rates in this procedure. You all said that we could travel. If an inspector does not have an AR card, we have no rights. This is, I'm talking at the union mines. Nonunion mines are even less. We have a NIOSH investigation going on now at our coal mines, you know, for different stuff underground that we feel is harmful to us. We cannot even travel with them, Ladies and Gentlemen. I have to remove myself, put myself on union business to be able to travel with them. The miners have been asking for continuous dust monitoring. The rule contains none. The advisory committee recommendation number eight called for this rule. In closing, all one has to do is visit the hospitals, the clinics within the coal fields to see what coal dust will do to a man and his family. To go back -- we need to eliminate black lung. Thank you. MR. NICHOLS: Thank you, Red. Let's break until 12:30. That's 10 minutes. (There was a short recess.) MR. NICHOLS: Okay. Let's get started back. Our next presenter will be Rick Altman, also with the UMWA. Is Rick in here? Rick Altman? . MR. ALTMAN: I'll be brief. I just have a couple questions. On what is it, number six I think, on the faces, if they can't come into compliance we'll go with the air helmet. Has anybody given thought to, let's say this goes on for a couple panels. UNIDENTIFIED SPEAKER: They can't make it. MR. ALTMAN: They can't make it. Once again, they're granted the air helmet. Over here on another part of the mine, they have it mapped out for a 1000-foot face, 10,000 feet long. Now, they've got to submit a plan for that. Is there any reason why that plan would then be permitted. If they can't meet the requirements at this point in time, why would a plan then be granted if they can't meet the parameters. Would it be? Or I guess my question is would it be granted? MR. NICHOLS: I don't seem to be having any luck with Airstream helmet issue. Do you want to try it? MR. SCHELL: You know, our initial sense was that we were going to push engineering controls as far as we could. Only if engineering controls, only if they had all been implemented and didn't work, would we go to either administrative controls or recals (phonetic). If that goes on for some period of time, I think it may likely be that the agency would consider things about production. But that would not, the way we structured the rule, production was not one of the initial considerations that we made in terms of whether you would go to administrative controls or to recals. So that may be something we need to consider. So your comment's well placed, but I would think after some period of time, that is something we'd have to consider. MR. ALTMAN: Well, my reasoning for this is nobody submits for a shortened face. Everybody submits for a longer one and further out, right? A deeper panel, a longer panel. How many of these mines that have submitted for a longer and deeper panel have subsequently submitted that they can no longer meet these requirements and want the Airstream helmets? Do you know? MR. SCHELL: Not many, I'm sure. MR. ALTMAN: Apparently there must be some, because there's a heck of a lot of people using them apparently. And when I read it, I was reading about the epidemiology studies, there's really not a whole lot on that in what you gave out, and there's -- you can't find it on the Internet. MR. SCHELL: Restate your question. Maybe I missed your question. That you just stated. MR. ALTMAN: Oh, the studies? What you have, or what I received, I'm sure that's not the complete study. I mean the excerpts that you gave us, I'm sure that's not the complete study. Is that correct? MR. SCHELL: That's correct. MR. ALTMAN: I couldn't find it anywhere to be able to get the complete study. And I'm sure really that there should be good reasons that we should be able to look at those also. A lot of people here today, here's the sad part. Scientific background, technically we don't have. We are the guinea pigs, we are the rats. We are. Except we stand upright. And I've sat through I don't know how many of these. I've listened -- and I think you were down here in Morgantown a few years ago on the diesel regs. I think you were there. MR. SCHELL: I don't think I was. MR. ALTMAN: Okay. Well, I apologize. And here's, here is, I guess the part that infuriates me the most. We come down and we say what we think we feel we know, okay? They're not a person here that's got an M.D., a Ph.D. Well, maybe there is, I don't know. Okay, I take that back. We are the best case studies in the world. Time and time again we fall on deaf ears. We fell on deaf ears during the diesel. What do we know? We're dumb coal miners. We're not that dumb. Now here we are once again. There's no operators. I have yet to hear anybody from any coal operator come and speak dot. They have said nothing. So if nothing is said, I take that as a good sign that they think this is basically pretty good. What you hear is, from the people here, and we're telling you that this kills us, okay? It kills us. And I'm not a betting man, all right? But I'll bet this. I'll bet this falls on deaf ears, and I'll bet nothing goes on and I'll bet we'll die. I'll look around this room, and there will be people here that I have worked with, people here that I have met, people here that I call friend, and they're going die if you people right here, Alan, Ron, Larry, everybody else, Rebecca, don't finally step in and say, look, these are the people that we have to protect. And I have yet to see that happen in a very long time. And I'm not brand new out of the