IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES ) Pages: 315 through 515 Place: Prestonsburg, Kentucky Date: August 11, 2000 DEPARTMENT OF LABOR Mine Safety and Health Administration In the Matter of: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES, ) Friday, August 11, 2000 Convention Center Holiday Inn Highway 23 Prestonsburg, Kentucky The hearing in the above-entitled matter was convened, pursuant to Notice, at 8:01 a.m. PRESENT: MARVIN, NICHOLS, Moderator RONALD SCHELL LARRY REYNOLDS, Esq. THOMAS TOMB GEORGE NIEWIADOMSKI EILEEN KUEMPEL PAUL HEWETT CAROL JONES JON KOGUT REBECCA ROPER RONALD FORD C O N T E N T S SPEAKERS: PAGE: George Hobson 318 Bill Sharp 322 James Bell 323 Glenn Loggins 338 Michael Phillips 340 Ronnie Griffith 341 Frank Winstead 342 Robert Acklin 346 C.A. Phillips 349 Bruce Dotson 353 Mike Green 358 Ricky Lester 358 Chris Taylor 360 Wyman Owens 365 John Nolen 367 James Linville 373 James Jarrell 377 Joe Urban 385 David Gooch 424 Rodney Smith 434 Larry Hatton 438 Bobby Mullins 440 C O N T E X T (Cont.) SPEAKERS: PAGE: Tom Wilson 443 Joseph Main 459 P R O C E E D I N G S (8:01 a.m.) MR. MARVIN NICHOLS: Good Morning, Everybody. Welcome to the second day of the dust hearings. Our first presenter this morning will be Jimmy Dunn. Is Jimmy in here? Is George Hobson here? MR. HOBSON: Yes, sir. MR. NICHOLS: Come on up, George. We'll work Jimmy in next. MR. GEORGE HOBSON: My name is George Hobson. That's George, like George Washington. But the Hobson is H- O-B-S-O-N. I'm from central Illinois. I'm a Safety Committeeman on straight midnights. I've been a Safety Committeeman for close to ten years. I've got twenty-three years in the mines. I've read these regs. I do thank you for letting us from Illinois come down here and have our say. I don't understand them, most of them. I don't agree with a lot of things. I believe that we are getting less out of it. And from everything I gather, most of it pertains to the preamble and a lot of it is not going to be written as actual rules or laws. I don't think that's right. And from hearing the one company representative speak, the companies are going to come out with a protest or whatever on this, or whatever litigation they can. And, I think there's going to be abuse. And, I would like to see you sit down and rethink this. Instead of going with this preamble, this lawyer can sit here and do all his talking he wants, he's still a lawyer in my book. I'm sorry. MR. NICHOLS: This is him, right here. MR. HOBSON: I know it, I know it. He's still a lawyer. And I'm sorry, I don't trust lawyers. Unless he's on my side. But really, I would appreciate you sitting down and rethinking all this. And of course, Illinois is not represented too much out here. And, we're an endangered species there in Illinois, as well as most of the coal miners in this area, in this district. Not only environmental laws, but the way things are in the coal industry today, everything is faster -- when I started out, we was running twelve units and we didn't get one third the coal that we're getting out now with less people. Our belts are running faster. Our machinery is running faster. And whenever you do this, we're putting more coal in the air. And that's the reason why I think we really need to be stringent on this dust thing. I've gone home -- I'm an examiner. I'm an outby person. I do go to the faces. On midnights, we don't load a lot of coal because it's supposed to be a maintenance shift. But when they are loading coal, even with the scrubbers and stuff -- and, they're supposed to have their dust parameters -- if them inspectors are not there -- and I'm not saying one side; both sides are guilty. Our people's guilty, too. We got to talk to them all the time about keeping our dust parameters the way they should be. So the more inspections, or the more monitoring of even the company inspections -- if you take it over, I think the company should still be responsible for some of their dust sampling, too, to keep on top of this. I don't believe the records is going to do it. My opinion is record keeping and you going in to check records isn't going to do it. We've got records on other things that the federal is supposed to be in, and our state's supposed to. Somehow it gets juggled around, forgotten or whatever. So I really think it's in the best interest of all miners, and the miners in Illinois, that you sit down and rethink this. And there's only one other thing that I'd really like to -- I see these ladies, they're on this panel, too. Right, with you? Have you ever worn any of this equipment that they say would help out if the engineering and administrative things can't keep the dust off the coal miner? Have you ever wore any of this stuff? Respirator? I'm not talking about your helmets. I'm not in with your helmets. I'm like everybody else. But even a respirator and you men with glasses, have you ever wore a mask to do painting or any odd jobs around the home? If you wear one of these and you wear glasses, they fog up, they make you sweat. And in the coal mines, it's not like walking around here on the floor. You're walking over coal. You're falling over stuff that other people might have left behind. Like me, I walk along belt lines and stuff. There's coal along there. And whenever I wear anything like that -- of course I'm getting old; I'm one of the older miners at our mine and I have to wear tri-focals -- and any time you put something on my face, it just -- and I've been either blessed or punished: I got a pretty good snout on me and there's nothing that they've come out with that is custom fitted right now. So personal equipment to help out with the dust, it's good, but it's not the answer because we're in a dangerous environment down there. And any time you put something else on a person, you may help them for dust, but it makes other things a problem. And our conditions, it's been said, changes by the shift. It changes by the hour in certain weather, by the minute. And the job that I do and other outby people do, even though we're not up there where the actual mining is going on, our conditions is changing just as much. And like I say, with everything going so much faster, the air is moving more. We've got still the particles in the air. So please, sit down, rethink this. And get away from this preamble stuff. Put it in writing, if you do make changes, so that we can understand it, the company can understand it, and their lawyers can understand it, and we wouldn't be tied up in court with lawyers doing it. And with that note, I'm going to end. And, that's how every Illinois miner that I've talked to feels about this. But again, personal equipment is not the answer. It needs to be whatever you can come up with on equipment, air movement or whatever. Thank you. MR. NICHOLS: Thank you. Is Jimmy Dunn here? MR. URBAN: I haven't seen him, Marvin. MR. NICHOLS: Tim Birchfield? Bill Sharp? MR. SHARP: My name is Bill Sharp. I'm Safety Committeeman at Local 1969 in Illinois. I'm not going to beat this dog too much today. But I would present it, if you folks go back to the Advisory Committee and take their recommendations and think hard on it, you know, we're trying to stomp out black lung. And raising the dust levels and that isn't helping that too much. And, that's all I wanted to say. I just wanted to go on record. MR. NICHOLS: Okay, thank you. MR. SHARP: Thank you. MR. NICHOLS: Is Birchfield here yet? James Bell? MR. BELL: Mr. Chairman and the Board, my name is James Bell, J-A-M-E-S, B-E-L-L. I works at U.S. Steel, Oakgrove Mine, Local 2133. I've been a mine worker for thirty-five and a half years. I served -- I been serving on the Safety Committee for the last twenty-one year. And, I also sits on the State Board of Mine Examiners appointed by the governor, mine foreman certified, and I've been Safety Committeeman for about twenty-one year. I also serve on the contract committee and I sits on the State Council. I'm here today because my Local when they heard of this proposal, they looked at me because I represent about three hundred people at Oakgrove Mine. And we know, and we've been around for a while, I have, underground. I've seen things happen, seen things change, technology change. And when I went to work in the mine at Concord, U.S. Steel, we was conventional mining. Well, we didn't have the dust that we have now. But the miners still come out of the face, if it was a white guy, you couldn't tell what color he was because of the coal dust. Well according to the Act, they had to clean up, come up with a standard. We came up with a two milligram standard. It's to help protect miners from black lung. And I know we had a meeting in Lexington, been a few years back. And -- excuse me. We had a meeting in Lexington a few years back concerning black lung and coal dust. And we had quite a few people there on oxygen and they even testified. And, we know that black lung prevails today. And at our mine, we also have a longwall and we're running two CM units, which is one just starting up. And, we have quite a bit of diesel equipment underground. And from my calculations, looking at diesel equipment and looking at respirable float dust, you got two combinations there and these two is against the health of the coal miners. But the thing that bothered our people when they looked at this proposal, they was looking at MSHA to lower the dust standard, rather than raising the dust standard. And from our calculation, from my calculation -- it was hard for me to understand, I was sitting back here -- you said you didn't raise the dust standard, but from my calculation, I know that when you took one and add one to it, that was two. The point that I'm trying to make is that if you have a valve flowing with water, fifty gallons per minute, in order to decrease that to twenty-five gallons per minute, you have to close the valve. You can't open the valve and decrease it. So my point is that if you raise the standard to two point three, that's not decreasing. That's increasing, from my calculation. I mean, you know, I'm not a college student. Maybe they got some other calculation they can say that's a reduction. But, I can't. We also note that the Advisory Committee that was appointed, I guess by some of you on the Board here, and these fellows went out and did a hard, good job to get this thing where it's at. And from my reading through this thing, which is hard for me to understand -- I've been going over it for about a week or longer, still can't get the understanding of it -- but, I do know that they made some advice, giving you some advice and some recommendations. And, they're telling you not to raise the standard. And it looks like from your proposal that you did. So undoubtedly the Committee that you had, I don't know whether it was just a scapegoat or somebody you had to have to say you had peoples out there working on it. But, you didn't pay them any attention that much. But, y'all made your own decision because y'all believed that if you raised it, it was better to calculate it into two milligrams or you would have something to write a citation on. But if it reaches two point one, that was a citation anyway, and not only just a citation, we're looking at lowering of dust standards so that there will not be a citation with the perimeter check that they have around the faces. I know it because I'm a four time Safety Committeeman. I see a lot in the mines. And, there's a lot needs to be done. And I know that with all the technology that we have around throughout the coal fields, we come in with the longwall, we come in with the continuous miner, now we have scrubber miners -- actually you're putting people in dust, rather than taking them out of dust. There's actually some of the plans that I rejected as a committeeman as my point, that we don't need the people to be in this dust. We need to figure out a way that we can put them somewhere else. But it seems to me like I don't know where you get this calculation from that there's not as many contracting black lung, and they feel that you can raise the standards with it, and I don't know why. But, we need to lower it. So I say to you, the Board, today that if you will go back, as my Local sent me to ask you this question, would you go back and reconsider this thing and look out for the miners? Because the miners are the ones that's going to suffer in this coal dust. It's not going to be this panel and it's not going to be the operator. It's going to be the miners. Thank you. MR. NICHOLS: Thank you. I'm not a mathematician, either. But, do you understand how this averaging works today? Like let's say you've got four samples. You can have two of them at four milligrams and two at one milligrams. Then you can average that out and be in compliance where you've got two miners breathing twice the standard, or two locations breathing twice the standard and you can average that down to compliance. That's what we're trying to get away from with this single shift rule. Now I'll ask somebody else to try to explain the correction factor. Anybody want to have a go at that? MS. EILEEN KUEMPEL: It's a different issue. MR. NICHOLS: Different issue? Jon? MR. JON KOGUT: I appreciate what you said about one plus one making two, and I agree with that. The thing is that what you need to make the comparison with is not the two point three against a straight two, but the two point three against averaging together five samples. Some of those samples in the upperage, like three or four or something, and you can come into compliance, even though in those five samples, some of them might be