UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION In the Matter of: ) ) 30 CRF PART 72 ) ) DETERMINATION OF CONCENTRATION OF ) RESPIRABLE COAL MINE DUST; ) PROPOSED RULE ) ) 30 CFR PARTS 70, 75 AND 90 ) ) VERIFICATION OF UNDERGROUND COAL MINE ) OPERATORS' DUST CONTROL PLANS AND ) COMPLIANCE SAMPLING FOR RESPIRABLE ) DUST; PROPOSED RULE ) Alpine East Ballroom Hilton Salt Lake City Center 255 South West Temple Salt Lake City, Utah Wednesday, August 16, 2000 The public hearing convened, pursuant to the notice at 8:32 a.m. BEFORE: MARVIN NICHOLS Administrator, Coal Mine Safety and Health RON SCHELL, Chief, Coal Health Division LARRY REYNOLDS, Office of the Solicitor LARRY GRAYSON, NIOSH, Associate Director Mining Research PAUL HEWETT, NIOSH, Industrial Hygienist APPEARANCES: (continued) CAROL JONES, MSHA, Director, Office of Standards, Regulations and Variances GEORGE NIEWIADOMSKI, Mine Safety and Health Specialist, Coal Mine Safety and Health THOMAS TOMB, Chief, Dust Division, Pittsburgh Safety and Health Technology Center JON KOGUT, Mathematical Statistician, Office of Program Policy Evaluation REBECCA ROPER, Senior Health Scientist, Office of Standards, Regulations and Variances RON FORD, Economist, Office of Standards, Regulations and Variances RODNEY BROWN, MSHA, Office of Information and Public Affairs PAM KING, MSHA, Office of Standards, Regulations and Variances C O N T E N T S STATEMENTS: PAGE: OPENING STATEMENT OF MARVIN NICHOLS, ADMINISTRATOR, COAL MINE SAFETY AND HEALTH 5 JOE MAIN, UNITED MINE WORKERS OF AMERICA, ADMINISTRATOR OF HEALTH AND SAFETY 25 BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH, NATIONAL MINING ASSOCIATION 67 RANDY TATTON, ENERGY WEST MINING COMPANY 90 JIM STEVENSON, INTERNATIONAL UNDERGROUND SAFETY REPRESENTATIVE, UNITED MINE WORKERS OF AMERICA 100 CAMRON MONTGOMERY, UNITED MINE WORKERS OF AMERICA 141 TOM KLAUSING, UNITED MINE WORKERS OF AMERICA, LOCAL 2161 161 DWIGHT CAGLE, UNITED MINE WORKERS OF AMERICA, LOCAL 2397 180 TAIN CURTIS, UNITED MINE WORKERS OF AMERICA, LOCAL 1769 182 JIM WEEKS, CERTIFIED INDUSTRIAL HYGIENIST, CONSULTANT TO UNITED MINE WORKERS OF AMERICA 186 DARYL DEWBERRY, UNITED MINE WORKERS OF AMERICA, INTERNATIONAL EXECUTIVE BOARD MEMBER, DISTRICT 20 239 DAN SPINNIE, UNITED MINE WORKERS OF AMERICA, LOCAL 2161 268 BRAD ALLEN, UNITED MINE WORKERS OF AMERICA, LOCAL 1984 277 BRAD PEAY, UNITED MINE WORKERS OF AMERICA 282 BOB LaBLEUW, UNITED MINE WORKERS OF AMERICA, LOCAL 1984 287 LARRY PASQULE, UNITED MINE WORKERS OF AMERICA, DISTRICT 20, ALABAMA 288 STATEMENTS: PAGE: RANDY KLAUSING, UNITED MINE WORKERS OF AMERICA 292 SCOTT BOYLEN, UNITED MINE WORKERS OF AMERICA, SKYLINE MINE 311 JOHN F. DE BUYS, JR., BURR & FORMAN LLP, BIRMINGHAM, ALABAMA 323 P R O C E E D I N G S MR. NICHOLS: Good morning. My name is Marvin Nichols and I am MSHA Administrator for Coal Mine Safety and Health, and I will be the moderator for today's public hearings. On behalf of Davit McAteer, Assistant Secretary for MSHA, and Dr. Linda Rosenstock, the Director of NIOSH, we want to welcome all of you here. This morning we will begin with the public hearings on two proposals which were published on July the 7th in the Federal Register, the Joint Single Sample proposal and the Plan Verification proposal. Your comments will be included in the record on both proposals. Let me introduce our panel. To my left we have Ron Schell who is the Chief of the Health Division for Coal Mine Safety and Health, and to my right Larry Reynolds from the Office of the Solicitor. On the panel behind me we have Larry Grayson, Dr. Larry Grayson, Associate Director Mining Research with NIOSH; Carol Jones, the Director of MSHA's Office of Standards, Regulations and Variances; George Niewiadomski, Mine Safety and Health Specialist, Coal Mine Safety and Health; Thomas Tomb, Chief, Dust Division, Pittsburgh Safety and Health Technology Center; Jon Kogut, Mathematical Statistician, Office of Program Policy Evaluation; Rebecca Roper, Senior Health Scientist and Ron Ford, Economist, both from the Office of Standards, Regulations and Variances. Because the single sample rule is a joint MSHA/NIOSH proposal Paul Hewett, Industrial Hygienist, is here from NIOSH. And Rodney Brown from MSHA's Office of Information and Public Affairs is also present at the hearing. Rodney's standing back at the door there. Rodney will be available with press kits for the media and will be available to answer any press inquiries. And we have Pam King from MSHA's Office of Standards, Regulations and Variances. Pam greeted you when you came in. If you've not yet signed in, please see Pam and do so. Or if you wish to speak, sign on the speakers' list. Let me first mention about how the hearing will be conducted. The formal rules of evidence do not apply at these hearings and they are conducted in an informal manner. those of you who have notified MSHA in advance will be allowed to make your presentations first. Following these presentations others who request an opportunity to speak will be allowed to do so. I would ask that all questions regarding these rules be made on the public record