gate. I've been around long enough. If the operator says we want a longer panel, if they can't meet the air, stop it. It's a done deal. If they're out of a job, we're out of a job, you're out of a job. It's that simple. We're all out of a job. Nobody wants to be out of a job, but nobody wants to die. You're in an office. We're underground. You do the studies. We do it real life. We deserve, really, for once, to be heard, to be recognized and for the things that are said and the things that are done to be put forth as credible evidence, and we'll never get that. That's really all I've got to say, other than really, like, for once, give us a break. Thanks. MR. NICHOLS: Okay. Thank you. Dennis O'Dell has asked to give additional testimony, and he can do that, so Dennis, come on up. MR. O'DELL: Good afternoon. My name is Dennis O'Dell. I am an international health and safety representative for the United Mine Workers of America. I have 25 years experience in mining. In 1996, I stood before you and spoke as a rank and file miner. Today, I stand before you and speak as a representative on the international staff. I would like to thank the committee for this opportunity on what I believe may be one of the most single most important issues that deal with the miners all across this nation. We, meaning miners, who are under the jurisdiction of the Department of Labor Mine Safety Health Administration have always been very grateful for the protection that your agency has had to offer us. By far, we know that we are blessed with what is known throughout the world as probably having the safest coal mines to work in. And a lot of this should be, and is, credited to your agency and the inspectors who are on the ground every day trying to enforce the code known as C.F.R. Part 30 which is used for protecting miner safety. With saying that, it also needs to be pointed out all of us -- when I say we, I speak of everybody in this room -- have missed a part of the Act somehow in failing to protect the health of the miners. Miners today are still dying, not just from roof falls, fires, explosions or other mine-related injuries, but miners are still dying of health-related illnesses such as black lung. I truly believe that you were trying to do something somehow to fix this by producing this proposed rule that we have before us, but unfortunately it's fell short in getting done what you've attempted to do. This proposal, as you've heard today by many who have testified before me, is considered to be quite complicated and considered to have fell short of the mark. Many people, for example, the miners, lawyers, representatives and the general public are not really sure as to what it says. To further complicate the issue, there was a limited time to digest and to try and understand exactly what you are saying with this proposed rule. The biggest most single question I keep hearing is what is the actual rule and what is just preamble or Q and A's? What is enforceable, what is not? The preamble addresses a lot of things but, as we are all aware, inspectors, the very guys that are on the ground trying to enforce the law, cannot say to preamble. Judges will and will continue and have implied that if it was intended by the law, then why wasn't it made the law. Does anyone in this room remember what happened with the new ventilation regs. Do you remember the nice little blue Q & A book that was given to everyone. Well, it ended up being nothing more than just a document used for bathroom reading. That's about all it become worth. It wasn't something that could be used for enforcement. Has anyone in here ever seen a citation using the blue Q & A book in the body of the citation as to what the company violated? And I think you'll find the answer is no. That's what I not only fear but what I know will happen with this new proposed dust rule. Another need is to fix the exposure limits. We went from a mindset of asking for a 1 milligram standard four years ago to now giving up a 2 milligram standard and possibly allowing as high as a 4 milligram standard. We asked for samples to be taken for entire shifts at the 2 milligram standard, and you gave us an entire shift sample with a 2.3 milligram standard, we think. And the flexibility for the operator to be in excess of 115 percent of the quantity specified in the plan, and to allow exceeding the production levels as specified in the plan by 32 percent. And if I read it right, it's not until 33 percent of the production shift's exceeded that triggers a new plan verification, which I may add, is at the discretion of the MSHA district manager. Where are the gains for worker protection here? Another point. Once the operator submits his plan to the district manager, the district manager will give the operator what is called a provisional plan approval to operate under until such time as an MSHA inspector can come to the mine and sample. We have over 700 plans that will have to go through this process, so it's going to be a while before they can get to all these mines. Then, MSHA will call the operator and tell them the day and the time that they will be on the property to sample, which to me, is prior notification, no matter how you look at it. Why? If the field offices have all this collection of data on a mine in their districts, based on past history of dust sample inspections and the district manager feels comfortable giving a provisional plan approved by telephone or e-mail or whatever -- you get the picture -- and it's okay to operate under this plan until MSHA can