IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES ) Pages: 1 through 314 Place: Prestonsburg, Kentucky Date: August 10, 2000 UNITED STATES DEPARTMENT OF LABOR IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES ) Holiday Inn Highway 23 Prestonsburg, Kentucky Thursday, August 10, 2000 The parties met, pursuant to the notice, at 8:30 a.m. BEFORE: MARVIN NICHOLS, Moderator APPEARANCES: Panel Members: RON SCHELL, CHIEF, HEALTH DIVISION COAL MINE SAFETY AND HEALTH LARRY REYNOLDS, OFFICE OF THE SOLICITOR CAROL JONES, DIRECTOR OFFICE OF STANDARDS, REGULATIONS AND VARIANCES GEORGE NIEWIADOMSKI MINE SAFETY AND HEALTH SPECIALIST COAL MINE SAFETY AND HEALTH THOMAS THOM, CHIEF, DUST DIVISION PITTSBURGH SAFETY AND HEALTH TECHNOLOGY CENTER JOHN KOGUT, MATHEMATICAL STATISTICS OFFICE OF PROGRAM, POLICY AND EVALUATION APPEARANCES: (CONT'D.) PANEL MEMBERS: REBECCA ROPER, SENIOR HEALTH SPECIALIST OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES RON FORWARD, ECONOMIST OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES ALSO IN ATTENDANCE: PAUL HEWETT, INDUSTRIAL HYGIENIST, NIOSH EILEEN KUEMPEL, SENIOR PHYSICAL SCIENTIST, NIOSH RODNEY BROWN OFFICE OF INFORMATION AND PUBLIC AFFAIRS PAM KING OFFICE OF STANDARDS, REGULATIONS AND VARIANCES I N D E X PAGE JOSEPH MAIN, UNITED MINE WORKERS OF AMERICA 24 TOM WILSON, UNITED MINE WORKERS OF AMERICA 38 DARYL DEWBERRY, INTERNATIONAL EXECUTIVE BOARD MEMBER, 59 UNITED MINE WORKERS OF AMERICA, DISTRICT 20 WILLIAM BOLTS WILLIS, CHAIRMAN, MINE HEALTH AND 80 SAFETY COMMITTEE, UNITED MINE WORKERS OF AMERICA LOCAL UNION 8843 BO WILLIS, PRESIDENT, UNITED MINE WORKERS OF AMERICA 89 LOCAL UNION 2274, DISTRICT 20, SUBDISTRICT 28 RANDY CLEMENTS, PRESIDENT, UNITED MINE WORKERS OF 94 AMERICA LOCAL UNION 2368 RICK GLOVER, UNITED MINE WORKERS OF AMERICA 102 LARRY TOLLIVER, CHAIRMAN, SAFETY COMMITTEE, UNITED 124 MINE WORKERS OF AMERICA LOCAL UNION 1713 DANNY SPARKS, PRESIDENT, UNITED MINE WORKERS OF 129 AMERICA LOCAL UNION 2232 RICKEY PARKER, CHAIRMAN, SAFETY AND HEALTH COMMITTEE, 137 UNITED MINE WORKERS OF AMERICA LOCAL UNION 2368 RALPH LONEY, UNITED MINE WORKERS OF AMERICA LOCAL 147 UNION 2232 ERIC BARNES, UNITED MINE WORKERS OF AMERICA 148 TOM SWEETEN, CHAIRMAN, HEALTH AND SAFETY COMMITTEE, 154 UNITED MINE WORKERS OF AMERICA LOCAL UNION 1545 THOMAS KLAUSING, UNITED MINE WORKERS OF AMERICA 161 LOCAL UNION 2161 J.R. PATSEY, UNITED MINE WORKERS OF AMERICA LOCAL 172 UNION 1713 LARRY PASQUALE, UNITED MINE WORKERS OF AMERICA 176 LOCAL UNION 2133, DISTRICT 20 I N D E X PAGE WILLIAM CHAPMAN, PRESIDENT, UNITED MINE WORKERS OF 180 AMERICA LOCAL UNION 1793 RICKEY KORNEGAY, EXECUTIVE BOARD MEMBER, UNITED MINE 181 WORKERS OF AMERICA, DISTRICT 20 REGGIE STALLARD, UNITED MINE WORKERS OF AMERICA 185 LOCAL UNION 1760 WILLIAM SAWYER, SAFETY COMMITTEE, UNITED MINE WORKERS 188 OF AMERICA LOCAL UNION 1926, DISTRICT 20 TOM MESSER, UNITED MINE WORKERS OF AMERICA LOCAL 205 UNION 1760 TERRY HUNTER, CHAIRMAN, SAFETY COMMITTEE, UNITED MINE 208 WORKERS OF AMERICA LOCAL 1926, DISTRICT 20 GARY TRAMELL 214 EDMOND COOK 222 CHUCK WILSON, PRESIDENT, UNITED MINE WORKERS OF 225 AMERICA LOCAL UNION 1545 MAX KENNEDY 229 JIM BRACKNER, UNITED MINE WORKERS OF AMERICA LOCAL 242 UNION 2245 BILL CAYLOR, KENTUCKY COAL ASSOCIATION 245 DAN SPINNIE, UNITED MINE WORKERS OF AMERICA LOCAL 259 UNION 2161 STEVE WOLFE, UNITED MINE WORKERS OF AMERICA LOCAL 263 UNION 1969 KEITH FLOWER, CHAIRMAN, HEALTH AND SAFETY COMMITTEE, 266 UNITED MINE WORKERS LOCAL UNION 2397 DAVID MCATEER, UNITED MINE WORKERS OF AMERICA 291 SAFETY REPRESENTATIVE, JIM WALTERS NO. 4 MINE I N D E X PAGE GREG MAHAN, PRESIDENT, UNITED MINE WORKERS OF AMERICA 292 LOCAL UNION RANDY KLAUSING, CHAIRMAN, SAFETY COMMITTEE, OLD BEN 298 COAL COMPANY DWIGHT CAGEL, HEALTH AND SAFETY COMMITTEE, UNITED 307 MINE WORKERS OF AMERICA LOCAL UNION 2397 MIKE NELSON, UNITED MINE WORKERS OF AMERICA LOCAL 310 UNION 1867, DISTRICT 20 P R O C E E D I N G S (8:30 a.m.) MR. NICHOLS: Good morning. Can you hear me in the back? Can you hear okay in the back? ALL: Yes. MR. NICHOLS: Okay. Good. Good morning. My name is Marvin Nichols. I'm the Administrator for Coal Mine Safety and Health with MSHA. I'll be the moderator for today's public hearing. On behalf of Davitt McAteer, the Assistant Secretary for MSHA, and Dr. Linda Rosenstock, the Director for NIOSH, I want to welcome all of you here today. This morning we will begin the public hearings on two proposals which were published on July 7 in the Federal Register, the joint single sample proposal and plan verification proposal. Your comments here today will be included in the record with both proposals. Let me introduce our panel. To my left is Ron Schell, the Chief of the Health Division for Coal Mine Safety and Health, and to my right is Larry Reynolds with the Office of the Solicitor. Behind me we have Carol Jones, Director of MSHA's Office of Standards, Regulations and Variances; George Niewiadomski, Mine Safety and Health Specialist, Coal Mine Safety and Health; Thomas Thom, Chief, Dust Division, Pittsburgh Safety and Health Technology Center; John Kogut, Mathematical Statistics, Office of Program, Policy and Evaluation; Rebecca Roper, Senior Health Specialist, and Ron Forward, Economist, both for the Office of Standards and Regulations and Variances. Because the simple sample is a joint MSHA/NIOSH proposal, Paul Hewett, Industrial Hygienist, and Eileen Kuempel, Senior Physical Scientist, are here from NIOSH. Rodney Brown from MSHA's Office of Information and Public Affairs is also present at the hearing. Rodney, raise your hand. Rodney is in the back. He will provide press kits for the media in attendance and will be available to answer any press inquiries. We also have Pam King from MSHA's Office of Standards, Regulations and Variances. Pam greeted you when you came in. If you have not signed in yet, please see Pam, or if you wish to speak to get your name on the list of speakers. MALE VOICE: Sir, we can't hear in the back here. MR. NICHOLS: You can't hear? Can you hear me now? MALE VOICE: Yes. Sounds good. MR. NICHOLS: Okay. Good. I finished up with Pam. Raise your hand, Pam. If anyone wishes to speak that's not on the sign up sheet, please see Pam to do that. Let me talk a little bit about how the hearing will be conducted. The formal rules of evidence do not apply, and the hearings are conducted in an informal manner. Those of you who have notified MSHA in advance will be allowed to make your presentations first, and following these presentations others, others who request an opportunity to speak, will be allowed to do so. I would ask that all questions regarding these rules be made on the public record and that you refrain from asking the panel members questions when we're not in session. A verbatim transcript of the hearing is being taken, and it will be made 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 sitting to my left. We will also accept additional written comments and other appropriate data on the proposed rule from any interested parties, 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 identify them. When you give them to me, I will identify them by title as being submitted for the record. Once again, Pam King sitting at the back at the door has an attendance sheet that you may wish to register your presence here today. To allow for the submission of post-hearing comments and data, the record will remain open until September 8, 2000. As you may know, we held a hearing on Monday, August 7, in Morgantown, West Virginia. We have another hearing scheduled for Salt Lake City on August 16 from 8:30 a.m. until 5:30 p.m. or, excuse me, 5:00 p.m. We scheduled this hearing to run all day today, and, if necessary, we'll continue tomorrow morning. Before we begin, let me give you some background on the proposals we're addressing here this morning. First, the single sample joint proposal. In it, the Secretary of Labor and the Secretary of Health and Human Resources announced their proposed finding in accordance with the Federal Mine Safety and Health Act of 1977 that the average concentration of respirable dust which each miner in the active workings of the coal mine is exposed can accurately be 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 Eleventh Circuit on September 4, 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 non-compliance when the applicable respirable dust standard was exceeded. As most of you know, the single sample issue has been through a long public process, which is outlined in the preamble to the proposal. That process ended with the September 4, 1998, ruling by the United States Court of Appeals for the Eleventh Circuit. The Court vacated the 1998 joint finding concluding that the record contained no finding of economic feasibility and that MSHA failed to comply with Section 8811(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. MSHA believes that single shift, single sample measurements are more protective of miner's 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 non-metal mines in this country. The coal mining community had the opportunity to experience use of single full shift measurements for a two year period in 1992 and 1993 and from May, 1998, until September, 1998, when the Court of Appeals vacated the agency's finding. We're interested in your comments concerning the application of single full shift samples at your mine during those two periods. 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 addressed health effects, develop a quantitative risk assessment and the significance of risk. We're seeking your comments on this proposal as well as on plan verification. The plan verification proposal is based in significant part on recommendations contained in the 1996 report of the Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis. That report was based on the studies and discussions of representatives from labor, industry and neutral experts. They believe that if the recommended changes were made, black lung disease could be eliminated, and confidence would be restored to the federal program to control coal mine respirable dust levels. The plan verification proposal adopts three key recommendations of the advisory committee. One, MSHA should take full responsibility for all respirable dust sampling for compliance purposes; two, MSHA should verify ventilation plans at typical production levels; and, three, MSHA should require operators to record production levels and dust control parameters to monitor dust levels. Under the plan verification rule, all the existing requirements in our regulations at 30 CFR, Parts 70 and 90, for underground coal mine operators to conduct respirable dust sampling would be revoked. MSHA would assume responsibility for all sampling to determine if miners were overexposed to respirable coal mine dust. This includes bimonthly sampling, abatement sampling, sampling to establish a reduced standard in mines for quartz as present and Part 90 sampling for miners who have evidence of the development of pneumoconiosis. Since MSHA would conduct all sampling, the miners' representative would have the right to observe sampling with no loss of pay. Before approving ventilation plans, MSHA would conduct verification sampling under typical production levels with only the controls listed in the plan in effect and for the full shift. This would assure that miners are not overexposed to respirable dust. The results of these verification samples must be below the critical values listed in Section 70.209 of the proposal before MSHA would approve the plan. The proposal defines full shift differently for purposes of plan verification and abatement sampling and for bimonthly compliance determination. The proposal would revise the existing definition of concentration so that it is an eight hour equivalent measure even if the work shift is longer than eight hours. In addition, under the proposal only MSHA samples would be used to establish a reduced standard in the underground coal mines for quartz as present. This would change the existing procedure, which allows operators to submit samples which are averaged with MSHA samples. Finally, MSHA would allow mine wall mine operators to use on a limited basis either powered air purifying respirators or administrative controls when all feasible engineering controls cannot maintain respirable dust levels at or below the applicable standard. Coal mine operators must first request that the Administrator for Coal Mine Safety and Health determine that all feasible engineering controls are in place. If so, MSHA would grant the operator interim ventilation plan approval. However, the operator must implement any new feasible engineering control which may become available. In response to comments we got at our Morgantown hearing, we'd like to spend just a few minutes outlining in greater detail the major provisions of these rules. Ron is going to give a short presentation, and then we'll begin taking comments. MR. SCHELL: Would you just give us a second to set up? Some of the guys in the back, there are some chairs up here if you'd like to come up in about the second or third row. This would be a good time to do it. (Pause.) MR. SCHELL: Can you guys hear me in the back? Can you hear me now? Is this better? ALL: Yes. MR. SCHELL: Okay. I'm just going to have to hold this. Guys, I'm going to try to make this short. We're doing it based on a request that came out of the hearing in Morgantown. I hope all of you can see the charts up there because I'm not going to take the time to read everything that's on this chart. The thing I do want you to know -- move to