as high as three or four. So that's what you need to compare against, the two point three that we're saying we need to have in order to have a high enough confidence level to issue a citation based on just one sample, instead of five. Now if a sample comes in at something like two point one or two point two, we're not going to consider that as being in compliance. We're not going to assume from that that the person, that the occupation from which that sample was taken is in compliance. What we're going to do those cases is come back and resample, to see if that first sample that we took just was higher than two simply because of a measurement error, or whether there's some reason to think that there is actually -- you know, that the plan is not effective in protecting that miner. If we get -- if we come back there and again see the concentration is at two point one for a second time, then chances are we're going to decide that there's a good possibility that that plan is not really effective, and there's a good chance that we'll go in there and require that the plan be reverified. Now when we have the plan verified or reverified, that shifts the burden of proof to the operator, to show that that plan is effective. So when we issue a citation, the burden of proof is on us to show that they're really out of compliance, that it's not just a measurement error. But when the operator of the mine has to demonstrate to us that the plan is actually effective in protecting miners on every shift, the burden of proof is on them. So even though the standard is a two point zero standard, in order to demonstrate at a high confidence level that the plan is effective, they're going to have to, in order to get that high level of confidence, they're going to have to show, if they're going on a single sample -- or single shift, rather, they're going to have to show that all of the samples that they've taken on that single shift come in below about one point seven approximately. So even though the standard is two, in order to get that high confidence level, and because the burden of proof is on them to show that the plan is effective, it's not going to be enough on a single shift for them to come in at one point nine. They're going to have to come in at about one point seven. So that's the same sort of situation that we have when the burden of proof is on us to show that they're out of compliance based on a single sample. Does that -- ? You want to say something on that? MS. KUEMPEL: Jon just explained the MSHA position on how they're enforcing that. And, I wanted to add that of course the joint rule with the single shift sampling, NIOSH has demonstrated the accuracy of the single shift sample. But, I wanted to underscore the importance and benefits that we all recognize with the single shift sample, and also comment on the frequency issue. There's been a lot of concern about reduced sampling under the proposed plan. And, I can understand those issues very well. I also wanted to point out that with the proposal for the bimonthly, if you take a situation where there's an unannounced visit to take the sample, that sample is used to determine compliance. I wonder whether you would feel that that's a more accurate representation of the actual dust exposures, compared to a system that's also sampled bimonthly, but the conditions are selected and then there's opportunities for additional samples which can be averaged in and diluted out. I think that you can see that the former case is more likely to give a realistic determination of the actual exposures. And that, in combination with a more effectively running system in the first place, I think are very key issues. It's equivalent if you have a machine, an automobile, say, and you know it's well maintained, you're going to feel safer driving that car and checking it now and then. Or, getting in a car that you know is not running right or you really haven't checked one way or another and now and then stopping to check, it's still not running right in the first place. The point is to get the system running right from the beginning. I think those are real key issues that would help to reduce the exposures. In 1995, NIOSH published a criteria document for the recommended standard. And in that and in the joint rule, we outline the studies that show that pneumoconiosis is a serious problem still. There's been a lot of reduction over the years. But, it's not eliminated. And, there is still risk. And, NIOSH is very concerned about reducing exposure to miners. And, the single shift proposal would provide more protection and more realistic samples for a given shift. I hope that helps to clarify. MR. BELL: I agree with single shift samples. But, we're looking at this span between them, like bimonthly sampling, you have something like fifty-nine days or more that a miner would be exposed to high concentrations of coal float dust, respirable dust. And under the contract that we have, our agreement, the United Mine Workers and the operator, in Article III, Section 9, it states that we have a right to a safe work place. If a coal miner would withdraw because of a high concentration of coal dust in his area, then it appears to me like the burden would be upon the miner himself to prove that he has a high concentration of dust. And therefore, that's where we come in as safety representatives, to be able to call MSHA to give us a sample, take a dust sample. And at that time while we're waiting there, MSHA is not available, don't have anyone available at that time, we're at a stand still, and this person could be forced to go back in and try to work because MSHA said they could do this. And, we're putting our peoples at risk with the high concentration of respirable dust. And, I don't think that's fair to the coal miners. I think we need more sampling. If you're going to sample a single shift, I feel like we need more than a bimonthly sample. If we have something like a monthly sample, or if you sample twenty-four times a year, I feel, the coal miners would feel that they're being protected by MSHA, even if they was doing the samples. But the way it looks now is that the burden would be upon the miner himself. And, he's the one that would be sitting in the middle. He'd be sitting in the middle of the operator and MSHA. MSHA's saying, "it's okay because we've already sampled and you're in compliance." But over here at the same time, this fellow can't even see. Visibility is dim. And, they're breathing this stuff. Airstream helmets are not really going to help you that much because this respirable dust -- we have a doctor here and I know, because we have been through this thing so many times -- the particles are small enough to go through that airstream helmet, along with air that's able to get into your lungs. So I feel like that we have had shear operators come off the face with airstream helmets and their face be as black as this mike here, and they have on the airstream helmets, so you know the respirable dust is getting to them. It's just a matter of time before these peoples contract black lung. At our mine, we have several Part 90 miners. We had some had to come off. We got some now that have black lung. It's at a certain stage now. But, it's still prevalent in the mines right now today, black lung, because there is so much dust. And with these continuous miners, these scrubber miners and the shear, longwall shear, and this coal is so dry -- in Alabama, the coal is so dry -- it'll be airborne in a minute, this respirable dust. So, we're looking for your help. And, that's what we need. MR. NICHOLS: This bimonthly sampling, that's the minimum requirement. If District Managers believe they have problems with an operator not maintaining the dust controls in the plan that's been verified, they can choose to do more sampling. Plus, I think MSHA is responsive to 103(g) complaints. I mean, if you've got a problem, you have that avenue. I would just go back to the sampling, you know, the way we average today, there are miners out there that could be legally out of compliance the way we average these samples out. And, that's not a good situation. A single shift would cure that. Okay? Thanks. MR. BELL: I have one more question here. I agree with that, also. But, we would like to see some rules in the policy, some rules in your policy that states that when the company is at a certain point, that this is a requirement by MSHA, that you will step in and either verify the plan or disapprove the one that we have in place. See, the burden of proof right now, what you're telling me is upon the miner or the miner's representatives to file 103(g), and I don't think that's the way to go. MR. NICHOLS: No, sir, that's one avenue. If we've verified the plan, posted it, the miners understand it, the Safety Committees understand it, it seems to me like that's pretty good compliance leverage there. MR. BELL: Well, let me ask you another question: At the same time when we're out of compliance, or we feel that they're out of compliance or not following the verification plan, if a 103(g) is called in, what time are we looking at that MSHA would respond? Is this a four hour response or twenty-four hour response or forty hour response? But, our people would be exposed to this dust at the same time while we're waiting on MSHA. MR. NICHOLS: Well, what's our general response time now? It's pretty good, isn't it? MR. BELL: For 103(g)? MR. NICHOLS: Yes. MR. BELL: Well, we've had several down there, you know, and I noticed that it's not 103(g) on the code form. 103(g) is the one that if you have a regular inspector there and he's not well trained in dust control, then he would just only go and check whatever he's qualified to check. And at the same time, he don't have the instruments with him to check for dust. So the inspector on the spot can't really check. You have to have someone with the instruments to check it with. So therefore, if you call a 103(g) in on a regular inspection, well the inspector, he can't really protect that miner, unless he have some means to protect him. Now, he says he can't shut it down unless -- I mean, you know, you can say you see dust flying through the air, but this fellow is working in a high concentration of dust, but the way to prove it is to sample this person. And when we've got him in there at this time, we need to sample him at this point, not wait two or three days. He might be able to clear it up by that time. But then you go right back into that mode again because most of the time when 103(g) is called in, it's pretty well cleared up before they get there because if they know they're coming, they're going to clear it up before they get there. MR. NICHOLS: I can only tell you we've got a lot of dust pumps in Alabama. There's three avenues for sampling. One is the minimum bimonthly. The other is if the manager chooses, to do some more sampling and then, through a complaint. MR. BELL: Well, we know -- and I'll leave this with you in closing, about the miners -- long before I went in the mines, I started working in '65, as I reported, but prior to that, I was in a community where there was a lot of coal miners working in the mines. We knowed there was a lot of coal dust, because there was a lot of exposure around. I got some of the history of some of the mines that was in Alabama owned by different companies that had exposure caused by a high concentration of float dust. And also, we know that a lot of people died over the years, and didn't know what they were dying of because they didn't know anything about black lung. And today, we have a law that is in place, trying to help protect miners from this. And, I think we have fewer cases than we had in the previous years, over the years, of black lung. And, I know the coal miners fought it real hard, their leaders fought real hard in the Congress, and in this country and in other countries, to try to eliminate black lung. And MSHA even has stickers they put out saying, "End black lung forever." So we see right now that that's just a slap in the face from what you said you would do. And, coal miners have fought and fought and fought, and worked hard and died, agony in death, trying to get a better work place to work and eliminate this coal dust and bad conditions underground. So we are here today, as my members sent me here to this panel, to ask them would they go back and reconsider the miners, and think about more sampling, if they were going to take control, more sampling, and make sure the miners have a clean environment to work in. That's all I have. MR. NICHOLS: Thank you. I think you can sit and disagree with these rules, but I don't think you can say that Davitt McAteer, the Assistant Secretary, is not trying to deal with black lung disease. He has established this x-ray program, where we're doing free chest x-rays to try to get around to all the miners over a five year period, and then put these rules in place. Now you can disagree with the rules. But, you can't say that MSHA is not interested in ending black lung. MR. BELL: I didn't say that. This (indicating) says it. MR. NICHOLS: Okay. Has Jimmy Dunn shown up yet? All right, he's off the list. Tim Birchfield, has Tim shown up yet? MR. URBAN: Apparently not. MR. NICHOLS: Glenn Loggins. MR. LOGGINS: Mr. Chairman, and other Members of the Panel, my name is Glenn Loggins. That's G-L-E-N-N, L-O- G-G-I-N-S. I would like to thank you for the opportunity to speak. I'm a coal miner from Alabama. I'm a UMWA Safety Committeeman, Local 2245. I work at Jim Walter Resources in Brookwood, Alabama, Number Four Mine. I have twenty-three