sample, then please answer in my maker's name, why do you have to notify the company you're coming? You tell us on one side that this is the best thing since the creation of sliced bread, yet you don't feel comfortable enough to go to the mine unannounced with the very thing that you've approved. But I don't know why that would be a problem, because, guess what, on the date of the verification sampling and the operator doesn't have in place what he has submitted, it's no biggie, because one, he can adjust his parameters at that time or two, he can make no adjustments. In other words, whatever it takes for the operator to comply on that date, he is going to be allowed to do. And it doesn't matter, because MSHA is not going to cite the operator. MSHA's just going to let them try it over again until they get it right. I'll tell you, this type of brute enforcement would really scare Mr. Profit Coal Company to shake in his shoes. And you'll have to forgive me, but I stole that quote from my 11-year-old daughter when I explained this part of the proposed rule to her. Now what about the miners' participation? Do you realize that right here in Morgantown, West Virginia, just across the hill, we're in a dogfight at this very moment at Consol's Leverage Mine to have 103(f) walk around rights recognized for the mine fire investigation? In 1997, MSHA came out with some inspection codes, for example, AFD, that aren't clear as to if we have walk around rights or not. We believe we do, but we're awaiting a more clearly defined answer by a higher authority. The bottom line is the company said we don't and MSHA's not sure. Does anyone in this room think that the operators won't challenge our participation on this rule? They've already stated publicly that they think we don't have the right, and why shouldn't they challenge it? It's mentioned in the preamble, but it's not mentioned in the rule. This needs to be fixed before a rule is released so that there is no mistake to the so-called intent. You need to address all the miners' activities the advisory committee has recommended, such as the verification visit, where miners and the rep should have the same paid 103(f) walk around rights. The miners' participation in the interim of the operator dust sampling program. That should be increased to provide assurances that a credible and effective dust sampling program is in place. Miners designated as representing the miners should be afforded the opportunity to participate in all aspects or respirable dust sampling for compliance at the mine without loss of pay, as provided by the section 103(f) in the Federal Mine Act. Miners reps should also have the right to participate in dust sampling activities that will be carried out by the employer for verification of dust control plans at no loss of pay. Miners reps should also have the right to participate in activities involving any handling of continuous dust monitoring devices or extraction of data for continuous dust monitoring devices without loss of pay. We need to bring that back. The point that was raised by the advisory committee where miners reps should receive training and certification. That's not been brought up today. To conduct the respirable dust sampling paid by the employer, miners reps should be afforded the opportunity to do that without loss of pay. I sat in the back early on, so I'm not sure if Mr. Nichols or Mr. Schell have addressed all these points that I brought up, so I'm being repetitive on some of the things, please forgive me. A question that comes to mind is that somebody had said, if it's in the preamble, that's what the entire implied intent was. MSHA can't write regulations on themselves, I heard somebody say. But I think if you look in here, you'll find several places in, or some places in part 30 where MSHA does have regulations on themselves. If I'm wrong, please correct me. The Airstream helmet issue. I'm curious. I wonder if we're trying to cross a fine line, because it sounds like what you're doing is you're going to mandate a work practice. And let me clarify what I mean by this. If we have a miner that's found to be in an area where Airstreams are required and he doesn't have that Airstream helmet on, will MSHA cite the plan? And if you don't, it leaves -- and if he does cite the plan, it leaves that miner open for disciplinary action against the company. Now that's a two-fold problem, because miners sometimes fill in at last minute for other miners on these jobs. So this individual that may have been fine without an Airstream helmet may not have been properly trained, may not have known, because he's not the regular person that works there on a day-to-day basis. There's been press announcements by MSHA that they are taking over compliance dust sampling programs. Exactly where in the proposed rule is that standard that miners can read? What legal and finding guarantee exists to ensure miners that MSHA will be doing the compliance sampling they say they will be doing? Since MSHA has stripped the entire compliance dust sampling procedures from the rule, then how are miners supposed to know what the rules are? Why has MSHA no rule to conduct compliance by monthly samples for the full shift? What is the production level required on the MSHA -- when MSHA conducts compliance samples and when they conduct abatement samples. Specifically, what rule will cover that? Part 7100 A and B and part 9100 states that mine operators has to keep miners' respirable dust level at or below 2 milligrams and 1 milligram out-by the working