that next slide, would you, John? What I do want you to know is the way we've set this up is on the left-hand side are the current requirements under the rules, and you guys are familiar with that. Then on the other side of the chart what we've done is put the new requirements so you can sort of visually get an idea of what the current requirements are and then how we're proposing to change those requirements in this rule. Like I say, I'm going to try to keep this short. Go ahead to the next one. Basically there are four things that we're doing with these proposed rules. We're addressing effective plans, we're addressing compliance with these plans, we're addressing monitoring of plan effectiveness, and we're addressing abatement. The point I want to make, guys, is mining isn't like any other industry. In most industries the first thing you do is you go out to sample to determine if there's a hazard. We don't have to do that in the mining industry. We know that when you cut coal or when you transport coal, coal dust is being generated, and that coal dust, whether it be respirable coal mine dust or quartz dust, can be unhealthy for you, so you have to start out recognizing you have to control dust. What keeps miners healthy are dust controls in place that limit your exposure, and those controls have to be in place every shift because you're going to be exposed to that hazard every shift, so to us the key of these new rules are to have an effective control plan that works and have an effective control plan that works every shift. I'm not saying that monitoring isn't important. It is. Monitoring is key to making certain that that control plan continues to work. MALE VOICE: The mike is out. MR. SCHELL: The mike is out? MALE VOICE: You're back on. MR. SCHELL: Back on? Can you hear to me now if I don't touch it? MALE VOICE: Yes. MR. SCHELL: Okay. I'm going to pretend like I'm eating this. You guys in the back, if it goes down yell at me again, would you? Again, controls are keys to protecting you guys. Monitoring ought to tell us if those controls are working. Abatement ought to assure us that those controls are working, so in this proposal we are really focusing primarily on getting effective controls and making certain those controls are placed every shift that you're working. On average -- on average -- you guys work 400 shifts a year. We want you to be protected on 400 shifts a year. How are we proposing to have effective plans? Again, like I say, this is key to these regulations. Simple. We want dust control plans in place that limit your exposure to acceptable levels. Secondly, we want those dust controls in place so that you're protected even at the upper limits of production. What these rules say is from now on we want those dust controls to protect you for the full shift, not just for the eight hours that we were sampling in the past. The key to this proposal, and you guys all know what an average is. Somewhere in the middle. You've got the low and the high, and the average is somewhere in the middle. Right now we're verifying those plans at about 60 percent of the average. Sixty percent of the average. We're proposing that in these rules we're going to make sure that those plans work above the average. A key ingredient. To make sure we know it's working above the average in terms of production, we're going to require operators to maintain records on what the production is on every MMU so we can go in and see what the production is. Lastly, or, excuse me, next, we're going to verify those plans. MSHA is going to verify the plans through full shift sampling at the upper limits of production, and the only controls that the operator can have in place when we're verifying are the ones specified in the plan. I know some of you here I've had discussions where we've had conversations about the operator having controls greater than those in the plan in place when we sample. Verification sampling. They have to reduce those controls to what they say is in the plan. We give them a range of up to 15 percent above because we know we can't always reach 100 percent. Another key point. That plan has to be verified on both the high risk occupation, the designated occupation, and on continuous miner sections on the roof bolting, and we don't just look at respirable coal mine dust. We look at respirable coal mine dust, the two milligram standard, and we look at quartz separately, so that plan has to be verified on total dust and on quartz, 100 micrograms of quartz. That verification sampling could take anywhere from one to ten shifts or even more because again it's got to be at high production with only the controls specified in the plan in place. We do have a provision in there that says if we can't verify that plan on long walls -- if we can't verify that plan on a long wall -- and all engineering controls are in place, we will consider the use of PAPRs, airstream helmets or administrative controls downwind of the shear operator. Only downwind of the shear operator. You have to control to the standard to the shear operator. With people going downwind, we recognize there might be some occasions where they aren't protected. There we're going to consider PAPRs and administrative controls. A plan is no good unless it's in place every shift. MALE VOICE: The mike is out. MR. SCHELL: Back on? MALE VOICE: No. MR. SCHELL: Let me try this again. Can you hear me back there? Okay, guys? Now? ALL: Yes. MR. SCHELL: A plan is no good unless it operates every shift. So what are we going to do to make sure that that plan is operating every shift? We're going to do what we currently do, and that's require mine operators to check that plan before production on every shift. The difference? What they're going to be checking is that plan that's been verified at the upper limits of production with only the controls listed in the plan in place. In addition to that, we're going to continue to check it when we check to make sure the operator is doing their on shift examinations during our regular inspections, but we're going to be there six times a year sampling where we're going to check it, and when abatement sampling occurs MSHA is going to do that abatement sampling. We're going to be looking to make sure they're doing their on shift examinations. Also, we're going to be looking at their production records because if we see that their production is way above what that plan was verified at, they're going to have to go back and reverify that plan at that higher production. The key, guys. You've got to have a good plan that protects you. You've got to have that plan working every shift. That's what we're trying to do with these rules, and we're really soliciting your comments on what we can do to make that more effective. How are we going to address monitoring? Marvin mentioned that we're going to assume responsibility for all compliance sampling. The key to that is that sampling is no longer -- compliance determinations under that sampling are no longer going to be made based on averaging low dust samples with high dust samples. We're going to use single sample determinations. Each sample stands on its own, so if one of those samples exceeds a standard a citation will be issued. No more averaging. Significant improvement, guys. The rule does propose that we continue sampling only eight hours like we're doing now. We have, however, asked for comments as to whether or not we ought to be conducting full shift sampling during compliance sampling. The reason we went with eight hours is since the primary purpose of that sampling was to tell us whether that plan continues to protect you or not, we thought an eight hour sample would give us a good feel because, remember, we're there so we're going to know what dust controls are in place. We're going to know what the production is because we're doing the sampling. That doesn't happen now with operator sampling because we're not there. We don't know what's happening, but we are soliciting your comments on whether MSHA compliance sampling should be full shift sampling. Also, when we sample we won't just sample one occupation for five shifts. We're going to sample at least five occupations on the MMU for one shift, so we're going to be sampling six times and taking five samples. Right now the operators sample one occupation. They do it on five shifts. We will, as the operator does, sample the roof bolter six times a year, and we'll sample those designated areas near the MMU six times a year just the way the operator is doing now. Likewise, we'll be sampling Part 90 miners at the same rate that operators do now. There is one difference. The outby DAs. We're proposing that we sample those once a year. Right now the operators sample them six times a year. The reason we're proposing that is if we look at the data we issue very few citations on outby DAs. Remember, I said we're going to be sampling it at least once a year. If we've got a problem DA, we're going to be sampling it more than once a year. Again, a key ingredient we believe to MSHA taking over all compliance sampling is we're going to be there. We will know what the dust controls are that are in place. We will know what the production is. We will be able to assess the adequacy of that plan every time we sample, again going back to my point. The way to protect you guys is good plans that work every shift. Abatement. Abatement sampling. Right now operators do abatement sampling. We don't know what the dust controls are in place. We don't know what the production is. We're proposing to change that. MSHA will do the abatement sampling. Because we're doing it, you have a right to participate in that abatement sampling, a right that you don't have currently. Also, abatement sampling will be based on single sample measurements. Again, no diluting high exposures with low exposures. When we sample on an MMU, we'll sample all five occupations, not just the occupation that was out of compliance. If it's a DA, we'll sample that DA, and compliance will be made on the basis of a single sample measurement. Production will be higher than when operators sampled, and, key, we will sample the full shift on abatement sampling. If you're working ten hours, we're going to sample ten hours. We want to be comfortable when we finish that abatement sampling that that plan works to protect you on every shift. I keep coming back to that, guys, because that's the key, the way to protect your health; a good plan that works every shift. I've taken more time than I intended. Marvin? MR. NICHOLS: Is this mike on? Can you hear me? ALL: No. MR. NICHOLS: Can you hear me now? ALL: No. MR. NICHOLS: Let's take a five minute -- oh, it's on now. There went your break. Okay. We are having copies of the presentation Ron made put together. We will have that by probably sometime late afternoon or earlier for anybody that wants a copy of that. We'll put it on the back table where Pam is. Okay. I think kind of the way the hearing is going to go, right now we've got 63 individuals signed up to present comments. MS. KING: Sixty-seven. MR. NICHOLS: How many? MS. KING: Sixty-seven. MR. NICHOLS: Sixty-seven and growing, so I would expect that we'll be here for sure all day today and whatever time it takes tomorrow. Probably we will run until about noon and take an hour break and then come back and start again. I was asked by the hotel folks to mention that there's an all-you-can-eat buffet lunch here, so it's up to you guys. Why don't we get started? We have a shortage of mikes. It would help when you come up and do your presentation if you could use the podium. If you prefer to use the table, then we can pass this mike back and forth. When you come up and start your presentation, if you would please state your name, the organization and spell it for the court reporter. Spell your name. Okay. Anything else? Okay. We'll get started. Our first presenter is Joe Main with the United Mine Workers of America. Joe? MR. MAIN: Is it working back there? My voice is about gone, so if it fades out just holler at me. I'm Joe Main with the United Mine Workers. Since I presented some extensive testimony on Monday, I'm not going to be saying too much here this morning. I had planned on doing some document introductions. We're going to wait until the end of the hearing to do that because there are some very important documents that we need to get on the record, and we believe that we need to explain those clearly to the panel so they understand those. I would just like to start off this morning saying that we appreciate the opportunity to be here and address the proposal issued by MSHA. I sometimes feel that we're in this Mexican standoff, and I'm trying to figure out in my mind how this is all playing out, but I think it's a safe thing to say that we have said from the beginning there is improvements in this rule. Those deal directly with plan verification and single sampling. The problem with those two is that they are in need of redrafting, in our opinion, and we're going to give a lot of reasons why, as we already started to do on the record in Morgantown. I think the presentation that was given this morning, we do appreciate that, Ron, but I still think it leaves a lot of things missing in those pictures, and it always worries me if people don't have a good appreciation for this whole process. In the plan verification process, as we pointed out in Morgantown, the way that's drafted is so discretionary that I think in comments I've also heard from the operators both sides have a belief that the proposal is too discretionary to the point that