years mining experience, twelve years on the longwall. I've been a longwall jack setting and a shear operator. We've tried the airstream helmets. To use the airstream helmets, when we tried to use them, we had problems with them fogging up. And in water, dust got on the face and you couldn't keep them clean. The face shields just fog up and gets covered with dust and you couldn't see. It's hard to breathe. Filters got stopped up. So, we stopped using them because, you know, it's useless. We mine two seams of coal. And, we got fifteen to thirty inches to move in. When there's rock rolls out in the face, if you wear an airstream helmet, you couldn't see it. It'll just roll out, and we have people hit with a rock without airstream helmet, just from visual problems, not being able to see it come across, when they have their head down and it'll hit them. I feel we have enough hazards on the longwall without adding to them. Mr. Chairman and other Members of the Panel, in May of '96, I spoke to the Federal Advisory Committee in Charleston, West Virginia. I stated how bad longwall dust sampling was being manipulated on our longwall in Brookwood. We sampled the longwall by 060 sampling. I described how the supervisor would wear the dust sampling pump under a raincoat and stay on the tailgate, downwind of the wall water sprays, instead of being where the dust, coal dust was generated. Since that time, MSHA hired that Jim Walters supervisor as a federal mine inspector. We sure appreciate that, Marvin. We're glad he's gone. And, you solved that problem. After reading this proposed rule, I want to ask you to go back and address the issues the miners raised that spoke before. Thank you. MR. NICHOLS: Thank you. Mike Phillips? MR. PHILLIPS: Good Morning. My name's Mike Phillips. Well it's Michael, M-I-C-H-A-E-L, P-H-I-L-L-I-P- S. I'm Safety Committeeman at Shoal Creek Mines, Local 1948. And, I want to appreciate what y'all are trying to do. It sounds good, if you can understand it. I can't. But, you're looking at a third generation coal miner. And, I'm the last. The first two are gone from dust. If you'll look around this crowd, you'll see a lot of people that probably won't be here much longer, because this dust is killing us. You just don't understand, unless you're in it. The single sampling, I don't understand it. I hope it works. But, I wish that you would really look to the people and take it in your heart to do the right thing, because it is killing us. I could sit here and talk about airstream helmets, longwalls, I've been on all of them. I got nearly thirty years. But, y'all have heard it. I don't need to say it. I hope you understand what I'm trying to tell you, and take this to heart. These men are serious. Thank you. MR. NICHOLS: Thank you. Marcus Shepherd? Ronnie Griffith? MR. GRIFFITH: I'm Ronnie Griffith. I work with UMWA. I'm on Safety Committee at 1948, Shoal Creek, Alabama, work for Drummond Coal Company. I appreciate the time y'all took to listen to us. But these six shifts y'all come up with, all y'all going to sample, we got two hundred and eighty-three pieces of diesel equipment in our mines. We got two longwalls and they're talking about putting another longwall in. We got seventy-five people outby. And, I was watching this morning out here on the highway, we got three and a half to twenty- five inches -- we have two roadways. The people at the face are eating a lot of dust. But, our outby people are eating it, too. I talked to a boy just before I left, forty-nine year old. He's got thirty years in the coal mines, just like I have. Forty-nine year old, he worked outby the last ten years, he's pulling an oxygen bottle behind him. And until you sit and see one of your union brothers -- this is ludicrous to go from thirty-six to six shifts taking dust samples. Dust is killing us. You ain't got to be fifty-eight or sixty-eight to have black lung. We've got approximately eight people that the doctor has took out of the mines since '96 at our mines. And you know, when I was a young boy, I listened to coal miners talk and I thought, "boy, I know all about coal mines." But until you go in there, it's a different ball game. It's a monster that'll eat you up. And, I'd appreciate it if y'all would go back and take this, because when we go back to Shoal Creek and try to explain this to our people, they're not going to buy into this. It's going to be hard to sell to them, because when you go home at night and clear your throat and you spit old black dust out of your body, I can tell them all this is going to work, they told us up there this is going to work, this'll be good for us. They're not buying into this. And I'm asking you to go back and really take a hard look at this. That's all I got to say. MR. NICHOLS: Okay, thanks. Is Shepherd here yet? Frank Winstead? MR. WINSTEAD: My name is Frank Winstead, F-R-A-N- K, W-I-N-S-T-E-A-D. I'm from Local 2305 and I'm a Safety Committee Member. I intend to keep mine short and to the point. The first thing is when we sample, what is our objectives? If our objectives is to get a good, representative sample to work with, we should sample more frequently in everyone. Everyone knows that we have good days and we have bad days. Some days our systems just won't work. To really know what a person is working in, we need to take a lot of samples each year. We feel that random sampling by MSHA keeps the companies more honest. I also believe that hanging more weight on the workers is wrong. We already carry a great deal of weight in an awkward way. We all seen the guy that was sitting back here with the apparatus. Who here is from NIOSH? Okay. If I put a brick right here, and do this (bending from waist) for a year for eight hours a day, is that going to injure my health in time to come? That's the point I would like to make to you. Everyone that has talked so far wants engineering changes that involve things like water sprays, scrubbers, air velocities, wetting agents, not heavy equipment that hangs on miners' bodies. I also feel that you should keep the language simple. Why do you want to make things so complicated? When you get down to it, what it's supposed to achieve, it can be made real simple. When things are made complicated, people tend to think that someone is trying to hide something from them. And from the sound of what I've already heard, there is a lot of untrust out there. Why is that? I can compare this seven hundred page proposal to trying to fill out my income tax. To get the best results, I have to hire somebody to tell me how. That by itself is a major injustice to all the miners that it affects. I think it should be more concise. No if's and but's. Also, there should never be any avenues that an operator can take if they can not comply, because if it takes less effort, these are the avenues that they will probably want to take. Continuous monitoring is the best way for a good, representative sample. I believe it can be done and done at a low cost to MSHA. We need a good, representative sample to work with, if we are truly to address the problem. This is a very important issue to these miners in this room. We are all trying our best in our own ways to let you people know we are truly concerned. We want more than this. In conclusion, I think you should go back and look at what the Committee recommended. Come back with something simple and concise that keeps the levels, all the levels less than two milligrams. Sample everyone on a frequent basis. Make it a rule. Thank you. MR. NICHOLS: Thank you. MR. HEWETT: I wanted to ask him some questions. MR. NICHOLS: Frank, can you come back up? MR. HEWETT: Yes, this is Paul Hewett of NIOSH. Did you say you work on a longwall? MR. WINSTEAD: Yes, sir, at one of our mines, I worked on a longwall for a while. MR. HEWETT: Okay. MR. WINSTEAD: I'm not currently. Currently I'm a belt examiner. MR. HEWETT: Low coal? MR. NICHOLS: Hey, Frank, will you move over and speak into the mike there? MR. WINSTEAD: Am I all right now? MR. HEWETT: This is a low coal longwall? MR. WINSTEAD: Well, it's between forty-eight and fifty-two inches. I think that's pretty low. MR. HEWETT: So whenever you get under the shield, it's going to be -- MR. WINSTEAD: Right, even lower than that. At times, it's really low. At times, you know, we're really bent over. I think I know what you're getting at. MR. HEWETT: You never have any chance to stand up, do you? MR. WINSTEAD: Right -- well, no. No, unless you get to the headgate, and it's possibly, probably this (indicating) angle most of the time. And then, the operators have something in their hand, so they don't have the -- they can't do this (indicating). They can't prop their weight, the weight that they have out here, this arm, it affects you right here. You people deal with that a lot more than I do. You know a lot more about it. MR. HEWETT: I just wanted to clarify that. Marvin, is it possible for me to find out how many longwalls have restricted head space, that are below a certain head height? MR. WINSTEAD: Ninety percent. MR. NICHOLS: Yeah, we have that, can get that. Thanks, Frank. Okay. Robert Acklin? MR. ACKLIN: Good Morning. My name's Robert Acklin, R-O-B-E-R-T, A-C-K-L-I-N. I work at U.S. Steel, Local 2133, District 20. I got thirty years in the mines, and I am a Safety Committeeman there. First of all, I'd like to say that we need more sampling, more than six times a year. To me, that's ridiculous. And, I wanted to touch bases on what the young lady over there said this morning, that sampling -- I mean, announced visits or unannounced visits would help. And, I don't really know if that will. I think basically it wouldn't, because before you go on, we have to let the company know exactly where you're going. When we get there, they are ready for us. They're ready for their sample. In fact, if they're not ready exactly, I have seen times where equipment would break down where they can't sample it. I don't know if that's accidental or however you want to say it. And what you said this morning, Mr. Nichols, about the 103(g), it's the same thing. Before we go on there, you have to let the company know. MSHA has to let them know why they're there, if they do have a 103. Once we get to that area, it's already been taken care of or they're ready for us. If the sample is going to be good, I just think we need to have it more than six times a year because we need to keep the operators on their toes. And I think having it more than six times will keep them on their toes, because if you just go that little few times, they're going to always be ready for us. The testing on the outby people once a year, that's definitely not enough, by far, by any means. We miners here have been put in dust far too long. The survey that has been taken that it was 18,245, I think, coal miners that has died from black lung -- and, that dust is really a killer. We don't none of us want it. What I want to know is if we did get it, we couldn't get benefits for it because everywhere you go, they say you don't have it. I'd like to know if we did, we wouldn't get any kind of benefits for it. And being a Safety Committeeman, I want to touch bases on one thing, the airstream helmet. I get plenty of complaints all the time about the type filter that's in there. It used to be white, I think. The filter used to be white. They could breathe out of it better. But, that's supposed to be discontinued now. The filters they have now, they can't breathe out of. It fogs up. It's just miserable for them. And then when they do come out of the mines, the shear operator and everybody is like my people said, just be black as this microphone. And, the dust is still killing them. Before I became a Safety Committeeman, I was a miner operator. And to show you how the dust can kill, it got to the place that I started coughing it up, dust and stuff, every night in the shower. And, I would really get sick from it. And I know it had to be that way because I don't get that way any more because I'm not cutting any coal any more. So I would like for everyone to think, and just go back to the drawing board and look at this again. We have been in and out of compliance at our mine several times on different occasions. I don't have the answers. I wish I did. But, all we need -- asking of you is to help us, not hurt us. Thank you. MR. NICHOLS: We don't think sampling is unimportant. But, what we think is important is compliance day after day after day, good plans that are verified that will work, that miners understand, that mine operators understand, that MSHA understands, and that these controls will be in place every shift, not that we come out and sample and it's just random sampling, but there's a purpose, that we've got good, workable plans and sampling to check those. Thanks. MR. ACKLIN: Thank you. MR. NICHOLS: Lewis Burke? C.A. Phillips? MR. PHILLIPS: My name is C.A. Phillips, C, period, A, period, P-H-I-L-L-I-P-S. I am a member of Local Union 6026 located in Coalwood, West Virginia. I have been a member of the local for twenty-seven years. I am presently employed by the United Mine Workers of America. I have been with the Mine Workers for approximately twenty years. I live in Bluefield, West Virginia, and have been employed by the Mine Workers for the last twenty years. I'm not going to pass too much on what went on yesterday. But I have some issues that are key to me personally that I'd like to bring out in a prepared statement. Despite years of demands for increased miner participation to help oversee the respirable dust sampling program, the proposed rule does not contain those. MSHA's