faces for the part 90 miners. Does MSHA plan to raise those compliance levels on sampling for miners' exposures? If so, exactly where can miners find that specific standard in the proposed rule or in the preamble. The specific sections in part 70 and 90 that was eliminated from title 30 should be re-entered into the record? Miners no longer have standards to rely on, and miners have no intention to eliminate the dust sampling program. It's important to do compliance sampling often. If not, the verified plan will fall off to the wayside. As a representative of thousands of miners, I have been asked to come before you today to ask you to go back to the table, fix the problems that I and many of the other miners today have raised, show us where these will be guaranteed black and white fixes, show us how this will be funded by the government so that we will not lose everything in the end, because we all know it's an election year. Administration changes, all kinds of things can happen. And truly do something that will end this deadly killer called the black lung disease. Thank you. MR. NICHOLS: Thank you, Dennis. I think we understand your comments. Joe Main has asked for some additional time to further comment on the proposals, and Joe, come on up. MR. MAIN: I tell you, this whole dust rule's got me about wore out folks. I don't know who else has been sleeping with this thing, but it's enough to drive a crazy man crazier as the saying goes. I wanted to have an opportunity at the end of the day just to clarify some issues and to let you know we'll be dealing with additional issues as we go into the hearings and probably be spending some time on plan verification, I would say probably in Kentucky, and walking through that. I think one of the difficulties that we all had, which I expressed and some of the other miners expressed here is that there is such a vast volume of information contained in those proposals, that it almost blows the human mind to try to sit down in the course of 30 days to read that and figure that out. And that's been one of our dilemmas. And as Dennis and myself and Tom Wilson and Jimmy Lamont and Judy Woodlan our lawyer and everybody else, we've been trying to clarify all these issues that's came to us from our folks who have heard things in the news, who have read parts of the proposal and, you know, haven't had a chance to put it all together. And I do appreciate the opportunity, Ron, that you guys have shown us to sit down and asked a series of a lot of questions to try to get focus. But nonetheless, everyone has to understand, there's a whole lot of miners out here that really don't understand this rule yet, and that bothers me, because it really is some very substantive changes. And I read off real quickly. There's probably, you know, 20 issues that's affected by this rule one way or the other. And some good and some not so good, in our opinions. I think, too, that MSHA should not be surprised that there was not a great rush to go out here to support this package, for a number of reasons. One is that there have been issues that the mineworkers and miners have had on the plate for reform for many, many years. And we've not been bashful about those. And we went to the Carter administration, and we went to the Reagan administration and we went to the Bush administration and to the Clinton administration trying to get those fixed, and it was, you know, a continual plea to fix those things. And I only speak through the voices of the miners. And what I try to represent is what the miners put into my head through visits to mines and sitting down and discussing these. So sometimes an issue will get labeled as a union issue or a Joe Main issue. I'm here to tell you there's a whole lot of issues that miners claimed a stake to that I just speak on behalf of and for those that, you know want to get a misunderstanding of what's going on here. These are the miners issues that we what to have on the record before it closes. It's just a ton of positions and statements by the miner's that's going to reflect that. And I think you will see that through out the hearing process. As Dennis finished up talking about, you know, the implementation of this proposal, there is an election coming, there is people going to change, and though there's certain people in government that I have come to trust and to respect when they say something's going to be done, to the extent they have the power to do that, there's different people I do believe that that's, you know, take it to the bank. The problem is, myself and most of the folks sitting around here over the course of the rest of a lot folks' mining careers, we're not going to be here, and this is all going to be turned over for someone else to apply and interpret. And to the extent that a lot of this package is contained in policy preamble and contained in discretion of the agency, even in the rules themselves, it would be wrong of me to tell my folks that I represent that they could trust that as being the standard, because I know better. I've been through some experience and Marvin and I could share a lot of war stories here about a lot of those where things have changed. And I'm going to go back to 1980 when we came out of the same arena, just finished up a public hearing on comments, and the agency had announced a final rule and had announced these promises that they were going to implement on miner participation and developing the continuous monitor. And to this day, I stand here and those are nonexistent. And to this