nobody knows what to expect when MSHA shows up at the mine. That's one major problem from the outset. I think there's some technical problems that are going to be addressed here today with the formulas that's used, the production levels, the production rates, how verification will actually take place, and really in this plan verification process there is a miner participation issue, which is not in the rule. We keep saying that. You know, as we look through the rule from front to back there's no miner participation rules at all that address, you know, the issues that needed to be. We all know that the operators have made clear their plans to oppose miner participation in plan verification since it's going to be an announced proposal, and that for starters we know we're in a big hold before we ever get out of the box. If you look at this whole plan verification process, it's the operators will do this, and MSHA will do this. Other than the tag along role, there is no provisions in there for miner participation involvement. You know, as I sat down and started looking through this, and miners kept asking me questions. Joe, what rights do we have there? I said well, if MSHA would prevail in this policy you would have a right to participate, which we know is going to be challenged unless the operators change position, but as far as having any influence over that proposal or over that process just hopefully you can influence an inspector, but we have no legal rights at all. That's something we're taking a hard look at in terms of this plan supposedly protecting miners with a lack of any clear cut legal rights that miners would have in this plan verification process. The single shift sampling. Just to put it bluntly, it ain't what miners asked for. That's been an issue, one of many public hearings and much testimony before in the past. Miners expect a full shift sampling to represent their actual exposures, not on spotty sampling. I also go back to the plan verification because as MSHA pointed out, it's going to take a long time to get these plan verifications in place, and if an operator passes the first test, which is a pretty stringent standard, which we appreciate, but once they pass that test then the real back up is compliance sampling to assure that miners are not in dust. We get over to that side of the aisle, and we look at what compliance sampling is. Hey, it's far short of what miners have been saying for years. I went back through, and I hope everybody has a copy of the Dust Advisory Committee report because those recommendations, we took them very seriously and we've recorded those, but I went back through there last night just flipping through here and just looked at some of the comments that miners made, the abbreviated version. You need to read the full text to really give you a feel, but how miners talked about the need for more frequent sampling, and that was based on the sampling that was taking place at the time, which I understand was four MSHA samples underground, two on the surface, and 30 shift samples by the operator. Despite this overwhelming plea from miners to increase sampling, when we look at the proposal it does not do that, and there is a decrease in sampling by 83 percent of the shifts sampled under this proposal any way that you slice it. I had miners in Morgantown after the hearing ask me Jim, when is the next time you think we're going to get sampled on the midnight shift? I said well, I didn't know what the deal is; if it was six samples a year. They said well, when are we going to get sampled on the afternoon shifts? I said, you know, those are very logical questions that, given the nature of the beast that we've had to deal with with MSHA, there's not a whole lot of folks that rush to the well that want to work overtime shifts in MSHA, particularly midnights and the afternoon. I said you basically run an opinion on your past history. I think it will get picked up. Going to the six shifts a year, sampling is an issue that just cannot and will not be supported by miners in the union. It's contrary to everything that's been said by miners and mine workers over the years. The outby sampling. There was some discussion in Morgantown about that, and I think some miners made it very clear that the old system or the current system is inadequate. There is an entry for the sampling. I read back through the notes of the July, 1998, meeting that was held on plan verification, and that was one point that was raised that MSHA had committed to go back and take another look at. When they did, we wasn't happy with the end result. They went from bimonthly sampling outby to one shift outby. That's not the direction that miners had perceived this whole rule to go in or the direction of the reform. There are several other issues that we've already pointed out in the record that I think have not been clearly stated here. The compliance sample. Miners have to understand, and it's not in the rule, but it's the position that the agency has taken, which they've informed us of, that the two milligram standard as contained in the proposed rule under 70.100 is not a two milligram standard when it goes to be applied for compliance. It's going to be a 2.33 standard which the citation is going to be issued on. That is not contained in the rule. It's in the reference on page whatever it is there in the preamble by some formula that miners, unless we tell them all this, has no clue. We think that's very unfair for the agency not to have stated that equivocally since I understand I have been told that is their plan. It's not in the rule. It wasn't publicly noticed properly for miners to have a chance to respond to it. Additionally, miners who work outby and miners who work as Part 90 miners are going to have their standard increased for compliance purposes to 1.26. Again, I think that's unfair not to have that kind of standard noticed in the rule for miners to clearly know these compliance standards are being elevated. So when you look at it you go back and say okay, we're going to have six samples a year. There are going to be eight hour samples, not full shift samples. They're going to be based not on the two milligram standard, but on the 2.33 milligram standard or 1.26 milligram standard. The rules have changed there. That is not, I don't think, favorable to miners. If you look at the Dust Advisory Committee in the recommendations of miners, I can't find anywhere where any miner has gone on record where the DHC was on record saying increase the dust levels. That is just totally contrary to the direction of I think the entire record on reform. Now, there might have been some mine operators had asked for that, and I think there was some mine operators that asked for some increases somewhere along the line, but there is no evidence that I found where miners have come to this agency and said reduce and eliminate black lung by raising our dust levels. It's just not there. That's a real problem that this union is not going to support, and I don't think you're going to find miners who support that. The whole idea of jacking up dust levels to four milligrams on long walls. As we said before, that is part of the deal, and this is a deal that we've sort of kind of realized because there was a lot of tradeoffs for miners to get two things, of course, that are still inadequate, but as part of the deal a lot of miners are going to find themselves working some of them in the same scheme like what the miner has here now with their dust levels jacked up two more milligrams, and we think that's a deterioration of the protections for miners. We sit back and say how in the world does that accomplish the eradication of pneumoconiosis by raising the dust level to four milligrams? It doesn't make sense in our heads, and again we will not support that kind of a proposal. As we said, too, the standards by which miners can point a finger to and say MSHA, go do this, or, operator, go do this, those have been wiped out of the standard or out of the rules with regard to the whole sampling scheme. Miners have to rely on running up to Marvin Nichols and whoever the new administrator will be after the next President, who could be another Ford B. Ford, who made a decision in 1981, whenever it was, to cut the dust inspections back in coal mines right after we come out of one of these reform periods and ask gee, would you come and do my six dust samplings a year because you're not guaranteed under the law, and there's no firm guarantee that those samples will even take place two and three years from now. It was a pig in a poke proposal. The style of the proposal itself is laced with so much policy application and laced with so much discretionary control by the agency that the operators nor the miners know exactly what to expect when MSHA comes out. It's sort of like hopefully you're good friends with the inspector when he makes a decision on a plan verification. If he happens to be PO'd at you because you got on his case for something that he didn't cite, I mean, this whole standard is just designed in a way that allows too much personal influence in the decision making process. It's not good for miners and not good for mine operators. There's where we have the rules played out there. In terms of the ability of miners to understand this rule, it is so complex it has taken lawyers, safety reps. I've pointed this out to safety committees and let them sit down and take a look at it. The rule is so complex that if you don't have a lawyer, and I had to have a lawyer with me and the good help of some MSHA folks like you to really understand it. I'm saying I know so much about this whole process. I've served on the DAC committee to help make these recommendations, and if I can't figure this stuff out how on earth is the coal miner supposed to? I've got access to all these resources. It's a very complicated rule, and it doesn't say what it means and doesn't mean what it says because of the policies that apply throughout the rules. There is so much that is problematic with this rule that it overshadows the good steps forward it's taken. The actions taken by MSHA that they responded to the four issues in a lawsuit filed by the UMWA. I'm telling you here now I swear to God those ain't taken care of. I think it was a disservice to the public and to the mine workers for the agency to say, given the immense amount of work that has been done by miners and by the union, to have those four issues addressed to just chart them back in some discussion in the preamble and claim to the world we addressed those because that's exactly what you folks did. Until I see a rule that says those, until miners see a rule that says those things that we asked for, those are not taken care of. We're not going to settle for policy statements that could be changed by the next Administration, and we're not going to settle for some assertation that these had been addressed in rule making when in fact they are nothing out there tangible that the miner has. There is no takeover of the operator program as we had envisioned. There is no takeover of the operator program as recommended by the advisory committee. There is no takeover of the program that would at least maintain the frequency of sampling that we had in 1996, let alone today. Until those things are accomplished, there will be no support for the mine workers. The record on the Dust Advisory Committee I think is quite clear. There was a lot of big discussion. I remember I think it was at the Lexington meeting you came forward and talked about the possibility of MSHA doing a monthly sampling scheme. I think it was 12 a year. During this whole discussion, I think the advisory committee in its final action made it clear that that was not acceptable to the advisory committee, and when it issued its final recommendation calling for at least the frequency in number of those of MSHA and the operator that meant what it said. At least that number. For anybody to think that -- we had miners that testified in Morgantown that their mine, 900 shifts a year, to say on three shifts a year we're going to validate those miners' exposure and say we're comfortable with that that those miners are being protected and we're eradicating black lung with those kinds of approaches is dead wrong. It's a wrong headed approach. It flies in the face of what miners have demanded for years. It flies in the face of the findings of the advisory committee, and it's just totally unacceptable. I'm not going to spend a lot of time up here today going through these, but I think that what's happened here is MSHA has made a calculated decision, and maybe rightfully in their own mind, that this thing is going to work. I think whenever miners saw it, when we see it at the bottom, and understand how this thing is really going to be implemented, it's not going to work. My fear is that this is the last reform that miners are going to see. It took us -- to get to the stage we're at today, it took us over 20 years to get here. With the pace of regulatory reform in this country, I'll probably be in a grave somewhere by the time this thing gets reformed again, and so will a lot of miners. I am not going to be one to stand up and say this is the kind of reform that we need to protect the miners in this country when I know it's dead wrong. I don't agree with it. I think it's wrong headed, and I think the agency missed the big mark when they failed to follow the recommendations of that advisory committee. The next time I get asked to serve on an advisory committee I'm going to ask a simple question. Are