announcement that they are giving miners increased rights to participate in plan verification sampling does not exist. Can you show me where in the rule it's located, that this does exist? Of course from the comments I heard yesterday, the answer is no. MSHA's proposed rule did not address miners' participation. All things said, the MSHA proposed rule takes rights and protections away from coal miners. Miners have been demanding the right to have increased participation in the respirable dust sampling program for at least a quarter of a century. Given the fact that so many miners have fallen victim to the unhealthy coal dust in mines and the dust sampling program has been corrupt over the years, they deserve the rights to have representatives overseeing the dust program. I agree with the Advisory Committee's recommendations. It calls for an increase in miners' participation without loss of pay in specific recommendations sent to the Secretary of Labor. Those recommendations called for full rights of paid participation in every phase of the respirable dust sampling, verification and training program. That included all compliance sampling, MSHA and operator verification sampling, handling of continuous dust monitoring devices and extraction of data and training of miners. By the way, where in the rule does it require continuous dust monitors? Of course, we talked about that yesterday. I can remember talks about continuous dust monitors for years and years. I am a firm believer that a rule requiring the use of continuous dust monitors in the nation's mines is long overdue. This technology can serve to reduce and eliminate pneumoconiosis in the nation's coal mines. This technology is available and feasible. Have we forgotten about the Mine Act? The Advisory Committee called for the development and use of continuous dust monitors for compliance, surveillance and controlling dust. We need to implement rules to protect the nation's miners from unhealthy coal mine dust. We all must not forget our most precious natural resource, and that is the coal miner himself. We need rules to keep them healthy and alive. We must not continue to chip away at the very document that was written to protect coal miners. In the part of West Virginia, southern West Virginia and northern West Virginia that I cover as an International Rep, I come across employees who are working in the outby areas, and they continue to be exposed to respirable dust. The West Virginia Workers Compensation benefits are continually being paid to these employees, benefits that they deserve due to the fact that they have been exposed to the dust. And, percentages are increasingly getting higher and higher. You mentioned yesterday how you all get your information. And, I think the answer to that was the MSHA folks in the field. I think you need to consider the comments of the people who work in the coal mines today, and please listen to their demands and act on their request immediately. MR. NICHOLS: Thank you. Has Lewis Burke shown up? Okay. Our next presenter will be Dr. Jim Weeks, and he has asked for I believe about forty-five minutes. So how about if we take about a ten minute break before Dr. Weeks comes up? Let's be back at 9:15 ready to go. (OFF RECORD) MR. NICHOLS: Okay, let's get started back. Jim Weeks was on the list twice and he's only going to present once, and has chosen to take the later sign-up time. So, is M.E. Green available, Green? Charles Tipton? Bruce Dotson? Go get them, Joe. I've called M.E. Green, Charles Tipton and Bruce Dotson. Are any of those -- okay. MR. DOTSON: Good Evening. My name is Bruce Dotson, D-O-T-S-O-N. I work in District 17, Local 1511, Phelps, Kentucky. All I can ask is has anybody on the panel had anybody to die from this disease? It's a bad disease, and it's a worse death. Only thing I can say, the sampling part I understand. I think there should be more. It's like insurance, you ladies and gentlemen, just like car insurance. Y'all are our insurance policy. And every man and woman that works in the coal mines, their lives is in y'all's hands. And, I think y'all have done a good job. But, I'm not asking you to go back. I'm begging you to go back. I appreciate your time, and thank you a lot. MR. NICHOLS: Thank you. Is M.E. Green here? MR. GREEN: Good Morning. My name is Mike Green, M-I-K-E, G-R-E-E-N. I work for Local 1713 in West Virginia. I work for U.S. Steel Company. I just have a couple of questions. Yesterday you talked about -- I worked on longwall a long time. We have a real low longwall. And, you talked about being downwind of the shear. We don't have a shear, you know. We have a plow. And, you talked about a small area downwind of the shear. And I'm wondering, you know, that sounds to me like that's just a small area for a small, limited amount of time. And on our longwall, the area downwind of the plow could be the majority of the face, you know, for a whole shift at times. You know, you can still run above that. So what I was worried about was, you know, when we have problems downwind of it, the majority of our people, mostly maintenance people, but could be foreman and other helpers, they would be working in that area for sometimes the biggest part of the shift. It just didn't sound good to me, you know, the idea of just put those helmets on because you know, we've had them probably -- we've had them available to us for ten or twelve years, and they never did go over too good. Only the people on the headgate in the high top, where they could stand up and they weren't very mobile during the shift, they pretty much stayed in one place, they were the only ones that would wear them for any length of time, you know. Most people just gave up on them. They couldn't -- you know, mechanically they were constantly a problem, the batteries, the motors, the little fan motor. They hated them where we work, you know. But, I just wondered about that little area there that you had referred to, Marvin, as a small area. But at times, that's our whole, almost our whole face. MR. NICHOLS: I referred to it as a small area, looking at an entire mine. The MSHA position is that engineering controls have been a long time available for continuous miners and roof bolters, everybody else working in the mine and generally, the longwall. But, there are situations where we believe that this piece, working downwind of the shear operator, that it may or may not be in compliance. Is your longwall in compliance with the two milligram standard? MR. GREEN: They say it is a lot of times. But you know, I don't believe it is. You know, if you're anywhere near that thing when it comes by, you can't see for a long time. I mean, I would doubt it. And it's very low. You know, you have to wear knee pads and crawl constantly. There's nowhere where you can get up. MR. NICHOLS: Well, our idea was that if there are situations, rather than try to keep fooling ourselves that there is compliance in this one area, that we do something to protect the miners. You know, this agency would truly love to not see any requirement for airstream helmets, that engineering controls could take care of the whole problem. But, we don't want to fool ourselves, either. And when I said small area, it is a small area if you look at an entire mine. MR. GREEN: I was thinking in reference to a small area on the face, you know. And, I believe I heard you all say yesterday that the outby, you know, this one sample, I forget, outby, I was amazed that you only had eight violations. Is that correct? MR. NICHOLS: Yes. MR. GREEN: I've been working probably in the last six or seven years outby a lot, and I'm just amazed that the dust in certain places outby, you know, preparation plants and we have a big preparation plant that's really dusty, and even our haulage where we haul supplies in or equipment we haul supplies in, has a lot of sand on it, and I've heard that sand is very high in silica content. And it's an extremely dusty situation there. And, you're always having to refill those sanders, especially this time of year when your track is wet and you know, you just see those huge clouds of dust, you know, when you're on one of those things constantly during the shift. And, I don't think I've ever seen them dust pump those motormen that run those motors. You know, I guess they do. MR. NICHOLS: Did you want to say something? MR. SCHELL: The only thing I can tell you is what our sample results show. And, they really do show lower amounts of non compliance. We do run into dust generating, or, you do run into dust outby. Maybe the reason you're not seeing the over exposures is remember, we're talking about eight hour samples. So, you can get spikes. Just like on the face you can get spikes. But when you average it over the eight hours, they don't exceed the standard. We are concerned about silica outby. And if you've got that concern, that we're not sampling outby, I suggest you contact the district and have them sample that. As I said, their basic way of controlling dust on outby areas is to go to the dust generating sources. I was talking yesterday, rather than sampling occupations, we sample the area where the dust generating source is. So if we're not hitting the proper sources, you can be very helpful to us by bringing that to our attention. And, we will go out there and sample it. And if it's a problem, it should be made a designated area, so we won't miss it. MR. GREEN: Another thing on that outby, that one time a year, to me if you've got dust, you got dust. Even though you have less trouble outby, I don't know, it just seems like if you're going to do it a certain number of times, you know, underground, you ought to do the same outby. Dust is dust. Even though you don't get that many violations, that's just my opinion. The only other thing I have, I heard y'all talk about this maybe personal continuous monitoring. That's the best thing I've heard here in these two days. I mean, I'd never heard that before. I think that'd be a wonderful thing. I'd just like to see that happen. I think that'd eliminate a lot of our problems. That's all I have. Thank you. MR. NICHOLS: Okay, thank you. Is Charles Tipton here? Rick Lester? MR. LESTER: My name's Ricky Lester, R-I-C-K-Y, L- E-S-T-E-R. I'm from District 17, Local 1511. I've been in the coal mines approximately twenty-five years. From what I've heard said, the outby sampling is once a year. I worked outby for approximately nineteen years. Never had a dust pump on me. Outby, there's as much dust as there is -- not inby, but there's a lot outby. A whole lot. You're saying you want to sample six times a year? Why not twenty-six times a year? There's a lot of dust in the coal mines. It's going to be there. We all know it. You say this two point three three is the average on a one day sample, then they're out of compliance on these new regs? On a five day sample, they go to a four, one, two or whatever, then it's averaged out to a two. Why not stay at the two on a one day sample? Why go to a two three three? In the end, you're getting more dust, whether it's one day or five days. You said -- I believe it was stated that we're underground approximately four hundred shifts a year. You're wanting to sample us six times out of four hundred? Those, the percentage there is way low. I can see a whole lot more sampling needed in areas, other than UMWA mines. UMWA mines need sampling. Non union mines need sampling, because we're all coal miners. In past history, non union has a lot worse cases than we do, because they're treated differently, because if an inspector shows up, they'll just shut the place down and say, "we're not working." They have to come back. Well when they come back, they're waiting on them. They're ready. The other three hundred and ninety-four days a year, they're running out of regs, because they've got no say. They've got no Safety Committee to handle their problems. If they speak up, they're gone. So if you sample those guys six days a year, you're doing a total injustice. The union does have Safety Committees to see that everything is in place. Everything is not right in our mines. There is no mines that can run one hundred percent day in and day out properly on dust. There is spikes. At the same time, you're saying six times a year is enough, minimum. It could go to thirty times a year if they stay out of compliance. If you receive a lot of budget cuts, you're not going to have the money to send an inspector to a mines to do it thirty times a year. They'll end up being a minimum of six, is what will happen. That's all I have to say, except your regs needs to be changed in my opinion. Appreciate it. MR. NICHOLS: Okay, thank you. Chris Taylor? MR. TAYLOR: Yes, my name is Chris Taylor, C-H-R- I-S, T-A-Y-L-O-R. I'm a member of District 17, Local 1511. I'm the Health and Safety Committeeman at our mines. One of the biggest problems I have is on this six and one thing. And as an outby, I've been outby probably twelve years. I've been in the mines a total of twenty years. And we experience at times more dust than what you do in the face area, because we're considered outby and they'll have us back down these back lines -- ours is an old mine -- and I've seen it so dusty that once you've hauled a load, load of gob or whatever, you couldn't see your way to get back down to where you was. And, what is going to keep these coal companies from sending us, especially where it's going to be announced, what's going to keep them from sending us in an area where there's more or less no dust for that one shift, because they know that they're not going to be back again until the next