day, miners have asked me over and over again, Joe, when are we going to get this, when are we going to get that? And I just keep saying, we're trying to convince the government here about what you folks really need and want to try to figure out some way to get that framed into people's mind. Because at the end of the day it's the miners who eat the dust and the miners who have been on that long list of victims that's, I don't know, hundreds of thousand long over the years that we've mined coal, and it's those miners that, who had their families affected that deserve some real stake in deciding how that coal mine is going to be run to get them out of that dust. And so worker empowerment is really, it's not a rhetorical issue, it's a real issue that we believe needs to be captured by a good set of rules. And I was very disappointed to see that, at least in what we had thought was coming out of the advisory committee recommendations, that those were not captured. We were disappointed in the fact that what we thought was laid out, I think a fairly decent script for the agency to move forward beefing up its role and then to actually take over the mine operator program, at the very least doing the frequency of sampling that they were doing, but we had hoped for more. And we'd also hoped for this magic continuous monitor that I swear has been so elusive over the years, to be brought in to where miners could actually see the dust levels generated in the workplace, and we all come to realize that we may not be able to use that for a compliance tool that is sure a helpful tool to give, empower those miners so they know what dust levels that they're in. And it's a powerful tool to empower the mine management folks at the mine to know, you know, when they're creating and generating dust that needs to be controlled. I'm going to probably wrap up talking about the continuous monitor, but to get back to the policy issues, after the hearings closed, we didn't get the rules, and some amazing things happened. There were some policy changes in this agency where decisions was made to reduce the actual dust inspections that MSHA was conducting at coal mines. And I think that was probably around '82 -- I'll go back and I'm going to have that all sorted out before the record closes -- but on the heels of hearing all these miners talk about how bad this dust program was and we left it in the hands of the operators, did far less sampling, the agency made a policy decision to reduce dust sampling at coal mines. And that same policy decision that happened back then could easily happen two or three years down the road when someone else could say things are going better, we don't need to spend all this money sampling the dust environment. And that's very troublesome. We've been there before and we do not want to repeat that bad decision that was made. We talk about the ventilation regs, I know Dennis raised those earlier, and I remember when we were in a big debate over bleederless gobs, and that was sort of like one like engineering controls for longwalls that people just sort of wanted to stay away from in a way, but I remember the commitments made to our organization and to miners that, don't worry, we're never going to let those bleederless gobs get used in a gassy mine. In October of 1998, I had this petition for my vacation come across my desk, and Jeff Duncan when he was still with us, and we said, what the heck. And it was a petition to raise the gas levels at a longwall mine to 4 percent and using a what they called a purging process. I don't know how many of you read that, and Marvin, you may have, but it never got finalized because much later, in November, the mine was closed down by a fire. And we took a look at that mining plan, and low and behold, on a two-entry mining system in this country where an operator by his claims in a petition had got behind on development and went to MSHA and says, we need an approval to cut this panel off, and the agency did that, connected over to the tailgate side on a two-entry system, and they had a bleederless gob, which the inevitable was going to happen, it kept gassing off to the point that they now wanted a 4 percent standard instead of the -- they were operating on some scheme that I still never understood that they were having about 3 percent of methane load up on the face. Now I went back to the assurance that I had with the district manager, and the message I got is, that won't happen again. Well, it did happen the first time, after we were told it wouldn't happen in a situation like that. And that's going to be revisited, I think that this last episode of the Willow Creek explosion that happened, but it was the same mine that all this happened at, the one that blew up last week. So, you know, what this tells us, the history tells us that you cannot take for granted the words of folks in the government, that they be well-meaning, well-intentioned, to be the way things are. And that's the reason that it has to be in the rule. I know miners across the country have complained about trying to get something done at their coal mine, but they're told by the MSHA officials, well, if it's not black and white there, we can't do it. And we know that. We've heard that. It's been a constant message. And understanding that, while we have a chance to influence what regulations come out, we shouldn't be dumb enough on our end to agree to standards that puts us in that gray area that does not give us clear-cut standards. On respiratory protection, there's been a lot of