and that you refrain from asking the panel members questions when we are not in session. A verbatim transcript of this hearing is being taken and it will be made part of the official record. Please submit any overheads, slides, tapes and copies of your presentations to me so that these items may be made a part of the record. The hearing transcript, along with all of the comments that MSHA has received to date on the proposed rule will be available for review. If you wish a personal copy of the hearing transcript, you should make your own arrangements with the court reporter that's sitting to my right. We will also accept additional written comments and other appropriate data on the proposed rule from any interested parties, including those who have not presented oral statements today. These written comments may be submitted to me during the course of this hearing or sent to the address listed in the hearing notices. All written comments and data submitted to MSHA will be included in the official record. If you wish to present any written statements or information for the record today, please identify them. When you give them to me, I will identify them by title as being submitted for the record. And, once again, Pam is sitting at the table by the door and has an attendance sheet which you may want to sign to register your presence. To allow for the submission of post-hearing comments and data, the record will remain open until September 8, 2000. As you may know, we held hearings last week in Morgantown, West Virginia, and Prestonsburg, Kentucky. Before we begin this hearing let me give some background on the proposals we are addressing here this morning. First, the full shift sample joint proposal. In this proposal the Secretary of Labor and Secretary of Health and Human Services announce their proposed finding in accordance with the Federal Mine Safety and Health Act of 1977 that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be accurately measured over a single shift. In this proposal, the Secretaries are proposing to rescind a 1972 finding on the accuracy of such single-shift sampling. The joint proposal also addressed the final decision and order in National Mining Association v. Secretary of Labor issued by the United States Court of Appeals for the 11th Circuit on September 4, 1998. That case vacated a 1998 joint finding and MSHA's proposed policy concerning the use of single, full-shift respirable dust measurements to determine noncompliance with the applicable respirable dust standard was exceeded. As most of you know, the single sample issue has been through a long public process which is outlined in the preamble to the proposal. The process ended with a September 4, 1998 ruling by the United States Court of Appeals for the 11th Circuit. The Court vacated the 1998 Joint Finding, concluding that "the record contains no finding of economic feasibility," and that MSHA "failed to comply with Section 811(a)(6) of the Mine Act." Therefore, in response to the Court's ruling, the Secretaries are proposing to add a new mandatory health standard to 30 CRF Part 72. The 1972 joint notice of finding would be rescinded and a new finding would be made that a single, full-shift measurement will accurately represent atmospheric conditions to which a miner is exposed during such shift. this finding is the basis for the new proposed mandatory health standard. MSHA believes that singe sample measurements are more protective of miners' health than the current practice of averaging multiple samples. The process of averaging dilutes a high measurement made at one location with lower measurements made elsewhere. MSHA recognizes that single full shift samples have been used for many years by OSHA and at metal and non-metal mines in this country. The coal mining community had the opportunity to experience the use of single full shift measurement for a two year period in 1992 and 1993 and from May 1998 until September 1998 when the Court of appeals vacated the agencies' finding. We are interested in your comments concerning the application of full shift samples at your mines during that time period. Additionally, because the proposed rule would be implemented as a mandatory health standard, all elements of Section 101(a)(6)(A) of the Mine Act have been addressed in this proposal. These include the portions of the proposal which address health effects, develop a quantitative risk assessment, and the significance of risk. We are seeking your comments on this proposal as well as on the plan verification proposal. The plan verification proposal is based in significant part on recommendations contained in the 1996 report of the Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis. that report was based on the studies and discussions of representatives from labor, industry, and neutral experts. they believe that if their recommended changes were made, Black Lung disease could be eliminated and confidence would be restored to the federal program to control coal mine respirable dust levels. The plan verification proposal adopts three recommendations, three key