year? So the one time a year, it just blows my mind that the outby people is just going to get sampled once a year. And the question that I probably have, that's bothered me throughout these whole hearings is what is your point, what are y'all afraid of finding out with this continuous monitor? If y'all want to know what we breathe, day in and day out, if y'all set up this continuous monitoring, then y'all can find out exactly what we do breathe day in and day out. But otherwise, just like all my brothers have said, they're going to be ready and they're going to have everything just right the day that they're monitoring. Then these other days, they don't care what they put us in. So, that's probably the biggest question I have is why have y'all gone completely away from the ideal of the continuous monitoring. MR. NICHOLS: Well, we're not afraid of continuous monitoring. We'd like to have it. We don't think the technology is there right now that's usable in the mine. Paul, you want to say anything else about that? MR. HEWETT: I'm Paul Hewett with NIOSH. When the Bureau of Mines was, as an agency, eliminated about one third of the Bureau of Mines members came over to NIOSH. Those mainly related to doing work with health and safety. And therefore, we then took over responsibility for the development of the machine mounted continuous respirable dust monitor. And, it has been tested in both laboratory and field, and found to be fairly accurate in the laboratory. But in field tests, it was found just not to be durable in its present development form. And the feeling was -- the opinion was that it would take a great deal more money to rugged-ize that instrument so it would last. The original intention was to put it on a continuous miner or mount it on a shear or somewhere down the longwall. If you mount it on a shear, mount it on a continuous miner, it's subject to quite a bit of rugged abuse, or quite a bit of abuse. And it just, as it's presently developed, it's not rugged enough to survive. And then you have issues relating to measurements where it is located, which is usually not where the miner's at, particularly on a remote mining unit where the operator is standing considerably back from the continuous miner, but that's where the machine mounted unit is located. So what it measured would not be the same thing as what the miner would experience. But we have -- we are continuing to develop other instruments. The technology used in the machine mounted unit is currently being evaluated with a good deal of MSHA funding. NIOSH is working with it, but using MSHA money and part NIOSH money, to develop a personal unit that could be worn by a miner day in and day out, and would give a good, reliable end of shift indicator of what the exposure was during the shift -- at the end of the shift, and at points during the shift. We're also looking at other separate technology that is very, very promising. We have some very bright engineers at the Pittsburgh research lab that are working on a personal respirable dust monitor. Or, they call it a dust dosimeter, that is expected to give a very good end of shift reading. Therefore, you would have to wait ten days or so to get a measurement back from the MSHA lab. So, we're continuing to work on it. But, I would like to point out it's far more difficult to develop a continuous dust monitor than it is a gas monitor. A gas monitor doesn't have any moving parts and has been rugged-ized for a long time and you know, has been utilized. To do the same thing with a machine that has moving parts, has complicated computer equipment on board has proven to be very, very difficult. We figure it was going to take quite a few more dollars in development funds to continue working on that particular instrument. And even in the end, the per unit cost was going to be considerable. So, we decided to invest what monies we had in simpler technologies that would be wearable by individual miners. So, that's where we're at today. I'd like to mention -- I don't know where this will go, but I think it's probably appropriate for NIOSH to examine where we're at with the use of continuous monitoring equipment and perhaps, have a mini symposium or a workshop where interested parties could come and voice their concerns and we could bring everybody up to date as to where we're at with research on this technology. So, that's something that I'm going to take back to NIOSH and see if we can move forward, at least on that front. MR. TAYLOR: The last thing that I have to say to you guys -- and, I appreciate y'all listening to us -- is you know, go back, you know, to the drawing board and really take a look at this six times a year, versus one time a year. That's all I have to tell you. MR. NICHOLS: Thank you. Wyman Owens? MR. OWENS: My name is Wyman Owens, W-Y-M-A-N, O- W-E-N-S. I work in District 20 for Drummond Company, Local 1948, Shoal Creek Operation. I've been in the mining industry for twenty-eight years. I can sit up here and talk about the things that's already been discussed and do the head bashing and the bad mouthing, the dumping on MSHA, on the industry as a whole. But, I'm not going to do that. I'm going to ask you, why are we here today, and look at where the 1969 Health and Safety Act employed you people. Our people were crying for years for help. And, we finally got some help. We got relief in 1969. The maimed, bloody, horrible deaths, burned, charred, diseased people gave you a job: To protect the miners, to help those miners, not take away. If we can't do anything -- and, we've heard the industry, the coal operators' arguments over the years. "It's not feasible, it's not manageable." It's not this, it's not that, excuses. And, you look at the proposal -- and, I'm sure that you people put some time and energy and funding, but you didn't go far enough. You got to look at what the purpose of the 1969 Health and Safety Act resolved at that time, and evolved into an era, to approximately the mid seventies, it had to be revised because it was not implementable, according to the coal operators, or it wasn't feasible or it wasn't cost effective, "it's putting us out of business." Well, you can listen to that. But, you have to remember why you're here. Take that for a thought, because I'm not going to go into all the -- and, you've heard the argumentation. You've heard our concerns. You know where we're at. And to the point of saying that, you know, this is a guaranteed plan that's going to work or the rules, you know yourself if the coal operators were intending to do right, they would've done right before 1969. And, that's where you people came in, to protect the working folks that was going into those environments, extracting that coal, that cried and pleaded for help for years before they got relief. Well, those same folks is crying again in a louder voice, more sophisticated mines, more new technologies, but we're a little bit smarter than what our ancestors were, our forefathers, because in the old days, we wouldn't have had no resources, or we wouldn't have had the privilege to come here and sit before the board and discuss the concerns of our people. Well, we do that now. You didn't go far enough. You didn't follow the recommendations of your own committee. And we're asking you, remember why you're here, to protect, not take away. Let's don't extract nothing from that program. Don't extract nothing from the rules, unless we can better them, not take away. Let's don't take no backward steps. That's all I'll ask you. Thank you. MR. NICHOLS: Okay, thank you. John Nolen? MR. NOLEN: Mr. Chairman, Ladies and Gentlemen of the Board, I thank you for this opportunity to come forward and speak with you. I'm John Nolen, J-O-H-N, N-O-L-E-N. I'm the President of Local 1948, Shoal Creek Mine, District 20. Our mine's located in Adger, Alabama. The bad thing about being this close to the end of the testimony is you run out of anything to say. Everybody's said it all. But, I would like to say something on a few of these things that guys have already talked about. Now, I don't know how to pronounce your name, but Eileen -- MS. KUEMPEL: Kuempel. MR. NOLEN: Ms. Kuempel, you were talking about unannounced visits at the mine. These operators over the years have become very, very talented at adapting to a federal visit. A federal man can come in just in time to get on the elevator, ride down with the men and go to the face with them. And they can make their adjustments as they are on the running shift. There is no such thing as an unannounced visit. As Reginald Stallard was speaking yesterday, he said that the operator would not let them bolt in dust when sampling occurs. It happens every day. Every time a federal man comes, they keep you out of the dusty areas. They won't let that dust pump be in that area where it'll pick up that dust. The next day when that federal man is not there taking dust samples, they're right back in it. And they're in it the next day and the next day and the next day. It doesn't let up. You people have no understanding of what goes on down there. These operators don't care about human lives. And, it makes me angry. And I sit here and I say this, this (indicating) is an injustice to us. It's a farce. You're trying to take our dust sampling away from us. You're trying to increase the maximum level that we are allowed to breathe. This is my life. If this operator can't afford to put in engineering dust controls, let him close his mine. I don't want to work in it. It is his obligation to give me a safe environment to work in. Our current laws are a joke. And, I'm telling you like it is. I'm angry, yes. And, I don't mean to be abrupt. But, this is just the way it is. William Sawyer came up here yesterday. He talked to you people. He told you about when they come down for dust sampling, they clean the water sprays on the miners and shears. Okay? They close down for that. They're not producing like they would be producing on a normal day. On a normal day, if there's enough water running through that machine to keep those motors on that machine cool, they run it. They will not shut it down for anything. And, you're talking about increasing the allowable levels downwind of that shear to three point nine milligrams. What's that doing? It's creating more float dust. It's creating respirable dust. The filters on these breathing apparatus that we use, they don't even filter out the respirable dust in that. All they take is the larger particles. We're still breathing the respirable dust. We heard from Mr. Kelsey, one of the operators, or he was speaking for the operators. By his testimony alone, you should have made a decision this isn't even worth having. I sat back there and listened to it and I was appalled to hear how little respect he had for the lives of miners that work for him. Operators are diabolical. They don't care if you live or die. Just don't die on their property. And, I don't know of a single person that's died from black lung on coal mine property. I want to ask you a question, then I'm going to close. I told you how diabolical these companies are. Think about it in your own mind -- this question doesn't require an answer -- how diabolical are you. You think about these men behind me right here. Are their lives worth anything to you? They are to me. Thank you for listening. MR. NICHOLS: Wait a minute, John. Yeah, they are worth something. They're worth a lot to us. If you work at Shoal Creek Mine, I dare say that there's hardly a day goes by that you don't see an MSHA inspector, probably more than one. Now if you have these shenanigans going on at Shoal Creek Mine, you ought to be talking to these inspectors. MR. NOLEN: These shenanigans go by because he reads the sampling off of the cycle that the operators cut. If they skip a place and don't stay on cycle, they might say the place was a header cut and had to go back, anything. They can work these things out to where they work in their favor. MR. NICHOLS: You can choose not to agree with these rules. But if you're looking for an absolute, that nobody in this world is ever going to cheat again, I don't think anybody's going to give you that assurance. What we're trying to do is put together a program that would give us on a single shift the real working conditions, exposure that these miners are exposed to on a daily basis, and trying to put some accountability into these plans we approve, that they really work. Why don't you (to panel) show them what we're trying to do, what we're doing with averaging right now? I know at Shoal Creek, you've got inspectors there all the time. I don't like hearing -- if these shenanigans go on after you talk to the inspector, that's one thing. But, we've got people there to inspect those mines. And if you know of these things being done, you ought to be talking to them. MR. NOLEN: They will be talked to. That's all I had to say. I'm going to return to my seat. MR. NICHOLS: Okay, thanks. Jim Linville will be next, if he wants to come on up. MR. KOGUT: This is is an example of what I was talking about before under the current system. MR. NICHOLS: Wait. Get the mike. MR. KOGUT: This is just a specific example of what can happen under the current system and the way we're proposing to take care of that kind of problem under the proposed system. On the current system, we're averaging five measurements together. So you could have a situation in which, in this example, you've got one sample at two point four, another sample at three point five. The average comes out to one point nine. So, we don't issue a citation. Under the proposed system, both