discussion about that, and I have been troubled for quite some time and I've raised this with industry and I've raised it with the government that I think -- set aside the discussion on respirators for longwalls as alternative engineering controls. We have a serious problem with our respiratory protection in this country for the normal miner who is on a section, whether it's a continuous mining section or a longwall, that we fail to have the kind of quality respiratory protection that we really need to implement Section 202(h) of the law. And my belief is what we need to do is spend a lot of energy building a better respiratory protection system that's worker-friendly, that does work for the miners, that when we do go in and out of compliance, that there's something there that miners can actually wear. And that is a standard by which the protection is not mandatory. That is a section where the standard, rather, calls for the respiratory protection to be provided if the miner desires to use it. And I think, as we said in the advisory committee, we've got to do a much better education job than what we've been doing on dust controls and using the respiratory systems. But we've got to give the miners something that's comfortable for them to wear. I mean you look at a miner today running around where we almost got part of them in uniforms and suits like they are space people, and we need to rethink that model. We don't need to be replacing engineering controls. We need to be designing better quality respiratory protection to fit within the scheme of Section 202(h). With regard to continuous monitors, at the 1976 convention of the mine workers in Cincinnati, Ohio, for a few of us who are still around, there was a lot of discussion about what it would take to fix the dust sampling program, and one of the issues that came out of that convention, which rounded up being a discussion point the '78 hearings, was the application of a continuous dust monitor in coal mines that would measure the dust on a constant basis and give miners a constant knowledge of what those dust levels were, for the obvious reason, miners want to know what dust they're in. And I think they're owed that, given the tragedy of this industry. And so began the activity to build a continuous dust monitor, which started, I guess, actually in the late '80s -- or in the late '70s. The pledge was made by the government in 1980 that we're going to aggressively pursue the development of that, and it has peaks and valley over the years. It got attention again. That was one of the main issues that was addressed at the 1991 congressional hearings. There was a piece in the dust task force recommendations to build a continuous monitor. And both NIOSH and MSHA, I think, began to aggressively pursue that in the mid-'90s. What was so disheartening -- and I have been involved in that process, and I think I'm as familiar as anybody is from the outside about what was going on -- but as we were closing the deal, as the saying goes, to finalize the development of a device that had proved to operate to the point that it could accurately reflect the dust levels, but it had failed because the machine just wasn't hardened enough to withstand the machinery. And I recall the meeting that we had in Washington, D.C., and it was in February of 1999, and the industry was there, Labor was there, NIOSH was there, MSHA was there. And there was a whole discussion about where we're at with the testing and the status of that device. And as the meeting completed, there was general consensus amongst all of that room that contracts needed to be developed to go back and harden those units to finalize the testing process. But for some reason, that has had confusing answers since that February meeting. We later found out that the government had abandoned the finalization of the development of the continuous monitors. And we've heard different reasons of why that happened. We heard different theories about where this whole thing was going. But for somebody that's been around this debate for 20 years, I am totally beside myself as to why, on the very edge of finalizing this device, that the government abandoned the final steps. And I believe firmly that we knew enough out of the testing of those units that it's technologically feasible to do that. I think the government has stated that, both NIOSH and MSHA. The fact is we just haven't got the units built and in machines. It takes a regulation to pull that off. And if the government hedges its bets and doesn't go that final step to require regulation to implement it, no miner out there will ever see that device. Maybe as a test program somewhere in some mine. But that continuous monitoring aspect that we thought was going to be part of the finality from the advisory committee and what we've hoped and put our trust in the government to build and get in the mines, we still don't have it in the year 2000. And I'm marveled, I'm one of these science nuts and I watch these little robots take air measurements on foreign planets -- I mean planets -- out in the universe, and I set back and say to myself, if we can do that, we can't finish up this dust monitor to monitor coal mine dust? I mean there's just something illogical about, you know, the whole science of that. We're going to be submitting documents to the record, one of which is going to be a letter from both myself and BCUA on positions taken with regard to the continuous dust monitor. And I'll just read this one excerpt that was contained in a letter to both