recommendations of the Advisory Committee: 1) MSHA should take full responsibility for all respirable dust sampling for compliance purposes; 2) MSHA should verify ventilation plans at typical production levels; and 3) MSHA should require operators to record production levels and dust control parameters to monitor the dust levels. Under the plan verification proposal all the existing requirements in our regulations at 30 CRF Parts 70 and 90 for underground coal mine operators to conduct respirable dust sampling would be revoked. MSHA would assume responsibility for all sampling to determine if miners are overexposed to respirable coal mine dust. This includes bimonthly sampling, abatement sampling, sampling to establish a reduce standard in mines where quartz is present, and Part 90 sampling for miners who have evidence of the development of pneumoconiosis. Since MSHA would conduct all sampling, the miners' representative would have the right to observe sampling with no loss of pay. Before approving ventilation plans, MSHA would conduct verification sampling under typical production levels, with only the controls listed in the plan in effect, and for the full shift. This would assure that miners are not overexposed to respirable dust. The results of these verification samples must be below the "critical values" listed in Section 70.209 of the proposal before MSHA would approve a plan. The proposal defines "full shift" differently for purposes of plan verification and abatement sampling and for bimonthly compliance determination. The proposal would revise the existing definition of "concentration" so that it is an 8-hour equivalent measure, even if the work shift is longer than 8 hours. In addition, under the proposal only MSHA samples would be used to establish a reduced standard in underground coal mines where quartz is present. this would change the existing procedure which allows operators to submit samples which are averaged with MSHA samples. Finally, MSHA would allow longwall mine operators to use, on a limited basis, either powered air-purifying respirators or administrative controls when all feasible engineering controls cannot maintain respirable dust levels at or below the applicable standards. Coal mine operators must first request that the Administrator for Coal Mine Safety and Health determined that all feasible engineering controls are in place. If so, MSHA would grant the operator interim ventilation plan approval. However, the operator must implement any new feasible engineering controls which may become available. Now, in response to the hearings last week in Morgantown and Prestonsburg we want to spend a few minutes outlining in some greater detail the major provisions of these two rules. And Ron Schell will do that. MR. SCHELL: Good morning. Just give us a second to get set up here, would you please. (Pause.) MR. NICHOLS: Do we need to move? MR. SCHELL: No. (Slide.) MR. SCHELL: Can everybody see that? As Marvin said, I'd like to take just a few minutes to sort of outline for you what this proposal is. It is an extensive proposal so I'm going to give you the "Reader's Digest" version. and the technique that I use when I go through here is basically I'm going to show what we do now and then compare that with what this proposed rule is. And I'm not going to read everything that's on these charts, guys, because most of you know what we do now. I just put it up there so that you can sort of visually compare the two. (Slide.) There are really four parts to this rule, part dealing with effective plans, part dealing with compliance with plans, part dealing with monitoring plan effectiveness, and that's sampling, and a part dealing with abatement. And I want to talk a little bit about effective plans and compliance with plans. And I don't mean to pooh- pooh sampling or abatement -- they're key -- but what we've done with this rule is to really try to focus on the fact that coal mines aren't like normal industrial operations. In normal industrial operations an industrial hygienist goes in and samples to determine if there's a problem. If they find a problem then they move to control that environment. Well, in coal mining you don't have to do that. We know any time you mine coal or transport coal you're going to be generating respirable dust and possibly silica. So you've already got a hazard. So we have to move to is to control that hazard any time we're mining or transporting coal. The average mine in this country operates 400 shifts. I say average because a lot of them operate more than that 400 shifts. What we're really trying to do is to control exposures of miners on every shift, not just the shifts that are being sampled. So the key to this proposal is we want to have an effective dust control plan in place every shift that you're producing coal. And we want to make certain that that dust control plan is maintained and operating before you begin production on every shift. So that's the key to what these proposals are; we want to protect miners every shift that they're working. How do we plan to do that with effective plans? One of the