you really going to do what the advisory committee requests us to do? If the answer is no, I'm not wasting my time. I apologize to a lot of miners out there that I had to come to this hearing to testify to tell what was going on in the coal mines because a lot of them told me Joe, the government ain't going to listen to us. They ain't listened to us in the past. They're not going to listen to us again. I said this time, guys, I think they will. There's so much on the record here. There is such a case that's been built that miners have been put in unhealthy dust for so much of their lives. We've had just thousands and thousands of miners dying from this disease. We've got all this corruption going on in this country with the sampling program. I think this time they will listen. I was wrong, and I apologize, and I will not bring miners back to go through that exercise again. If the government ain't going to follow the recommendations of their own committee, by golly, don't appoint them and waste the public's time. Now that you've done it, I think the proclamation on this rule is not fair. I think there's a lot that we pointed out here in the hearings that we have said that we verified that are not in the rule, not in the rule, not in the rule. Things have been stripped out of the rule. There is protections that are being diminished. Miners' participation marginally, only by policy, has seen some improvements, and those are not guaranteed; only by the Mine Act that's been in effect for years. What we said at Morgantown is this proposal is fatally flawed. It needs to be sent back. Go back to the drawing board and come out with another one that really reflects the needs of the nation's miners, reflects the findings of the advisory committee because our lawyers in our department and others have taken a look at this and come to the conclusion the kind of reforms that need to take place to fix those things that follow the recommendations of the advisory committee, that institute the lawsuit issues, to respond to the needs of miners, cannot be done legitimately in this rule making. You're too far off the path to go back and mandate it. This is a proposal that bandaids won't work. It needs to go to the emergency room. It needs to come back out of there with the whole body that really addresses the issues that face the nation's miners. As far as trying to do something here, what this proposal represents is give a little bit to the miners and give some to the operators here. We are for reforming the program in the best interest of the miners in this country; nothing short of that. We fully expect the government to at least once in its long string of activity to take the concerns and the needs of miners to heart by thinking for a while how this affects MSHA and think for a while how this really affects miners and what miners really said they want and need and come back out with a proposal that reflects the changes that are necessary. Thank you very much. MR. NICHOLS: Thank you, Joe. (Applause.) MR. NICHOLS: Our next presenter will be Tom Wilson, United Mine Workers of America. MR. WILSON: I'm Tom Wilson, T-O-M, W-I-L-S-O-N. I work for the United Mine Workers of America International Union. It was suggested yesterday to me that probably a good thing for me to do today would be cover the -- give an overview and cover the history of what got us here today. As I was sitting in my room last night at 2:00 a.m., I got so frustrated with that approach that I decided just go back and explain in my view what's occurred since July 7. Joe Main just mentioned the complexity of these rules. That's an understatement. On July 7, I received a phone call and was asked to get my hands on the proposals that MSHA had just released by the end of the day, while I'm to start reviewing those proposals over the weekend and to give an opinion of them on the following Monday, on July 10. Right here in my hands is what was on the Internet on July 7 that MSHA had released that morning. I started reading that. By Monday morning, by no way, shape or form was I completed reviewing it, but I had formed an opinion that somewhere along the line MSHA obviously didn't look at the record and didn't listen to the testimony. Between July 7 and the 10th, I reviewed the package. I shared my opinion on July 10, and I immediately ordered this material, which was the background of what should have got us a proposed rule. In here is the task group report done in 1992, and in the preamble, which I had read over the weekend, MSHA mentions the task group report. They mention their findings, or at least in part, and they state, "The effort to implement these changes was suspended pending the recommendations of the Advisory Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers, which was convened in 1996." There's another way of saying that. There's a Tom Wilson way of saying that. From 1992 to 1996 nothing was done, and we formed another committee and we looked at it again. Also in what I requested on the 10th was NIOSH's document, Occupational Exposure to Respirable Coal Mine Dust: Criteria for a Recommended Standard. I believe that was done around 1995. I could be wrong on that. Then, in 1996, the advisory committee report. Now, the UMWA had Joe Main and Dr. Weiss as members of the advisory committee. Short of them, I probably attended more advisory committee meetings and worked in conjunction with Joe and Jim throughout those hearings, and I guess it was because of that I got the phone call on July 7 asking me to take a look and form an opinion. Also in the material I ordered on July 10 was the UMWA's lawsuit against MSHA. Now, that was filed early 2000. Another four years, just like the task group report, had gone by, and there had been no movement. Even though I had formed an early opinion on July 10, between July 10 and July 17 I continued to review Packages 1 and 2, and this was continuously during that process. The more I reviewed, the more frustrated I got; the more need I felt for going even deeper into the record. I remember back there in the advisory committee meetings observing something and having a thought. Whether right or wrong, the thought entered my mind. I see top MSHA officials pop in, maybe speak for a few minutes and pop out of that process. The thought entered my mind at that time and again this week what possible chance was there to understand the problems and find a solution by just popping in and popping out? I assume they had read the report and the transcripts of what was said at those meetings. I'm sitting here today. I don't believe it because on July 18 I started reviewing the transcripts of the advisory committee hearings, and just like the process of starting and trying to absorb everything in the July 7 document, which I'll be very honest. To this date I have not accomplished reading and absorbing all of this information. To this date, I have not accomplished reading and absorbing all this information, and by no means did I accomplish reading word for word the transcripts. I got so frustrated with this process that between July 18 and 31, day after day, I called my local unions and asked them to come and assist in reviewing these transcripts and had as many as three per day volunteers assisting me going through the transcripts. Even with that team, we didn't make a dent in it. I remember getting frustrated, and along about that time I called MSHA-Arlington thinking that possibly they had a shortcut to what I was seeking to find in these documents. Possibly they had an index by topic of where it was found in those transcripts. I was assured no such index existed at MSHA. Well, by this time we're at the end of July. August 1 through August 9 I, to the best of my ability, myself and the safety committees and miners' reps, started preparing for today's hearing while continuing to do this review. The history on this subject, the record on this subject, and this is just the tip of the iceberg, and everybody on this panel knows this. There hasn't been a decade gone by that miners haven't came to the mike and testified, that a record hasn't been made, and for a big part that record is pretty much consistent. I stopped at the office yesterday morning. You know, one great thing is that we get to come to these public hearings and state how we feel and why we feel that way. I picked up a bulletin yesterday morning released by MSHA on best practices on mine fires. Whether the thought is right or wrong, it's a thought that Tom Wilson had that I'm surprised we're even having public hearings on dust. Instead, it wouldn't surprise me just getting a memo on MSHA's best practices on dust. I view MSHA. There's been a change in my heart and in my mind over the years. Back in 1996, as I was attending those advisory committee meetings, I believe that I still felt and believed that MSHA was an agency that was after the best interests of the miners, that at that time they was going to take the advisory committee report, and they was going to do what was right. Today, Tom Wilson is of the opinion that MSHA is an agency that avoids enforcement and doesn't always look at what's in the best interests of the miners. I believe some of the proposals in this rule speak specifically to that, and I would like to go into that in a minute. Ron, as you spoke I started making a few notes. Your diagram showed -- in fact, the one on the screen now -- a proposed approach. Now, I believe what you're going to hear today, and I don't think I disagree that that's MSHA proposed approach. That lays it out, but it's what's not up on that screen. It's what MSHA's proposal doesn't do. It's the many areas that you turn a deaf ear to the reports that you commissioned to have done, the recommendations that came forth from those experts studying the problem in detail, not just popping in and out for an appearance, but studying it, giving it thoughtfulness, identifying the problems and searching for a solution. Those are the things that I view that's missing from this proposal. It's the pages and pages of transcripts of testimony, of discussions and intent between panel members that's missing from today's proposal. I view that even though all that was commissioned, all that was done and all that was finalized, MSHA still went of on a path of their own saying disregard what our past group has said. Disregard what our advisory committee said. We've got a better solution. I believe with all my heart that you're wrong; that your solution will not solve the problems identified by the miners and discussed by the panels and the committees over the years. Ron, your demonstration pointed out effectiveness of plans; that 60 percent of the average production is currently required, that under the proposal higher than average production. I personally believe that's a play on words. The question must then be asked how much higher because I know, and I believe everybody on this panel knows, that it's nowhere close to the percentage suggested by the advisory committee. In my frustrations last night at 2:00 a.m., I decided just to go back to the basics. By no means have I read enough or am I smart enough to talk a great deal about each and every one of these recommendations, but I am going to touch on some, and I'm going to go down the list. It's Section 6, Statement of Committee Recommendations, found in the advisory committee report. Recommendation No. 1. MSHA should consider lowering the level of allowable exposure to coal mine dust. Any reduction in the level should include a phase in period to allow allocation of sufficient resources to a compliant effort. In the interim, the operators, MSHA and miners should develop a comprehensive program to assure compliance with the current permissible exposure level. This effort should include at least targeted compliance efforts, sharing of documented exposure for reduction approaches, e.g., increased water sprays, scrubbers on continuous miners, dust control plan parameters and increased good faith effort consideration in enforcement actions. When you read 72.12, it puts miners working downwind of the DO, which are required to wear PAPBs, at two times the verification limit. I believe that's four milligrams. MSHA should consider lowering the level of allowable exposure to coal mine dust. I don't know how we get from that to miners work working downwind in four milligrams. MSHA makes adjustments to the PELs to account for measurements of uncertainty. I hear MSHA's reasoning for that, but again from my perspective it's going the opposite direction of the recommendation. I believe both of those are just examples of where MSHA has turned a deaf ear to what's in the records. Recommendation No. 4. Environmental control measures should continue to be the primary means of maintaining respirable dust levels in the mine atmosphere in the active workings in compliance. Respiratory protective equipment should not replace these control measures, but should continue to be provided to miners until environmental controls are implemented that are capable of maintaining the respirable dust levels in compliance. Administrative controls should only be utilized in situations similar to respiratory controls as interim control measures while environmental controls are being installed. Again, 72.12 allows use of PAPRs to supplement engineering controls. 