labor and industry. "The current model demonstrated that feasible technology exists for a continuous real time dust measurement instrument. Further, the device was as accurate as the current measuring system and was used by miners and supervisors to gauge changes in dust levels and adjusting engineering controls." That means something. And it means more than, I think, what the proposals is giving it credit for. And yes, we are very disappointed that we're here in the year 2000. That was a trek we started 25 years ago, and we got to the edge, to the point where we're ready to deliver on that, and it disappears, and the government's now saying, "sometime down the road." The proposals with regard to sampling of miners and plan verifications, I think is confusing, and I was the first to admit, it took me a while, and the of gracious of Ron and a few others to, like, clear up how that process worked, and we tried to pass on to our folks, but I think there are some things that were said here today that still may be left in a state of confusion in some folks' minds, and I think it's important to clarify it. I think it was Gene Davis that asked the question about, if that verification sample passes that 1.71 test and that's the first verification test, is the testing over for that MMU? And the way I read the law, it is. And there is no other verification test, unless three or four things happen, and I forget exactly what all they are, but those were all discretionary decisions of the government to decide whether there's even any verification test to be applied. There's no magic figure there that automatically says that you go back into plan verification I know of. And I may be wrong on that. Now, having said that, that MMU has been, by one test, verified to be a test that will operate to protect that miner, with the backup being the bimonthly examination, which will only be six shifts a year out of, I think Red raised 900 shifts a year to mine. And, you know, from the standpoint of does this make logical sense to have that kind of a system in place that you're placing all that guarantee on the limited dust sampling that will take place? And that sample will only be a 480-minute sample. It won't be a full shift sample, on the compliance sample that will be taken, regardless of the length of the shift that Red's now working, okay? And if you go step back and say, what was the advisory committee, when they crafted this plan, really thinking of? What they were thinking of was a government takeover of the operator plan at the very least having, you know, the frequency of sampling, which was not six months -- or six shifts a year, and not having one shift out-by in the coal mines, which is another major problem in itself that I think it totally unacceptable to miners and to the mine workers. It was having a plan verification system that really worked, backup sampling by the operator, which we all agreed as part of the advisory committee was still a necessary component, not for compliance sampling but the backup verification. There would be a continuous monitoring system here to help fill those voids. And if you looked at that whole scheme, and what we wound up with in this rule, when I look back and say we haven't got that continuous monitor piece, we haven't got the operator backup plan verification piece, we're down to six samples, and if they make it they're gonna waive one verification test. And that's, I'm just being honest, that's just not where we thought that this rule would ever wind up. And I think a lot of miners, like I say, don't understand that, and it's because of the complexities of the rule. But it's a process by which, if you step back and say, is this package we have today worth trading it out for what we currently have, with the changes that have been made, and realizing in my own heart that this is the last reform that's going to take place in coal dust sampling throughout the rest of these miners' careers? I say the answer is no. And the reason we filed that lawsuit, again, was to force out some specific changes that miners wanted. Not just notations in a preamble saying we're doing all these things, which takes care of addressing the union's issues here. It was to get meaningful changes that miners have sought for many, many years. So at the end, if there was folks that was disappointed about what we may have viewed about this proposal, I think we have to look at the context of what the expectations were and the hard work that was put into this whole operation for a quarter of a century by the union and the miners to get there, and this is, no, this is not the finish line that we had planned to get to. With regard to the MSHA takeover, I remember one conversation, I think this was at the advisory committee, it was in Lexington, and I think, Ron, you had proposed a monthly scheme, if my memory's correct on -- and I'll go back and figure that out for clarification purposes for both of us -- but you had said what about once a month, 12 samples a year? And that was rejected by the advisory committee as not being sufficient enough. I mean I think there's a lot of history where the advisory committee was on record saying no, we did not want to go in that direction. As far as PELLs, one of the testifiers pointed out that, you know, there was discussion about going to one milligram, and I know there's this proposal that's been hanging out there for three years that calls for a 1-milligram standard. This is the direction of which the advisory committee had sought to go. The