of these samples would be citable. MR. SCHELL: If I can, let me give you some real figures. From May 7th to September 9th, we were using single samples, citing at the two point three three. Okay? During that period, we took 3,677 samples. We cited 292 citations. From September 9th to January of '99, same period, we took 2,519 samples. We cited 55. We cited two and a half times as many violations using single samples as we did averaging, with the correction factor. MR. NICHOLS: Okay, Jim, go ahead. MR. LINVILLE: Mr. Chairman, Members of the Board, my name is James Linville, J-A-M-E-S, L-I-N-V-I-L-L-E. I'm a member of the United Mine Workers of America, District 17, Local 2286. I have approximately twenty-three years of mining experience. Most of that has been construction and above the ground. I've been a Safety Committee member for about fifteen years. This issue doesn't concern us quite as much as it does the people that work underground. But, we know how the industry works. Whatever's implemented on one group of people, you have to deal with it sooner or later. And, that's why we're here. We feel that the deep miners are getting an unfair shake. So, we want to see what we can do to help them out. As we all know, MSHA inspectors can't write citations on policies. If mine operators don't have a threat of a citation, they will become too lax. The Federal Advisory Committee came to our job to see first hand what a large strip mine looked like. They talked to the miners to see what their concerns were. They did a good job of finding out what the problems were and made good, sound suggestions on how the miners could be better protected. Are we going to ignore the advice of those whom we hold in such high regards? The coal miners depend on you to look out for our health and safety. We have had confidence in MSHA and always worked closely with them on health and safety matters. To allow the dust exposure limits to increase, to lessen the number of inspections required at our coal mines would be a step backwards in time. The coal miners have enough problems with more and more of our mines shutting down each day. The threat of losing our health care and living, livelihood is enough to worry about. We don't need to worry about losing our health and safety, also. In the past when MSHA was faced with devastating budget cuts, it was the UMWA miners who went to Washington to fight a fight that MSHA was told they couldn't be involved in. We ask MSHA not to turn its back on us, now that we need you, your agency the most. We are the miners who do the work each day and try to live with the rules and regulations that are imposed on us by the federal, state and by the coal operators. We wear hard toed shoes, safety glasses, gloves, back support, airstream helmets, welding hoods, hardhats, miner's belt, battery pack, self-rescuer and whatever else the coal company wants to hang on us. It's easy to sit in an air conditioned office in Washington, D.C. or Arlington, Virginia and say, "I think the nation's miners should also wear this or that." It's another matter to be a miner that has to wear more of the so-called safety equipments because a coal operator doesn't want to spend the money to make our work environment a safe place to work. We need engineering controls to keep the dust down, not the so-called safety equipment such as airstream helmets. The coal miner knows his job better than anyone. You can look around the work place and see the coal miner implementing measures to make his work environment a safer place to work. The coal miner needs to have a voice in controlling dust in his work environment. The proposed rules are not in the best interest of the nation's miners, and is in need of major changes. We recommend that MSHA go back to the drawing board and publish new proposals that would use the recommendations of the Federal Advisory Committee. At our mines, we're working hard to improve safety and health. We're working more days and taking less time off, to help the company mine more coal with fewer people. In March of this year, we produced more coal than has ever been produced in the history of Hobeck mining. And they started in the early seventies. Our company is turning a profit because of our efforts. We have less incidents of reportable accidents. And as a result, our company has received a four million dollar check from Workmen's Compensation. The Federal Advisory Committee has made good, common sense recommendations to fix our dust problems. In spite of economic hardships, the coal operators are turning a profit. Let's not let economics stand in the way of better working environment for our miners. God has blessed us with some of the most intelligent people in the world to study and make recommendations on how to lessen respirable dust in the work place. Let us use their good judgement in taking their ideas and making them work for us. There has been very little said about the coal companies having a threat now, but if they're not in compliance, their operations or their particular section will be shut down. If that threat is taken away by MSHA allowing them to use airstream helmets, for an example, then they really don't care if they come in compliance or not because they know production's going to go right on. We all know that in the mining industry, if there's an option put out there, it's going to be utilized. And if it's utilized in a small area on a small group of people, eventually it'll be utilized throughout the industry at other mines and in other work occupations. That's our major concern. We ask that you consider the health of the miners, that you make good, sound judgement whenever you do finalize your proposal, and that it is in the best interest of the working miners. Thank you very much. MR. NICHOLS: Thank you. Jimmy Jarrell? MR. JARRELL: My name is Jimmy Jarrell. That's J- A-M-E-S, J-A-R-R-E-L-L. I'm with the United Mine Workers. I work at Local 9177, District 17, Boone County, West Virginia. I work at Rock Lick Prep Plant. I've got approximately twenty-three years mining experience. I worked underground a little over eleven years. And, I've been at the plant over eleven years. And, I see a lot of dust at our plant. I saw a lot underground. But, I see a lot at our plant. I have some questions about how this is going to affect us. I'm really not for sure about -- we're outside. Will we be sampled one time a year? Is that correct? Does this affect us? MR. SCHELL: Jimmy, there are two rules, as you know, the single sample rule that applies to both underground and surface mines. Then we have the plan verification rule. That only applies to underground mines. So surface mines would be affected by the single sample rule. But, it would not be affected by plan verification. In the rule, we did indicate that the Advisory Committee asked us to take a look at surface mines. So, we have a separate rule making under way to address surface mines. But, it's not part of this plan verification rule. MR. JARRELL: Okay. I want to kind of praise you some. I really appreciate when I see an MSHA inspector at our place. I mean, I've always considered them out there for our health and safety, to protect us. And, I still do. I think we need -- that we're going to need more samples. If you take the sampling program away from the operators, I don't think we will be adequately protected with the program that you're proposing. There's a lot of things I see. You allow for administrative controls. I've dealt with a lot of administrative controls. One of them at our plant, we have different kinds of coals that we clean. One type is very dusty. The next type is not as dusty. Any time there's sampling going to be done, I guarantee we switch coal to the less dusty coal. That was an administrative control. There's nothing wrong with that, is there? MR. NICHOLS: That's not exactly what we had in mind with administrative controls. MR. JARRELL: But, they do. I mean, that's their option. That's something that they can do. But, we have to work in the dustier coal, too. It is not sampled. MR. NICHOLS: But if you know that that's happening, you ought to talk to the inspector and sample both. MR. JARRELL: Is there something that he can do about that? MR. NICHOLS: Yeah, if they're over exposed, if you're getting over exposure. MR. JARRELL: I don't think that he can control them, the time that they clean which coal that they clean. I don't think that's -- MR. NICHOLS: Well, he can sample until he's satisfied that this situation is what would be normal. MR. JARRELL: Well, I've not seen it. Really, I mean the only time that I've seen -- like I say, we work with some very smart operators. And, we have met with them over the years a lot. The only way that I have seen that we have beaten their system was our place was -- we had some investors that came in a couple of years ago and we called an inspector to come in on that same day. Production levels were up where they normally are. They weren't cut the way they are usually when inspectors are there. We were running at a hundred percent production. We got a violation. That was the only way that we could find that we could get a representative sample that was correct. A seventy percent sample, if an inspector comes and he just needs seventy percent of our normal production average, well, we wouldn't be in business very long if we just ran at a seventy percent level. I mean, there would be somebody else working there. The company wouldn't be there and we wouldn't be there. We also, we have alternative work schedules there. I personally work Saturday, Sunday and Monday. I work twelve hours on Saturday, twelve hours on Sunday and ten on Monday. We're not sampled on those weekend and holiday schedules. I don't think you have people who have those same schedules. MR. NICHOLS: No, we've told our people that they need to do weekend work, night work, whatever is representative of what the miners are working. MR. JARRELL: Like I say, I haven't seen it. MR. NICHOLS: What you're raising is more of an enforcement issue with the current rules, rather than what's in the new rules. If you've got situations that you want looked at -- where are you located? MR. JARRELL: Rock Lick Prep Plant in Boone County. But, it seems to me like we're going to get less testing with the new rules than we got with the old ones. MR. NICHOLS: No, not on the surface. Our policy right now is to sample once a year on the surface, unless there's a problem and we're called up. Is that -- MR. NIEWIADOMSKI: Actually twice on the surface. MR. NICHOLS: Twice on the surface. MR. JARRELL: Well like I say, I've not -- on my weekend schedule, I've not seen that happen. And, we've had this a couple years now, we've had this schedule. MR. NICHOLS: Well, we have three District Managers in Kentucky. Do you know which one has responsibility for your operation? MR. JARRELL: I do not. I'm not here to get any of your -- put any of your people on the carpet, because like I say, I'm glad to see you come whenever you do come, you know. But I think now that there are underground miners in my local that I represent, and I think that if you'll take a lesson from the gentleman that was here from the Kentucky Coal Association, that's the kind of administrative control that will be -- that the company that I work for will do. The airstream helmets will be their way out on this because in my dealings with them, if it's not in black and white and specific, we don't have it. It's not there. Might as well -- you know, the ink's wasted on it. MR. NICHOLS: Well if the company wants to use administrative controls as a means of compliance, they've got to be written up, demonstrated, and posted. It's not just to say, "well, we're going to use administrative controls." They've got to be verifiable, too, that they work, and that the company is going to use them day after day after day. MR. JARRELL: Obviously the use of the airstream helmet, to me is taking the responsibility off of the operator and putting the burden on the working man. It's putting it on him. And, it's a big burden. I mean, I've just been a committeeman for about two years now. I'm an infant compared to some of these guys here. I mean, I look back here, I see probably two thousand years of mining experience, is about what I've figured up. And, I haven't heard one positive thing said about the airstream helmets. And yet, you people want them in your rules. MR. NICHOLS: Yeah, but you've got to understand where it fits. It doesn't fit anywhere, except working downwind of the shear operator. It only fits there if MSHA determines that the company has exhausted all engineering controls. MR. JARRELL: It also doesn't fit the coal miner. And, that's who we're here to protect. MR. NICHOLS: Well, I mean that's what we're trying to do, too. What's the option? Let's say for the sake of discussion there is place that the problem can not be engineered out. Is it better to work with no protection? Or, is it better to use personal protective equipment? MR. JARRELL: Well, it's been my experience that that place doesn't exist. MR. NICHOLS: Okay, then when -- MR. JARRELL: I've dealt directly with the company that I work for where we had the problem with the dust and they could not come up with a solution. And they asked us to meet with them. We had a committee that met and we went over the problems that we had, and we worked it out. And, we found the problems and we corrected them, just to the point where we got under compliance. And, that's as far as they wanted to go. MR. NICHOLS: If that problem doesn't exist, then you won't see an airstream helmet