72.14 uses language like all feasible engineering controls. I know I've heard about this panel of experts that's going to be assisting you, Marvin, in making that decision on when that's approved, but for the life of me I'm going to say it like it is. I have absolutely no faith that that panel of experts is going to make the right decision. I come from Alabama. I know we have the most grindability coal in the nation, the highest air velocities, and you all know where our long walls was and you know where are long walls are at today. I've seen teams of management and labor go overseas to the manufacturers of long walls and implement engineering controls that Tom Wilson never thought of and I have no assurance that the panel of experts will think of that not only reduce dust levels on their long walls, but allowed them to operate those long walls at a reduced standard of one milligram and be in compliance. I've seen other long walls where a few years back, and you all know I was screaming. I was pushing every button I could push to turn things around. Long walls that had eight milligrams on them. These are long walls that are producing the highest grindability coal in the nation under the highest air velocities. It was not uncommon to have one milligram coming in at the headgate and eight milligrams leaving at the tailgate. We was all called into a room and gave an ultimatum. Either give us airstream helmets or we're going to shut these long walls down. You know what the UMWA did. There's no airstream helmets introduced, and those dust levels, because of the engineering controls that came down, engineering controls that MSHA top personnel traveled to Alabama to see. Now, in my mind I just gave you some examples of the worst case scenarios, and because of the engineering controls and a lot of hard effort by everybody those dust levels came down. I believe in this case MSHA is trying to take the easy way out. They know it can be done. They've seen it done. They know the advisory committee recommended against airstream helmets replacing engineering controls, but under this proposed rule we're saying there's going to be occasions where the administrator and his panel of experts need to go the opposite direction with this. I strongly disagree. 72.14, like I mentioned, uses language like all feasible engineering controls. What are all these feasible engineering controls? What the hell is feasible? I think you know sitting here today the argument that's going to be presented as to what is feasible and what's not. I've heard it for years. 72.14 also states continue to look for improvements that you can make. I've heard those arguments for years. We've looked. That scrubber is too big, or that scrubber is too small, when the bottom line was they just didn't want to install a scrubber. It also uses language like implement feasible solutions. With all that said, I have no confidence that this system is going to turn us any direction but backwards. Recommendation No. 6. During this verification visit, miners and their representatives should have the same paid 103(f) walk around rights as they do under MSHA inspections. I stated earlier by no means did I finish reading those transcripts word for word, but I did get far enough to review the total conversation between committee members on notified visits. The problem was perceived and detected early back in 1996 by the operators that once MSHA notifies of a visit it cannot be considered an inspection, and, therefore, they was not obligated to pay 103(f) walk around rights. It's in the record. The complete discussion is in the record, and after that complete discussion the advisory committee comes out with Recommendation No. 6, the advisory committee that you formed, you appointed and selected to study the problem and come up with a solution. Now, if there's no other example that leads you to how did Tom Wilson form his opinion that MSHA turned a deaf ear to those parts they didn't like or didn't support, I think that one should point pretty clear to it. Recommendation No. 8. MSHA should complete research in consultation with outer agencies such as NIOSH to study the relation between -- I have to apologize; the pages are starting to blur -- indices collected from continuous monitors and the traditional methods of assessing exposure to respirable dust when these different methods are applied to the functions of hazards surveillance, as well as developing other potential uses of continuous monitoring data; for example, compliance activity. Where is it? One brief little sentence? The advisory committee clearly recognized that part of the solution to the total pie approach of fixing the problem was continuous monitoring. I can't say that my opinion represents all the miners here, but my opinion is MSHA, with their one, brief little statement about continuous monitoring, all but put the knife in the back of continuous monitoring. It continues on. Once the technology for continuous dust monitors has been verified, these monitors should be broadly applied in conjunction with other sampling methods for surveillance and determination of dust control at all MMUs and other locations at high risk of elevated dust exposure. Once verified as reliable, as in (1) above, MSHA should use continuous monitored data for assessing operator compliance efforts and controlling miner exposure and should continue use of continuous monitored data directly in compliance. MSHA should take whatever action possible to expedite the development and field testing of a continuous personal monitor to serve a variety of purposes, among them identifying sources and levels of exposure to respirable dust and, as appropriate, for compliance. Again, I feel MSHA has failed the coal miner. Machine mounted continuous monitors is just briefly mentioned in this package, and we all know that the personal wearable continuous monitor that MSHA went after to design is not worth refinement. Recommendation No. 15. MSHA reliance on dust sampling for compliance should be based on the appropriate balance of personal, occupational and environmental sampling. Some of the comments here will also apply in Recommendation No. 16. I don't believe MSHA went after that proper balance as Recommendation No. 15 speaks to. I believe MSHA looked at, and the term was used to me last week and I immediately wrote it down because it struck a chord with me as being the truth. I believe MSHA looked at the sampling burden on themselves; not on the health, what was the best for the health of the miners, but again on the sampling burden. When MSHA currently does bimonthlies, what percentage of production do they require for a sample to be valid? I believe it's 60 percent. MR. SCHELL: Of the average. MR. WILSON: Of the average. And under the rules what would it be? MR. SCHELL: It would be roughly 70, the 70th percentile, so it would be significantly above the average. Rather than 60 percent of the average, it would be significantly above. MALE VOICE: Use the mike, please. MR. SCHELL: I'm sorry. I'm sorry. Tom, I'm sorry. You're asking about compliance sampling. Compliance sampling would still be what it is today, which is 60 percent of the average. MR. WILSON: The same. MR. SCHELL: What I was referring to, and this is a bad microphone. Are you hearing anything at all back there? What I was referring to was above the average, the verification. Tom, that is an improvement over what the operators do now. As you know, they use 50 percent. MR. WILSON: Ron, as you know, it's far under what was recommended by the advisory committee. MR. SCHELL: Tom, I honestly don't remember what the advisory committee recommended for compliance sampling. Clearly they recommended in verification sampling that it should be near the upper limits of production, and that's why upon verification we went significantly above the average. MR. WILSON: You use words like significantly. 70.2(a)(8) defines verification production levels, VPL, as the tenth high production level recorded in the most recent 30 production shifts. I've heard numbers that that calculates out to 67 percent. You just used 70 percent. I again believe that it's far less than what the advisory committee spoke to, and I believe 16 gets into it even further. MSHA should adjust the PELs to account for extended work weeks. MSHA should develop a formal targeting mechanism for more frequent sampling of mining sections, mining units and operators found to have a history of non- compliance with the respirable dust standards or sampling procedures. MSHA should explore innovative ways to enhance its presence in mines for compliance sampling. (b), The committee believes that any MSHA resource constraints should be overcome by mine operator support for MSHA compliance sampling. The committee recommends that to the degree that MSHA's resources cannot serve the objective identified, resource constraints should be overcome by mine operator funding for such incremental MSHA compliance sampling. 16(c), The committee considers it a high priority that MSHA take full responsibility for all compliance sampling at a level which assures representative samples of respirable dust exposure under usual conditions of work. In this regard, MSHA should explore all possible means to secure adequate resources to achieve this end without adverse impact on the remainder of the agency's resources and responsibilities. Compliance sampling should be carried out at a number and frequency at least at the level currently required of the operators and MSHA. The miners' representatives would be afforded the opportunity to participate in these inspection activities as provided in Section 103(f) of the Mine Act. Operator compliance sampling in the interim should continue with substantial improvements to increase credibility of the program based on the committee's recommendation. (f), MSHA should increase the number of samples collected by the agency to determine compliance with respirable dust standards. MSHA should place major emphasis on the use of personal monitoring for determining compliance with PELs. However, MSHA should continue the practice of designated occupational sampling for determining non- compliance. (e), MSHA should make no upward adjustments to the PELs to account for measurement uncertainty. (g), Mine operators should continue to measure exposure to respirable dust for DOs, DWPs and DA compliance sampling as provided in 30 CFR 71 and 90. Additionally, mine operators should sample as part of plan verification operator sampling. (i), Samples taken to determine non-compliance should be taken when production is sufficiently close to the noraml production shift. The production level should be 90 percent of the average production of the last 30 production shifts, and MSHA should require the mine operator to maintain the appropriate records. (j), MSHA should adjust the PELs to account for extended work shifts. Again, when you look at that language, you look at the transcript that supports that language, I do not believe your rule, proposed rule, follows those recommendations. Recommendation 17. Continuous monitors for dust control parameters should be utilized to evaluate and assess the quality of dust control measure as part of mine respirable dust control plans. And 19, Recommendation No. 19. Again, as I mentioned earlier, if there's any doubt how Tom Wilson formed his opinion that MSHA went off on their own path by trying to address parts of the problem and failed to look at the whole problem and the whole solution, this is one of the clearest examples that I can draw to. In an earlier recommendation we already heard the committee's recommendation on 103(f) walk arounds during plan verifications. This is Recommendation No. 19(a). Miners' participation in the interim operator dust sampling program should be increased to provide assurances that a credible and effective dust sampling program is in place. To that end, miners at each mine should select designated representatives who are employed at that mine for compliance sampling. Miners designated as representatives of the miners should be afforded the opportunity to participate in all aspects of respirable dust sampling for compliance at the mine. That participation would include protection against loss of pay as provided under Section 103(f) of the federal Mine Act. 19(b), Miners' representatives should have a right to participate in dust sampling activities that would be carried out by the employer for verification of dust control plans at no loss of pay. Miners' representatives should also have a right to participate in any activities involving any handling of continuous dust monitoring devices or the extraction of data from continuous dust monitoring devices without loss of pay. 19(c), Miners' representatives should receive training and certification to conduct respirable dust sampling paid by the employer. Miners' representatives should be afforded the opportunity without loss of pay from the mine operator to participate in the training of the miners. As stated earlier, if you review the transcripts of the advisory committee, the discussion between the committee members, recognize that they foreseen the problem back in 1996. It was addressed by the operators then. The proposal simply doesn't address it. MSHA has skirted the issues, again I believe took an easy route and failed to look at the whole problem and the whole solution. Today you're going to hear probably in excess of 60 miners that I'm sure will give their examples and lay the case out far better than I can, but I echo the message that Joe stated earlier. You have failed to follow the committee's recommendations. The proposals are flawed. Go back to the drawing board and fix these proposed rules. Thank you. (Applause.) MR. SCHELL: Thanks, Tom. Just a couple comments. Tom, I would like to just clarify one point. I'm