advisory committee had addressed this issue very clearly about adjusting the PELL upwards for this, and I forget what the magic words is we called this, but, uncertainty, okay? And the advisory committee said no. And basically what they said, two is two, one is one, and we should be doing that. And I think from the miners' standpoint, it makes all the sense in the world that we should not be passing two, that we should not be passing one, and that we should be ratcheting that backwards as opposed to upwards. And one way to ratchet it backwards is to listen to what the miners had to say, samples always for the full shift. Use that to determine what our full measurement is, and thereby, you'll get some automatic readjustments downward with people that have greater exposure. So many more things I'll address at some of the other hearing coming up, but I just wanted to give you a good, you know, understanding of what this is all about. This is not that we're upset with any individual or thing, this is real policy here that's about to be made that affects these miners for the rest of their life, and there's real issues that miners have put on the table that they have expected the government to do on their behalf. And this is, like I say, the third trip. I mean we're wearing ourselves out talking about it. And we do envision the days that we'll have the 4B4s back again making policy decisions, cutting inspection down to one or two samples a year. It's happened before and it'll happen again. With that, I'll be presenting a lot more documents in the record and be providing some more information throughout the hearing process. MR. NICHOLS: Okay. Thank you, Joe. That's the last of the people we had signed up to make presentations, but I believe there's some people that came in after lunch maybe to just talk about the plan verification rules. If that's the case, then if you would sign up, or anybody else that wants to make any comments on these two proposals, we'll be glad to take those. Let's take a break until, say, 1:40 and come back and see if there are those that want to make presentations. (There was a brief recess.) MR. MYER: Mr. Chairman, my name's Fred Myer. I feel honored to be here to talk to you all. I've spent 47 years on the ground working for Consolidation Coal Company. Most of my generation has either had black lung or got killed in the coal mine. We are here today to ask you to help us because you're going to make recommendations to other people, and we're asking to help us with these recommendations. Black lung is a serious disease to have. The reason I know that is some of friends have had black lung, and they're not here to be able to talk to you all. Whenever you go, whenever you get the opportunity, there's a General Hospital over here, there's a Ruby Hospital over here. You need to go and just visit and see these people with these black lung problems. It's not very funny. It's serious. And you've got a thing going on here for 31 years, we've been making appeals to you all. It seems like we're knocking on the wall but we're not getting through. It's -- the ball is in your hands, because whenever you leave this committee, you're going to make recommendations that we're going to have to abide by . For 31 years, we've been abiding by it, we've been doing what's right, and we've been abiding by the law, but now it's time for you all to help us a little bit. The coal miners have a saying, the squeaky wheel gets the grease. You got the squeaky wheel out here in the audience appealing to you all to help us. Joe Main has made his plea time and time again. Dennis O'Dell has made his plea. But we need your help. It's time for the government to take a stand. We're not in Poland. We're not in Russia. We're in the United States. If we can't control this problem, who in the name of God can? The Bible says, we have not because we ask not. Today, we are asking. We're not demanding nothing. We're asking and we're pleading for your help. And I want to take this opportunity to say thank you for allowing me to talk. MR. NICHOLS: Thank you, Fred. That's all the people we have signed up to speak. Is there anyone else that would like to give testimony? Some of us will be here until 5:30 today and until noon tomorrow. The hearing will remain open until then, until noon tomorrow. We're going to take a break now until 3 o'clock, so thanks, thanks for your participation. (Whereupon, at 2:00 p.m., a recess was taken until 3:00 p.m. this same day.) MR. SCHELL: It's 3 o'clock, and we are reconvening these public hearings on single sample measurements and plan verification. Is there anybody in attendance that would like to address the panel at this time? Let the record show that there was no response. We will recess until 4 o'clock. (Whereupon, at 3:00 p.m., a recess was taken until 4:00 p.m. this same day.) MR. NICHOLS: This is Marvin Nichols. We're back on the record. It's 4 o'clock. There's still no one present to present testimony, so we will keep the record open until 5 o'clock today and reopen again in the morning at 8:30 and keep it open until noon tomorrow. (Whereupon, at 5:00 p.m., the hearing in the above-entitled matter was adjourned until August 8, 2000, at 8:30 a.m.) // // REPORTER'S CERTIFICATE CASE TITLE: MSHA AND NIOSH JOINT SINGLE SAMPLE PROPOSED RULE HEARING DATE: August 7, 2000 LOCATION: Morgantown, West Virginia I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Department of Labor. Date: August 7, 2000 Debra Anderson Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005-4018