in use. But what we don't want to do is fool ourselves. It's just what we were showing here about sampling, that when you get a couple of people over and three under, they're called in compliance. We don't want to go through this creative sampling to say we've got everybody in compliance downwind, if they truly aren't. But if engineering controls can handle it, you won't see any approval of airstream helmets. MR. JARRELL: Well like I say, I've dealt just in my two years, I've had a lot of dealings and if there's any way that they can get around a rule, they're around it. It's their policy, they'll be around it. MR. NICHOLS: You don't think there's any good companies out there? MR. JARRELL: Well you know, the company I work for is a good company, I mean, compared to some of the others, they are a good company. I really don't have many animosities toward them. I have a few, you know, because of some of the dealings I've had. I've just been a committeeman now for about two years. And one of the reasons I got on this was my Dad was a coal miner and he died of black lung, been about two years ago. This same company denied that he was ever working in any dust. They fought him every which way they could, for him to get his black lung benefits. They contended that he had no black lung. But, his autopsy proved different. And just from watching him fight for air to breathe was very difficult. I don't want my son to have to go through that. MR. NICHOLS: We don't, either. MR. JARRELL: And, you are the people that can change that. You have the control to put rules in here that are enforceable that can change that. And, I challenge you to do that. And, I hope that you will. MR. NICHOLS: Okay. MR. JARRELL: If you have any questions of me -- ? MR. NICHOLS: I think we've covered it, thank you. MR. JARRELL: Thank you for your time. MR. NICHOLS: Joe Urban? MR. URBAN: Is it finally my turn, Marvin? MR. NICHOLS: It's your turn, Joe. Come on up. MR. URBAN: For the record, my name is Joe Urban, J-O-E, U-R-B, as in boy, A-N, the same as Urban Cowboy, but don't get it confused, because John Travolta got all the fame and glory. I didn't. Marvin, for the record, I have a copy of my presentation I'd like to hand in. MR. NICHOLS: Okay. MR. URBAN: In light of the fact, Marvin, that I'm sort of bringing up the rear of our list of candidates that wanted to speak on the issue, rather than be repetitious, as a lot of material has been, I'm not going to go through every page of my presentation, but rather pick out some aspects I'd like to discuss with you and Ron and with the Committee. And let me begin by saying that I am currently the Deputy Director of Organizing in the midwestern United States for the International Union of the United Mine Workers of America. In addition to that, my duties as a Deputy Director of Region Three, also I have the responsibility of providing representation for our membership concerning safety in the State of Illinois, both surface and underground coal mines, as well. In addition to that, I also represent non coal related facilities, as well. I have approximately twenty-eight years of coal mining experience, thirteen years of actual underground experience, and fifteen years of experience conducting inspections at surface and underground coal mines throughout the United States for compliance with federal coal regulations, in addition to representing our membership in safety related matters. I appreciate the opportunity to come here today to discuss the proposals for the dust rule. Allow me to start by saying that the job that all of you have taken on with this assignment is one in which the United Mine Workers of America has taken on right after the inception of the Coal Mine Health and Safety Act of 1969, later amended in 1977. Almost immediately -- and, I believe Joe Main has addressed that in his presentation -- almost immediately the UMWA began informing MSHA who at that time was called MESA, about problems that were being echoed all the way to Washington, D.C. from the remotest mining communities concerning the self-policing requirement applied to what was then the newly respirable dust rule. For more than a quarter of a century, the men and women who have mined and continue to mine the coal that fuels this great nation have cried out for help, only to have their pleas fall on deaf ears. In the preamble to the Coal Mine Safety and Health Act, it states that the miners are the most precious resource. And, don't misunderstand me. I realize that the United States is somewhat of a capitalistic society. And, I'm not saying there's anything wrong with that. But with that, it appears that those individuals who have been elected by the men and women of this great country, to assure the common good of man is protected, are in fact at times speaking out of both sides of their mouth. The UMWA fully realizes that in a lot of states workers, according to the National Labor Relations Act, are employees of will, which means the Employer has the legal right to hire and fire as they so please. But employment at will does not have to mean life at will, which is exactly what is occurring with the structure of the proposed rules. A man or a woman should not have to jeopardize their health or their life in order to make a profit for a company. You don't have to take my word for it. The latest statistics show that in this country, every six hours a person dies from black lung, or pneumoconiosis, fifteen hundred workers each year. We write words to the effect that workers are our most precious resource. And then we turn around whenever we promulgate new laws, it appears that we have a deaf ear to their cries. It still amazes me that this great country of ours can demand clean air to breathe on the surface, but forgets those individuals who just happen to be working underground in the coal mines. The coal miners of this nation are tired of being classed as second rate citizens. If we can demand clean air for the millions walking on top of the earth, then we sure as hell can demand it for those going beneath the earth to mine the coal in order to energize this nation, clean air for them, also. And in case none of you realize it, the United Mine Workers of America has always been in favor of clean air. But, we also want it underground and around equipment on the surface that generates dust. Don't misunderstand me or my presentation. Some of the proposed rule has provided additional improvements. And, we thank you for that. But, those improvements are minute in our opinion when compared with the majority of the proposed rule, which we feel is flawed terribly. Gentlemen, our government has spent a great deal of time, man hours and taxpayer's money in an attempt to provide this agency and this committee with detailed information on the critical issues surrounding the respirable dust problems. The purpose was to provide guidance and direction to the creation of rules to eliminate the problems of the past. And I feel that the past two days, Marvin, that we have had a lot of testimony that in the eyes of those that have testified, that they feel that there are numerous flaws. And not only that, but the rule itself is somewhat misguided and very confusing in its structure. And in 1992, the Department of Labor, in fact, MSHA formulated the task group to look into the problem, and I won't go into all that. In 1995, the Advisory Committee was formulated, again by the Department of Labor. We truly appreciate the hard work and the dedication of those two assignments and those two groups of committees that worked. In addition to that, NIOSH in 1995 issued a criteria document. We appreciate that. And on November 14, 1996, the Advisory Committee forwarded its official report to the Secretary. It is our belief that for whatever reason, that MSHA not only veered off the path, somebody stole their compass when it comes to adding the protections miners have struggled so long and hard for, and how its rule could be so contrary to the findings and the recommendations of the Advisory Committee. To name a few, of course, the permissible exposure limits, the PELs, we feel that MSHA should have developed separate PELs for silica and coal mine dust. We feel that the standard, the two milligram standard should have been lower. And Ron, if I may, I want to pose this question to you and your mathematician: With the example that you gave with the averaging -- and, I understand where you came from with your averaging; I also understand the figures that you gave in relation to the citations that was issued as a result of the single shift sample -- but those that you had up there that was also a two milligram, could you have not lowered the standard to one point eight five, and still had your confidence, your level of confidence to issue that citation, and been upheld in court at a two milligram limit? MR. SCHELL: Joe, you want me to respond? MR. URBAN: Yes, please. MR. SCHELL: Well the answer is yes, we could have, Joe. As Joe mentioned, Joe Main mentioned the other day, we did have a separate rule making that addressed lowering the standard. The scope of this rule making didn't include that. So that wasn't included. But, that adjustment factor would have been applied, no matter what the standard would have been. So the answer to your question is yes. But in this particular rule making, we weren't addressing the standard. We were dealing with the standard as it is. MR. URBAN: But, you answered my question. I appreciate it, Ron. We've heard a lot of testimony over the take over of the compliance sampling. In fact, I think the Advisory Committee even recommended that the agency do that. And, I think they even went to the extent to provide at least one example of in order for you to provide more sampling, they gave you an avenue whereby if you needed additional monies, that there was a remedy avenue there that you could look at to resolve that solution. But apparently none of that was considered in the proposal. MR. NICHOLS: No, MSHA has picked up about ninety additional coal mine inspectors in the last three years to do the increased sampling, the bimonthly sampling. MR. URBAN: I understand that. But again what I'm referring to, Marvin, is the fact that approximately -- under the current regulation, we have about thirty plus samples from the operators, plus six or seven a year from the agency, which makes it somewhere in the ballpark of thirty-seven samples. Minimum under the proposal we're looking at six to seven per year. And I guess I'd like to address this to Mr. Reynolds since he is legal counsel. I appreciate your position as to what judges look at in reference to basing their findings for making their decisions. I don't necessarily agree with that total concept, the reason being I have just in the last week -- I'm not an attorney, and don't let me leave any false impressions that I am. I'm a coal miner. But, I also realize the strength and the power in statutory regulation. And the issue of which was awarded in the union's favor dealt with a request that had been made on a state regulation, whereby we had a mandated statutory regulation of which the committee did not pay attention to. And the judge clearly ruled that irregardless of the intention of the committee, however good they may have been, the statutory language is what he had to use in order to make his determination. Now that doesn't mean that as an attorney you can't take the preamble and use it as supportive argument to that judge, which I'm sure that would come in as a plus for you. But, I personally feel that -- again, I'm referring to the miners' participation, Mr. Reynolds -- I realize the committee has said that you all will look at that issue. You've stated that it is in the preamble under policy. Why not back that up with statutory requirement by having it in the rule? MR. REYNOLDS: Again, let me go back to what it says. When we refer to the term preamble, we mean a proposed rule that would include everything in this document, the narrative portion in the beginning where it explains with the question and answer portion, with actually the reg text, and the original thinking behind putting this in here, and the reason we have -- this is what it says in the preamble. Maybe I should just go ahead and read it. In accordance with Section 103(f) of the Mine Act, you, meaning the mine operator, must provide miners and their representatives the same walk around rights during plan verification sampling as they are provided during any other physical inspection made pursuant to the provisions of Section 103, and by an authorized representative of MSHA, and then we have the further explanation that would be looked at by the courts, that MSHA believes that under the guidance of the interpretive bulletin which has been around since 1978, those regs run where an inspection is met its purpose set forth in Section 103, and the inspector is physically present at the mine to observe and monitor health and safety conditions as part of his safety and health enforcement activity. Verification sampling is necessary to obtain information related to approval of the mine's ventilation plan, and whether coal mine dust will be adequately controlled to protect miners. Consequently, miners and their representatives would have the right to accompany the inspector with no loss of pay during which the representative exercises this right. However, this right is limited by Section 103(f) to only one such representative of miners. Again the thinking and the reason this was treated this way was because MSHA had the resources to go ahead and have MSHA do all the