not trying to be argumentative here. I'm trying to explain why we did what we did so you'll understand. You still certainly have a right to object to it. One of the concerns I think that we all agree with is the impact that averaging multiple samples has on the protection of miners. You can go out, and you can sample and take five samples, and you can get a 3.5, a 4.1, and then you come in with 1.0 or .8 or whatever else. You add them all up and you divide them, and if they come below 2.1 under the current system everybody is okay. They're not okay. One of those miners is exposed to three milligrams. We've done actual cases where miners have been exposed to four milligrams of dust, and when you average it we say the miner is okay because you dilute the high exposures with the low exposures. What we're talking about is going to single samples, so no more do you get the 4.5s, the 3.5s. The reason that we have proposed going to citing at 2.33 is a legal reason, and that reason simply is that the Secretary of Labor bears the burden legally if there's a contest of proving that there was a violation. I'm not a mathematician, but if we cite 2.0 or 2.1, and I think Dr. Weeks will probably address this. There's about a 50/50 chance that there was a violation, there was a violation of the standard or there wasn't. We have problems sustaining before a Judge that there was a violation of 2.0, a 50/50 chance. If we cite at 2.33, we have or we can statistically prove a very high confidence level that that miner was overexposed. The point I want to make is the great advantage to the miner in citing on single samples. We don't have that many between the range of 2.1 and 2.33. The great advantage to the miner again is using single sampling. I can appreciate you can be concerned that we're not citing at 2.0, I wanted you to understand that we're doing it for legal reasons. Again, the great advantage to the miner is using single sample measurements and looking at every sample and not allowing them to be averaged. MR. NICHOLS: Okay. Daryl Dewberry will be up next, but let's break until 10:30. Daryl, if you could be back and ready to go at 10:30. (Whereupon, a short recess was taken.) MR. NICHOLS: Okay, Daryl. Go ahead. MR. DEWBERRY: Thank you, sir. My name is Daryl Dewberry, D-A-R-Y-L, D-E-W-B-E-R-R-Y. Before I make my presentation, I think that I need to get Joe to come back to the mike to straighten out something or rebut something that Ron had stated. At this time, I would yield to Joe Main. MR. MAIN: Thank you, Daryl. As we go through this, I'm not going to be interrupting. I'm going to try to wait until the end, but I think this is such an important issue, Ron, that people need to understand what's really going here with the dust exposure levels. I understand the position MSHA has taken with regard to they jacked up to two milligrams and 2.23 for the legal issue. That may be all well and good if you want to wed yourself to saying that you want to use two as a base. I'd like to introduce into the record, and I think there's enough to go around, a document. I want to introduce into the record a document that was published in the Federal Register on April 24, 2000, by MSHA. I don't want to add a lot more confusion to this whole debate over dust levels. Not that I'm going to; I think the MSHA already has. What it is is a notice of potential rule making by MSHA, and what it says is that the 1996 Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis Amongst Coal Miners recommended that we consider lowering the dust permissible exposure limit, PEL. In 1995, the National Institute for Occupation Safety and Health issued a criteria document in which they recommended that the respirable dust level or dust PEL be cut in half. We're considering rule making to lower the dust PEL because miners continue to be at risk of developing dust condition occupation lung disease. Now, for the record I would like to say that on April 24, 2000, less than three months before MSHA issued this proposed rule, they put out an announcement that they were considering cutting the PEL in half, which means two would be one as I read it, and that was consistent with what the NIOSH criteria document is. Now we sit here, and we have a proposal on the heels of this announcement saying we're raising up the PELs to actually be an exposure level of 2.3 and 1.6, and a lot of operators will go from two milligrams to four milligrams. I'll tell you, if you guys haven't left me totally confused as to where the agency is at. I mean, I don't know what any miner or what any of us should think, but I think the agency on one hand issuing a public notice saying we're considering going to one milligram and then having a proposal that increases these across the board is outrageous. It's outrageous for government policy to do that. Secondly, with regard to the 2.3, if MSHA wanted to have a two milligram standard they could have followed the recommendation of the advisory committee and lowered the dust standard. They could have followed their own notice and lowered the darn thing down to where they ended up with the two milligram standard if they chose to do that. The agency is thinking -- I'm not sure exactly what the heck the agency is thinking, to be honest with you, given the fact that this proposal comes out in April and we have one in July that goes completely in a different direction. I understand the legal argument there, but I don't think it's fair in the context of what has been placed on the record, the demands for lowering the standard, the agency's own position as noticed in April, 2000, of considering cutting the standard in half. I don't think I'm the only one that's totally confused in this room about where MSHA is at on dust standards in this country. (Applause.) MR. NICHOLS: Thanks, Jim. MR. MAIN: Okay. MR. DEWBERRY: As I stated earlier, my name is Daryl Dewberry. I am the international executive board member for District 20, which encompasses Alabama, Mississippi, Georgia, Florida, South Carolina, North Carolina, Tennessee, Virginia and eastern Kentucky. With that said, I welcome each and every one of you to District 20, United Mine Workers of America. I'll give you a little background about myself. I'm going on my third term as international executive board member. I've been in that position since 1993. Prior to that I was a District 20 executive board member from 1985 to 1993. My duties are to represent the miners in all phases of their problems, such as arbitration, mediation, litigation and resolution of their problems and negotiate their collective bargaining agreements. Prior to that I was a local union president, 2397. I served as the chair of the safety committee, served on the mine committee, compact committee and organizing committee. My mining experience is I went to work at North River Energy in 1975, which was Republic Steel then -- it's P&M Coal Company now -- and then on to underground development sinking the shafts at Jim Walter Resources, a hard rock miner. From there I went to Mulville Coal Company, from there to Jim Walter Resources No. 7 Mine. I left No. 7 Mine and went to work for the district as a district rep. I've held the classifications of a miner operator. Mostly that's what I was in my tenure employment there. I've been a fireball, shot fireman, first class welder, pumper. Prior to that I was a journeyman ironworker. I'm registered with the State of Alabama as a certified competent mine foreman since October of 1981. My certificate number is 5284. I also served on the state board of examiners, which was appointed by the Governor of the State of Alabama. That's a state mining board of examiners. I'm also certified with MSHA in dust sampling. A few weeks ago, as a matter of fact on the morning of July 7, I started my day like most mornings. I put on a pot of coffee, and I went out to get the newspaper. I opened it up, and right on the very front page -- let me get the right one here -- it says Rules Aimed At Protecting Coal Miners. It goes on to state, "After a lawsuit for United Mine Workers of America, federal officials have proposed new rules to keep miners from developing black lung disease." I instantly started wondering and thinking is this true? I read on into the article and saw quotes by Davitt McAteer, the Assistant Secretary of Labor for Mine Health and Safety. He was singing the praises of the proposal. I saw quotes by Bruce Watson, the vice-president of health and safety for the National Mining Association that was packaged in that article in a way that appeared to be endorsed and a sanction of the United Mine Workers of America. But guess what I didn't find? I didn't find in that article any quotes from my great president, Cecil E. Roberts. Even in the early morning I found it very odd that this front page article, which gave the appearance of a UMWA picture, that it had quotes by everyone but the plaintiffs in that original lawsuit, and that was United Mine Workers of America. I really started wondering was Davitt McAteer and MSHA trying to mislead the public by this release? One thing that really seemed odd to me was what method, what miracle, had they come up with to eliminate black lung disease in the mining industry? I wanted to see this. My great union has been good to me. I've been to the Georgia Main Center for Labor Studies. I've arbitrated over 400 cases in my tenure of business, and I couldn't believe that we had come up with some type of miracle that would eliminate black lung disease in the coal industry. Well, I couldn't wait to get my hands on the proposal. I contacted Tom Wilson immediately. He is a staff employee in District 20 over health and safety. I asked him what about it? He said I don't know. I haven't got my hands on it yet. I said I want to see this miracle. I accompanied Tom Wilson that day. He got some information over the Internet. We went to the district office, the MSHA district office, and obtained the proposals. I immediately went back, had my secretary get me a copy right off the top of those proposals, those new rules, and I immediately started reading and reviewing. I've seen some ambiguous rules before in my life, and I call myself at least an average educated man, but the ambiguous language and, in my opinion, in some cases deceptive language, the discretionary proposals of some of the rules went over my head. At that point, and even in your own quotes of the proposal it refers back to the formulas. I know that we've got John, who's a mathematician, back there. I've also got a cousin that's a CPA. Two and two in my book equals four. It always has, but some of the math we can't even get experts to agree on on the formulas. I'm speaking of the quartz and sampling. I went back to the proposed rules or the advisory committee's proposed rules, and I reviewed those 20 rules. They're simple. They're unambiguous. They have a clear definition of what kind of conclusion that MSHA should draw to make a rule. Your rules that are proposed rules that you have addressed in no way, shape, form or fashion come close. They do in some case. The single sample, and we appreciate that. That's long overdue. However, I think we missed the benchmark as far as the hours worked. April 1 is a holiday for the United Mine Workers. It's supposed to be the eight hour work day. You can ask any active member in this room. We don't have an eight hour work day. Most people change out at the faces. They call it a hot seat swap out, and they work in general ten hours a day. Not just those face people, but the outby people, too, that are on these belt headers, which are going to be samples one time per year. That is absurd. After reading the proposals, and I earlier stated that I was proud to welcome everybody to District 20, but I'm absolutely appalled at the rules or the proposed rules that we're asked to be considered at this hearing today unless I'm wrong in reading, and I'm not because I've got the opinions of every safety committee in my district, the people that I rely on for knowledge. As Tom stated, we have worked those people to death since these rules came out. They spent countless hours reading and re-reading. I guess it's like anything else. You'll come up with a different conclusion after you read it again and again. However, it comes back to the same bases. The point of the advisory commission on their 20 rules that they recommended were missed by MSHA. As far as the rules and the advisory committee's recommendation, as I stated, the ambiguous discretionary rules that leave it up to and put the burden really on an MSHA inspector. Let me say that I have personal friends that are MSHA inspectors and glad to see some of them. However, I don't want to put this burden on them. They need it in black and white rather than to make a judgement call, and they do in most cases have to do that, but as far as leaving the discretion to one individual MSHA inspector as to whether or not to write a citation or what, I can't understand putting this burden on him. I think that the law should be clear. There's too much room for ambiguous language for problems to be when we wind up going with an ALJ. You all know. I understand your 2.33. If it's two percent, leave it at two percent. As a matter of fact, I've done a lot of reviewing on this thing. I went back to the basis for this right here. I compared Part 90, and that's one of my -- let me say this. That's a pet peeve with me because we've lost over 18,000 people to mine related respiratory diseases over the years. I've got a personal friend that hired in at Jim Walters 7, Sammy Walter. He is my