things, if you take -- again I want to focus the current program is on the left, the proposed program is on the right. One of the things that we have done in this rule is we're designing plans that will protect miners the entire shift. If you're working 12 hours, we want that plan to be effective for 12 hours. If you're working 8 hours, we want that plan to be effective for 8 hours. The second thing we're doing, and that's the key, is we want that plan to work at high production. George, put that other view up there. (Slide.) During the last two hearings there was a lot of confusion between what, at what level we were going to approve plans in terms of production. So we put this chart together. And I'm going to ask Jon Kogut to just take a minute and explain this. Jon? MR. KOGUT: Okay. As Ron said, there was considerable confusion expressed at the two hearings last week about the various production levels that we referred to in the plan verification proposal. So this chart is based on the last 30 production shifts that were actually recorded in a longwall MMU from our District 3 a few years ago. The little dots that are plotted along the left scale represent the actual productions recorded for those 30 shifts. Each dot represents one production shift. So, they're a little faint on the overhead, but as you can see, the three highest production shifts were up above 9,000 there, and the lowest one was just a little -- there were two that were more or less in a tie above, just above 2,000. There's an important distinction between, you should keep in mind between the percentile and a percentage of the average. The sixth highest production which is plotted there is just under 8,500 tons. And that happens to be the 80th percentile. Where that 80th percentile comes from is that it's the sixth highest out of 30. Six divided -- six out of 30, that's 20 percent. So that means that 20 percent of those production shifts are at that level or above, and 80 percent of them are less than that level of just over 7,500 tons -- I'm sorry, just under 8,500 tons. So that's called the 80th percentile. That's the sixth highest production The 10th highest is at around 7,500 tons. And two-thirds of the production levels are less than that value. That 10th highest is in the proposal what has been, what we've proposed as being the level at which verification sampling is going to take place. So what that means is that for a -- when we go in to verify the plan under the proposal, the production levels that counts towards verification sampling have to be at that level or above. And if they're not at that level or above, that 10th highest level, then they won't count towards verification sampling. Also, when a -- after a plan is approved under the proposal the operator is required to keep records of production levels. And when an inspector goes in and checks those, subsequently checks those production records, if it looks as though more than a third of the production levels, productions that are being mined on shifts are higher than that verification production level, then that would be grounds for requiring reverification of the plan. In other words, if the MMU is mining at levels more than third of the time on more than a third of the shifts that are greater than the verification level then MSHA could require that the plan be reverified. And the reason that that's set at one-third is because under the proposal we're setting the verification production limit level to be that 10th highest value which corresponds to the 67th percentile. Now, just for purpose of comparison I'm showing the average on their to be 6,295 tons. That's the average for those last 30 production shifts at that longwall operation. And another figure that was brought up at the hearings last week was a recommendation of the Advisory Committee that compliance sampling be conducted at 90 percent of average production. So, as you can see, the 90 percent of average is, of course, less than the average and it's considerably less than the 10th highest value. And another number that's up there is the 60 percent of average production which is what under both the current program and under the proposal those are the -- that's the production level that's required for MSHA compliance samplings. MR. SCHELL: George, put that other slide back up. (Slide.) Again, the point we wanted to make there is we're going to verify for the full production shift 10 hours, we verify for 10 hours. We're going to verify at higher than average production. And like Jon said, that we're going to keep records of that production so we can see if production is creeping up and you need to reverify. Next thing is MSHA's going to do that verification sampling. And when we verify that plan, only those controls listed in the plan can be in effect. Okay? High production, only those controls in effect, with a slight margin there because we know you can't get 100 percent each time. When we verify that plan we're going to be verifying more than one occupation. Up there you see we'll be looking at both the roof bolter and the DO on a continuous miner section. And