verification sampling. And because of the fact that we were structuring the verification sampling the way that MSHA would be sending somebody out to do the verification sampling and they'd be physically present, that it's clear that under the statute, which of course, just as you've said, is the most important thing in any legal proceeding, under the statute it was very clear that the 103(f) rights or the walk around rights with pay did apply. And as we've said, we said yesterday, what Marvin said is because of the fact that this has obviously caused confusion, this would be something that we would clarify either in the preamble of a re-proposal or in the preamble of the final rule, whatever the agency decides to do with this rule. But again I want to say that the statement in here is very, very clear that under the rules as currently drafted, we have a very clear statement in there to the operators that you have to pay, you know, that walk around with pay does apply during verification sampling, and any other type of sampling where you have MSHA on the premises doing that type of inspection. MR. URBAN: And, I appreciate your response. Partly, I guess it's a little bit because I'm from the old school, I just would rather see that judge having something to totally lay his hand on and say, "this is what the regulation says and this is what you have to go by." Okay? That reminds me, Marvin, yesterday you had a couple of times where you sort of leaned on legal counsel. MR. NICHOLS: Actually, he leaned on me. MR. URBAN: I kind of envision this picture of an attorney standing in front of St. Peter and he's got his hands up in the air and St. Peter's standing there and he's got a long scroll and St. Peter says, "can I help you," and he said I'd like to plead my case. He said, "St. Peter, there's got to be a mistake. I shouldn't be here. I'm forty years old. I've got my life ahead of me. I've got all this knowledge that I've gained and I ought to be able to use it to help people." St. Peter really wasn't paying a whole lot of attention. Pretty soon he asked St. Peter, said, "did you hear what I said to you?" St. Peter kept looking at that long scroll and he said, "yeah, I heard you," but he said, "according to the hours that you've billed, you ought to be a hundred and five." That's just a little inside joke for attorneys. In the proposed rule, subpart (b), dust standard 70.100(b), it states that each operator shall continuously maintain the average concentration of respirable dust within two hundred feet inby the working faces of each section and the intake airways at or below one milligram of respirable dust per cubic meter of air as measured with an approved sampling device and in terms of an equivalent concentration determined in accordance with 70.2(c). Two questions, this has got me confused. Is there a different regulation for the two hundred feet inby until you get to the last open cross cut, of which we consider and define as the working face? Or, are there no limits on the amount of respirable dust in this area? Would somebody respond to that one? MR. SCHELL: I'm not sure I understand the question. MR. NIEWIADOMSKI: There's no change from the existing rule. MR. SCHELL: Let George. MR. URBAN: Help me out, George. MR. NIEWIADOMSKI: Joe, there was no change from the current regs. That's two hundred feet inby, the intake airway is one milligram. The outby is going to be two milligrams. But thing I wanted to make sure is Part 70.100, 100(a) is what is in the existing regulation and has been in place since 1980. MR. URBAN: But, that two hundred feet has got me throwed, the way that it's worded there. MR. NIEWIADOMSKI: There's no change from the way it's been. I mean, the current regulation, actually we've adopted, we've carried the current regulation in Part 70, and let me just -- it's identical. There's no change. MR. URBAN: Okay, I'll come back to that one later. Although MSHA has stated -- MR. NICHOLS: Joe, let Ron say something about these six samples annually. We want to clarify that a little bit. MR. SCHELL: Yeah, just a clarification, Joe. I've heard a reference to a minimum of six samples per year proposed, and that's not correct. So we're going to clarify it for the record. We're talking about taking five samples six times a year, or thirty samples. We were never proposing to do just six samples a year. Our proposal was that every time we went out and sampled, we would sample at least five samples, plus any sectional DAs and DAs near the section. I just wanted to clarify that for the record. MR. URBAN: While you've got the microphone, let me ask you another question. Of the five samples that you take, the DO, okay? MR. SCHELL: Well, it'd be the DO and any roof bolter DA, plus other occupations on the section. MR. URBAN: I guess my question is if you find one or two of those out of compliance, will that be one citation? Or, will there be a citation for each of those that's out of compliance? MR. SCHELL: It would depend. If they both were exposed to the same dust source, it would be one citation, Joe. If they were exposed to separate dust sources, for example, you were splitting your ventilation, it would be two citations. We want to look to where the dust source is and make certain that the dust source is corrected, so the miners would be protected. MR. URBAN: No, you still missed my question, Ron. Let's take one MMU. You have your continuous miner being sampled. You also have roof bolters working inby and they are being sampled. Both those come out of compliance. Is that two citations? Or, are you just going to use your one citation per MMU? MR. SCHELL: That would be one citation, unless the roof bolter was a DA. Then it would be two citations. MR. URBAN: Okay, thank you. I think we heard yesterday from one of our surface members that is a construction worker. And again, I'm not casting any stones, Ron. I've seen through the years that I've been involved, we've had a lot of proposed changes made to certain regulations, or at least attempts made. And for whatever reasons, some of those never did become final. The plea that the construction worker had yesterday is a serious one and a true one. They do need severe help. I know that in the preamble that, Marvin, you've stated that you're going to work on the surface application for the respirable dust rule. I truly hope that does happen. But I also am under somewhat of an emotional feeling that that's sort of like, "the check's in the mail." And, I support that with the fact that we're still waiting for 48(c) that we never have gotten since the inception of the Coal Mine Health and Safety Act, which as you know, is the construction, slope and shaft, and that's been thirty plus years. So again, I hope that you truly do come out with the surface application for the respirable dust rule. There was a lot of talk in the preamble referencing studies that had been done, not only in this country, but in other countries as far as those individuals with CWP or silicosis. And, the Advisory Committee clearly indicated that they felt that there was a dire necessity to have medical testing and medical surveillance for the miners. But for some reason, I don't see any of that in the proposed rule. Could someone explain to me why there's not any in there? And Marvin, let me say that the reason I ask that is because of the problems of the past that we're trying to get rid of. How do we build up the confidence in the miners, if we don't have the data to be able to show that the situation is what it is, if we're not going to do any medical testing or any medical surveillance? MR. SCHELL: Joe, after the Advisory Committee finished its work, the first regulation we started working on was to expand the x-ray surveillance program to the surface and to contractors, to address just exactly the issue that you've raised. When we got into that rule making, we came to the conclusion that what we were doing was taking a broken underground program and extending that to the surface. So, we met with quite frankly a lot of mine workers at the academy and we asked them, "why aren't people participating in the x-ray surveillance program." As you know, we're at about a twenty-five percent participation rate in the NIOSH program. And, the feedback that we got from the miners was that quite frankly with the operator involvement in the program, miners were afraid to participate because they felt that if they had evidence of the disease, it would be used against them in future employment, or the operator would discourage them from participating, because they had to pay for the x-rays. So that's when we initiated this national miner's choice x-ray program. And, we're starting into our -- going into our second quarter on that now. As you know, that expands the right for surface miners, for contractors, slope and shaft, truck drivers, underground miners to go to any facility that they want and have an x-ray taken. That's of no charge to them. MSHA picks up that cost. That goes to NIOSH and they read it, and will collect data. So what we're doing is we're trying to develop a better program for medical surveillance that addresses the objective of the Advisory Committee and we've asked for funding from the Congress to continue that program. And I would hope that within five years, every miner would have been offered that x-ray under an improved program. Now we're looking at participation rates around fifty to sixty percent nationwide, which is significantly better than we ever got under that NIOSH program. MR. URBAN: And, I appreciate that. And, I do know that under the chest x-ray program that Marvin had touched on yesterday, that that was a priority of Davitt's. MR. NICHOLS: You've got to give Davitt a lot of credit for that. We had no money budgeted for that. That program, if you get maximum participation, could cost two million dollars a year. It was not a line in the budget. There were some questions about it. He stayed the course. We found the money in other programs. And, it's a good program. He deserves a lot of credit for that. MR. URBAN: I want to share some information with you, Marvin, that you may not be aware of. And, I appreciate the fact that Joe Main had talked with you and the fact that in the midwest and Illinois, we had several mines that were slated to shut down under this program, we wanted to try to get as much maximum participation as we could for those miners because once they leave the coal fields, it's hard to even track them down. But the problems that we ran into -- and Marvin, I have participated adamantly in the chest x-ray program that Davitt had come out with -- the problem we run into was it appeared to me we were running into problems because of the scheduling, part of that being the fact that MSHA had contracted out the actual service of doing the chest x-ray. To give you an example, at the Peabody Coal Company at Marissa Mine in Illinois, we had somewhere in the avenue of a hundred and eighty to two hundred miners that took the x-ray, participated. Ninety of those were bad x- rays because of one of two errors, either faulty equipment or people that were doing things that they weren't quite trained good enough to do. And it just appeared to me -- and, I spoke with Mr. Oaks, spoke with Mr. Wickman -- it just appeared to me that it was sort of sidestepped in the fact that, "well, we've contracted this out to a contractor, we have to go by their schedules, there's not a whole lot we can do about that." And we got the problem corrected, Marvin. Okay? We got the machine back in there and we got the people another x-ray. But again, talking about the confidence in this program, I mean, that put a severe blow to it. MR. NICHOLS: Well yeah, I mean, but this was a big undertaking that we had started, and we had contracted out with a clinic. But as we've seen some of these problems come up and the participation rate not being what we wanted, we started using mobile vans. So we adjusted, especially in the east, by using the mobile vans. And, the participation rate went on up. MR. URBAN: I share that information with you, Marvin, because I think our traction starts slipping in the mud in the midwest, when it comes to the quality of the service that was being conducted. And, don't get me wrong. We done the chest x-ray program at Consol Mines and in fact, I think we had something in the neighborhood of eighty-three percent that participated. And, I do realize that that was no easy chore, trying to get a facility, area where we could set the machine up. And, the program is a good program. But, I just think that NIOSH and MSHA both should try to work a little more closer with the representatives of the miners to try and help get this scheduling done. In fact, we had one session that came up in Illinois, and none of our people that are representatives was going to be in the area, and yet, it had already been scheduled and we had no way to get the word out to the miners. That's not going to do the program any good, Marvin. Okay? So again, I would ask that on the chest x-ray program that we try to have a little more better communication, especially in the scheduling aspect of it. I am happy to say that of numerous recommendations from the Advisory Committee -- and, there were several on education and training -- the Department at least, MSHA has filled the position of Director of Education and Training. And, we appreciate that. And, we also appreciate the fact that it's Jeff Duncan, one of our people that used to work with us. He has extensive knowledge, a very capable individual. You had talked, Marvin -- and, I'm going