age, 49, or he would have been my age. However, he passed away about three years ago from this disease. Another young man named Scott Capell, who was removed from the coal mines at Jim Walter No. 7 Mine at 33 years of age because he had black lung. I guess that's why Tom used the word frustrated. I use the word angry, mad, because I've seen brothers fall to this disease. Don Hood, a personal friend of mine, can't walk across this room. He's contracted it. He didn't think a thing about it at the time working downwind or being involved or around it. It didn't have an immediate impact on him other than choking to death right then. Now he's choking to death in fresh air. He walks around with an oxygen bottle behind him. The dust is still killing people today, and the miracle that MSHA has proposed in my opinion won't do it. There are some advances such as the single shift sample, but 480 minutes is not what these people work. It should be tied to their work schedule from portal to portal. If the equipment won't do it, we have the technology and the ability to change it, to monitor the environment that that person works in. If discretion is going to be used, use the discretion of when he gets on the man bus and gets to the work section. Start it then. In general, we've probably got about 30 minutes to the face, so you're talking about an hour off of ten, so instead of 480 minutes they need to be at least monitored nine hours, so you would have to adopt that employee working on the face, his specific time that he's worked. I'm sorry, but the MSHA inspector needs to stay down there. Six samples a year? All we're doing is giving them an average opportunity of missing the boat. All they've got to be right is six times out of the year. The rest of the time they can be wrong unless you catch them, and then we'll go back to an abatement situation. Let's get back to Part 90 miner sampling. Nowhere in this, and I would take you to page 32 through 35 of the '77 Act. This is promulgated -- I mean, this is the Act itself as enacted by the Congress, Senators and House of Representatives and signed into law. It specifically deals with the standards. I don't see anywhere in here, and I've read. I know that in the beginning we allowed up to at some places never to exceed 4.5 milligrams. It goes on to state, however, at no time would this be extended let's say past 18 months, and it goes on with the waiver. It even addresses on page 34 effective three years after the date of this Act we would go at two, not 2.33, and I understand you're trying to give yourself a little buffer there because these operators are going to litigate it. They're going to try to challenge your ability to prove that they've got two milligrams. I think you've got a mandate by the Congress. I think that it's not discretionary on your part. We didn't ask you to legislate the law. We didn't ask you to be legislators. We asked you to enforce what Congress has guaranteed us as citizens of this great country. I would also go on to page 36. I see the brother back there with the airstream helmet on, and I know that he'll get into some testimony on that, but I would refer you to page 36. It says use of respirators shall not be substituted for environmental control measures in the active workings. Each operator shall maintain a supply of respirator equipment adequate to deal with the occurrence of the concentrations of respirable dust in the mine atmosphere in excess of the levels required to be maintained under this Act. Gentlemen, I would ask you all to consider the proposals and the recommendations of the committee that was formed. I mean, you all put this committee together. If you're going to throw good money out there to get their advice, and let me say that I have the utmost confidence in Joe Main and Dr. Weeks both. I know what Congress intended. Congress intended for MSHA not to assist in coal production or the monetary value of coal. It guaranteed us right on the front page the protection for its most important resources. That's the coal miner. I think we've missed the benchmark, even though we have raised some pertinent issues such as single sampling, and I appreciate that. That's been a long sought after mechanism to try to curtail dust, but this won't do it. I would ask that this committee, this panel, go back to the drawing board, go back and read and consider the measures of the advisory committee. They've got some good stuff in there. We have technology today. I mean, I'd say 20 years ago you'd take -- I'll give you an example. The Jim Walter mines are over 2,000 foot deep, most of them, varied from I'd say 1,800 to 2,200. They deliver somewhere around 36,000,000 cubic foot of methane in a 24 hour period. I had the very first ignition at Jim Walter No. 7 Mine and velocities of greater than 30,000 cubic foot of air over a continuous miner. I've been on a long wall when it took 100,000 cubic foot of air off the face, and then it feels like you're working in a sand storm with the dust. Again, I don't know if the airstream helmets are more or less to keep the dust out of your face and eyes because it pits you. It feels just like somebody has a sand blasting hose blowing you in the face at times. What I would appreciate, and I guess what would make you I guess more sympathetic, more in tune with what these people have to work under, is on a normal day, and I'm not asking much, go spend the entire day with these panel members on that long wall face or out by one of the belt headers or deal directly with one of these people that have black lung. Their life is already shortened. To expose them to 1.26 or anything greater than one milligram and, you know, the standard -- there's quartz in the Jim Walter mines in the Blue Creek seam and Shell Creek. It's on the Blue Creek seam in Alabama. I have personal knowledge of what's taken place there, and that's why I'm -- I'm not shorting any of them, Pittston or any other operations anywhere else. They have similar problems, and they will address those specifically, but I want you to go back to the drawing board. This, what we've got right now, won't work. I'd appreciate, and I guess I probably got angry right out of the chute when that proposal, and I don't know what I did with it, came out for doing away with black lung. I don't know if that was a typo. It indicated that it was a quote from MSHA. Fellows, what you all got planned will not do away with black lung disease or coal related diseases as far as respiratory systems are concerned. Thank you. MR. NICHOLS: Do you think those Alabama long walls are in compliance day after day after day downwind of the shear operator? MR. DEWBERRY: Now, sir, but I'll say this. At one time the operators screamed that they couldn't live with those 60 samplings. In most cases, they beg for it now. The technology is there. I don't want to steal the thunder from any people, but we've got committees that have worked on a collaborative effort with the operators that have gotten the long wall standard to one percent, and they'll elaborate on that. The technology is there. When those operators are required to do it, and we're talking 33 samples a year. That's all they've got to dodge. You've got -- let me tell you what you've done for those operators, and I know some are here today. You've given them the opportunity. You've lifted the burden of proof out of dust problems. They're no longer going to be accountable for that. We pushed for that. However, they've only got six shots a year that they've got to dodge -- that's it -- instead of 33. MR. NICHOLS: Let's back up there a minute. Would you not agree that a good plan that has been verified to work at a high production level gives a lot of people the opportunity to look on a daily basis to see that compliance is going to be achieved, that the mine operator, the miner, the inspector, that those controls are in place on a daily basis, and they've been demonstrated to work to achieve compliance for the two milligram standard? MR. DEWBERRY: I would agree that if we leave it at two milligram standard and if there is verification that they're in compliance -- not just six times per year, but on a normal production day and I'd say within the parameters of what the advisory committee had recommended; not 68 percent, but at least, you know, 90 percent or something like that -- this is what these people work under is the 90 percent when they're sampled there under there every day not for 480 minutes, but for nine, nine and a half hours, whatever their work day may be. Yes, sir, I think that -- and I have confidence in the technology. Nobody ever dreamed that we would be able to mine coal in 36,000,000 cubic foot in a 24 hour period of methane, that deliberation. The dust levels I've seen? I've worked in Wind Gone running a continuous miner trying to allay the dust when it would choke you, the thick atmospheric -- the dust wasn't as bad as the Wind Gone, the wetting agent. The same is true on these long walls, but there is technology there, and that's what we need to hold them to the letter of the law and the promise of Congress and the '77 Act and make them have the controls necessary to maintain it at that level. I think in line with what you're saying, if we had verified controls, how are you going to verify it if you don't check it but six times per year? I mean, you're talking bimonthly. What happens to the rest of the time? Are we going to set up I guess a preliminary investigation to get them in line? I don't have a problem with checking them at random or whatever, but these operators know when the schedules come around, especially if you've just got six times. They gear up for it. MR. NICHOLS: Well, bimonthly is intended to be a minimum. There are other times we choose to sample. MR. DEWBERRY: I understand that, and I read that, but let me assure you, and you and I both know the budget cuts, the money that you all have had to work with as far as an agency. We'd like to see you get all the money you could to continue on, but it's not there. In some cases, we would like to have I know six is a minimum on the point, but I think that the operators should be under the gun, so to speak, you know. The advisory commission had recommended continuous monitoring. We monitored CO continuously. They had the technology and the ability to monitor the dust, I mean, on a continuous basis. That would give us a true reading of what our people were exposed to. I don't know if you've been at any black lung hearings where somebody has contracted black lung where they've already died and they've cut them open and they've said yes, he had it and still fighting to get it. The person is deceased, but his family, you know, they're entitled to black lung. These people are dying every day from it. I know. I've got some close friends, as I stated, that I worked with that have passed on from this disease. MR. NICHOLS: I don't disagree, but Davitt McAteer has put a lot of emphasis on trying to identify black lung with his pre-test x-ray program, and then a package of dust rules here that we can agree to disagree on, but I can tell you he's trying to get at the problem. Now, with all the discussion about the four milligram standard, the dust standard being raised on the long wall, that's not true. I mean, we're talking about some number of people working downwind where the problems cannot be engineered away. If there's engineering controls in place that are taking care of the problem, companies need not ask for the use of airstream helmets. The four milligrams is the protection factor for that helmet. That's not to say that people are going to be allowed to go up the standard to four milligrams. What we're trying to do is identify any situation where there's some protection for the miner, either engineering controls or, in the small case, some consideration for these airstream helmets. MR. DEWBERRY: In addressing that, I could understand this plea for giving that much leeway if our industry was just developing. Long walls has been in the mines since 1978 in Alabama. When they have to, they comply. When they're put under the gun, I've seen so many times these operators come up with a brilliant idea along with the union to abate a violation. That's what we need to do. I'm not saying fine our operators out of business. We want them to operate as much as anyone else. All I'm saying is that we need -- we got the laws here. I mean, it's clear in here to give these allowances or waivers, and it's just for an 18 month period. In some cases it is extended where there's certain mitigating circumstances, but I don't think anybody in here, unless you go back to the law, has the authority to get in conflict with what this Act is proposing. It guarantees -- the way I read it as a common coal miner, it guarantees me that I ain't going to have to work in above two milligrams. As a Part 90 miner, I won't have to work above one milligram and not with any two and two makes five and a half equations. I know it's got allowances for quartz and it addresses it under 202. The Part 90 and the Federal Register addresses it also. I think that we need to go back to the drawing board and take the advisory committee's recommendations in place and take this Act. Maybe we need to go back and read it and what its intent is and go from there. Let me say that I have personally contacted some of the legislators in Alabama and brought this to their attention. I would just ask that you do go back to the drawing board and take the advisory committee's recommendations and let's come up with something. We appreciate what gains we did make, or