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 c