I do, on behalf of the members here in District 20. However, they're not enough. There needs to be single shift sampling. That's a blessing because, I guess, if a miner is exposed to three percent on one day, don't take the five samples and then say well, we've got you down to .9. You're okay. I mean, that's ridiculous. If you're in that environment you're in that environment, and I've never known of one day where that dust has helped anybody. It's a killer every day that you're in it. What you need to do is go down to one of the coals mines, especially one of these with a high velocity of air, and get on that long wall face and hang in there all day. Do you know what? You'll come out with a different feeling. You'll say, number one, I don't want to put one of those airstream helmets on. I want to wear me some snow goggles to keep it out of my eyes and wear a bandanna around my face or a respirator even upwind of the long wall. Some if the best things that ever happen before we starting washing these shields down. That cut down a lot of dust even engineering devices to put sprays on these shears, on these shields, would help tremendously. At that point, I think some of these operators thought well, we can live with this 060 sampling now and wanted it back, but that's a different story. We're here to deal with the specifics of your regs and your proposals. I'll say one thing. You all put together one heck of a package because I have read and read and read and went back again, and I know that the majority of these people went back and read it again. You know, I call myself being pretty good at going back and reading collective bargaining agreements because I negotiate them and pick the ifs and ands and buts out of it and try to get a concise meaning or write a memorandum of understanding to it on exactly what the meaning is. If this was a collective bargaining agreement, your proposals, we'd be back writing memorandums of understanding every day because the operator don't think the way I do. The operator looks for ways to get around it, and I look for ways to enforce it. MSHA is caught right in the middle to try to please both sides. I'm going to tell you. Don't put this on an MSHA inspector or CMI because he'll have a heck of a task to do every day. He's already got one in the first place. Thank you. MR. NICHOLS: Thank you, Daryl. (Applause.) MR. NICHOLS: The next presenter will be Bolts Willis of the UMWA. MR. W. WILLIS: Thank you, Mr. Chairman, for having us speak at this meeting today. My name is William Bolts Willis, W-I-L-L-I-A-M, B-O-L-T-S, W-I-L-L-I-S, Box 126, Pratt, P-R-A-T-T, West Virginia 25162. I'm the chairman of the mine health and safety committee for Local Union 8843 located at Cannelton, West Virginia. We have a couple of distinctions at our Cannelton mines. We've been there -- not me in particular, but we've been there for over 100 years in continuous operation. We had the first long wall in the United States of America. We had the first mountaintop removal mine in the State of West Virginia, and we're still operating today and producing more coal with less people than ever I think anyone could imagine some ten or 15 years ago. Some of you on the panel have known me for many years either while I was working for the MWA International Safety Division and also for the State of West Virginia as Assistant Commissioner of the Department of Energy. At our local union we have three underground mines, one four section mine, one one section, one tunnel mine and one strip mine and a large preparation plant complex. As I've stated earlier, some of you know me personally, so I will address you as my contemporaries as so you are. In 1969, I started working underground at the No. 8 mine at Cannelton and worked at several of our other mines at the same general location since we have a common seniority system where I worked. I've worked in low coal, 28 inches; medium coal, 40 inches; and high coal up to 12 feet, as well as working on the surface. I've worked on conventional sections, Wilcox sections, continuous miner sections and long will mine operations. In all these areas, a common factor is present. Coal dust. We're here today to respond to these proposed rules to protect miners, or us, from excessive coal mine dust. I must say from reading those rules, it has been difficult to understand what is really being proposed. All 118 pages, written not to what I learned at the Mine Academy over 20 years ago from many of know instructor Wayne Maxwell who taught creative writing. It's not clear to me in these rules, and I'm sure it's not clear to the rank and file miners. It's muddied, to say the least, in many instances. I also must say as an adjunct professor at the local university, the Institute of Technology, my students would probably have problems understanding what these rules say and how they're written and at what level they're written for comprehensive who doesn't have a college education or hasn't been trained in other areas. That's not to put down any of us miners. They's just tough to understand. I think probably everyone here would agree with that. I will just give you a few examples. If I were to enhance dust control measures, the first place I would look at it would be to sample continuously since the sampling devices to monitor dust are available and have been for the last 15 years. This type of sampling could shut off the machinery immediately when high concentrations of dust are detected. Stop period. We wouldn't have to worry about hiring hundreds of inspectors. We wouldn't have to worry about coal companies going through the frustrations of trying to figure out where and when to control the dust and those things. It would be apparent that it was happening at that time, and you probably could readily see it, as I have in testing some of these devices several years ago. Also, I would take over the program fully. That's not taking away the responsibilities, of course, of the operators, but to make the approach to sample six times per year. As some has stated already, this proposal seems to be saying that we will sample on that many occasions. If I were the operator, if I couldn't come up with a system to control dust on six dates per year with advance notice inspection on the advance time that it would take the inspector to get to the section, then I wouldn't be much of an operator not to be able to control dust on those six days. I cut the production in half and clean the scrubbers every 15 minutes, and that would be the end of it. There's no dust there. Third and last, because other people as well are going to speak on these things, as Tom has spoke on them and also Daryl spoke on them previously, other issues I have great concerns. The proposed rules will in many ways set back to the post 1969 dust control protections. May I just say that MSHA recently conducted, and I think it's been alluded to earlier either by Ron or Marvin, that the x-ray testing has been going around the United States. It's been to our mine. A good friend of mine that I worked side by side with since starting underground in 1969 -- he started in 1968. He was running a cutting machine the first shift I worked with him. He ran that cutting machine and has since run the continuous mining machine and still is a producing miner/operator today. For all these years he took the x-rays as some people encouraged him to do. He's already received 25 percent black lung payment from the State of West Virginia through the x-ray process system going through the hospitals. He found out that he had at least 25 percent disability. Lo and behold, when he got the results back from the x-ray system that MSHA had put on the property guess how much black lung he had? Goose egg. Zero. I'm telling you. I was with him last week, and I stood right besides of him. He could barely breathe, but he loves to mine coal, and he loves to run that continuous mining machine so it's pressing on me as a safety committee man and as a former representatives of the miners throughout the United States and working with many people in Alabama who have been in the mines, almost in every state, that we must be more diligent to see that we take greater steps than what has been proposed today. In closing, I took a survey last night of the miners in this room, and we were about half this size, about how many chewed tobacco or did snuff. Over half did snuff or chewed tobacco. Well, it makes me wonder not very much because I use this in illustrations when I teach at school or talking with people that are not in mining and most recently when I was in southern California about a month ago on why miners act the way they do. I'll basically go through that, and then I'll be finished. Everybody -- I guess not everyone, but a lot of people wonder why miners wear hats. You see various and sundry miners wearing a hat. I also wear a hat. Here's a hat that we used at a recent rally that says Keep the Promise. You know Doug Day, and that's sort of what we're saying here today is keep the promise, MSHA, in doing what the Act stated in reducing dust standards. The reason we wear hats, and a lot of times they even wear them in buildings, which at one time was not acceptable. My former local union president wouldn't dare let anyone wear a hat in a building in our local union meetings, much less curse. He was just totally against that. Everybody took of their hats at that time. He's passed away. He died from black lung, as well as my dad. When my dad died, prior to his dying he had a lung removed. Dr. Prevaschultz cut away that lung. He had advanced stages of black lung. Lo and behold, the death certificate said he died of cancer. It didn't say anything about black lung. So wearing the hats and sitting around like this at a ball game, and I'll make an illustration as I go away from the mike and the recorder. I'm going to be squatting in low coal. You sit around like this when you work low coal. People make fun of miners for sitting in this position. Well, I'm very comfortable sitting in this position. I can sit at a basketball game or a football game for the whole game like this. When you work low coal, you work that way every day of your life and it doesn't bother you. It's comfortable. With the other issue, how many drive pickup trucks in here? I'm one. I see a lot of hands going up. The reason a lot of us drive pickup trucks is that the roads are so bad going to the mines in eastern Kentucky and Virginia and Alabama and West Virginia that you have to have a pickup truck to get to work. So back to chewing tobacco. We know why the miners chew tobacco. If you work in a mine, you want to allay the dust. You get hooked on the tobacco, and you chew tobacco and do the snuff to keep from coughing. That's the reason. You can go around to any of the coal mines and see a lot of people chewing tobacco, but it's a stigma that's put on us as miners. People make fun of us for doing those things that it's a hazard of the occupation. So with the chewing tobacco and the dipping of snuff illustration, as I finish this we can't allow the dust that we breathe every day at work that we can do something about, and we have the facilities to prevent these things from happening. As I've stated earlier, I'm not here to condemn any of you for trying to make the system better, but please take a step back and listen to us so we can jointly make our workplace a healthy place to work. Thank you. (Applause.) MR. NICHOLS: You mentioned advance notice on the dust sampling. There is no advance nothing on compliance sampling. Also, when you were talking about staying in compliance for these six sampling shifts that the operator could cut production in half. You can't do that. I mean, the operator is going to be required to keep production records. These plans are going to be approved on the tenth highest production number, and that won't work. By today's sampling, an operator can set up ideal conditions probably and sample and they won't have any problem with operator sampling, but not under this rule. The plan is going to be verified at a high production level. We're going to have records that verify that production. There's going to be no advance notice on compliance sampling. MR. W. WILLIS: I hope that's the case, Marvin. I hope that's the case. MR. NICHOLS: That's what the rule says. MR. W. WILLIS: I know what the Act says. I know what MSHA does not. That's supposed to be the case, but I also know that many miners at our mine know every day that an inspector is going to be there before he gets there. MR. NICHOLS: Well, I would expect at some of these big mines that's an every day occurrence. I mean, our people are there about every day. MR. W. WILLIS: Well, that's before they start, Marvin. Before they start, they're still banned. I know that we have fraud in the system. I'm not saying everybody from MSHA is like that. I have a brother who's an MSHA inspector and been an inspector for over 25 years, but it really concerns me. And then another point, and thank you for clarifying that. Another point that something strange seemed to be about the hearing that they had in Morgantown, and it seems like it may be strange here today, that the operators are not giving any testimony. That kind of makes me wonder. It must be a pretty good system for them. They've not saying anything about it, and they're not complaining about it usually. As Carl Boone would note, I got ran out of a meeting one time on Wilcox Mines when I went to the Supreme Court. We basically outlawed them in the State of West Virginia. Then I came down here and gave a speech and was