what's important is when we verify that plan we're going verify based on two criteria, two separate criteria: 1) They have to be in compliance with the 2 milligram respirable coal mine dust standard; And then we're going to look to make sure they're in compliance with the 100 microgram silica standard. So both silica and respirable coal mine dust have to be controlled. We estimate it's going to take one to ten shifts to verify a plan. In some cases it may take more because you have to reach certain limits before we'll approve that plan. Lastly, we have proposed that if engineering controls have been exhausted and the Administrator reaches that determination, under limited circumstances downwind of the shear operator on longwalls only, operators would be allowed on an interim basis to use administrative controls or PAPRs on miners who work downwind of the DO. The point I want to leave you with, we are applying stringent criteria to the plan approval process to make certain that when we approve that plan we know that plan is going to work. And, again, our goal, compliance on all shifts. George, the next slide. (Slide.) How are we going to achieve compliance with plans? One of the major things that the Assistant Secretary has done in the past few years is to pass a requirement in the ventilation proposal that says that operators have to conduct an on-shift examination of the dust control parameters prior to production on every shift to make certain that those controls are in place and working. That requirement stays in place. The difference though, we've got better plans. So we ought to be doing an on-shift before every production shift on better plans. Secondly, we're going to be increasing our monitoring of that on-shift requirement. In addition to checking it when we do routine inspections we'll be checking it when we do our bimonthly sampling and we'll be checking it when we do abatement sampling. And as Jon mentioned before, we now will require that production records on every, on every MMU be maintained so that we can look to see what the production has been on that MMU over the past six months. What are we going to do in terms of monitoring plan effectiveness? George, why don't you jump ahead to that next slide? (Slide.) And one of the major things we're going to do that's in this proposal is we're going to single sample determinations. And this is a chart to show you what we're trying to get away from. This is a real mine. These are samples taken in April of 2000. And you'll see that five samples taken, these are operator compliance samples, two of those samples clearly are beyond the 2 milligram standard. One of them's almost double it, the other is at 2.4. We take no action based on those samples. And why? Look at the section average: 1.8. Two out of five samples show overexposures. We take no action. Why? Averaging masks high exposures with low exposures. We need to get away from that. (Slide.) We are proposing that when we do our sampling bimonthly that we do it as we currently do for an 8 hour period of time. We believe that since we're there, since we'll know what the plan parameters are, since we know where the miners are, 8 hours ought to give us a good idea whether or not that plan continues to be effective. And a key to this sampling is to allow us to make a judgment as to whether or not conditions have changed so that that plan is no longer protective of the miners on every shift. We are soliciting comments as to whether or not this compliance sampling should be full shift sampling rather than 8 hour sampling. When MSHA samples on a bimonthly sample, well, when MSHA samples bimonthly we're going to be doing what we do now, that's we go out and we don't sample just one occupation, we're going to sample at least five occupations on the MMU each time. That gives us an overall view of what's happening on that section and doesn't allow you to move people from dusty areas to less dusty areas when you're only sampling one person. Like Jon said, production has to be at least 60 percent to be a valid sample. We will every bimonthly period sample the DA and any DAs on or near the MMU. We will sample every Part 90 miner. We are proposing in these regulations that we only sample the non-MMUs, the outby DAs, at least once a year. And the reason for that, if you look at the exposure levels that we see in both operator samples and MSHA samples we find very few overexposures outby. I think last year we only issued eight citations nationally for overexposures on outby DAs. One of the key things to our doing the sampling is since we're there we can record what the plan parameters were in place, what the production was on that day, where the people were on that day. And over a period of time that gives you an enormous amount of data on what's happening at that mine and what works and what doesn't work at that mine. So just being, in addition to doing the sampling, collecting that data over a period, you know, six times a year, year after year gives you an enormous base of data on what's really happening at that mine. MR. NIEWIADOMSKI: I think it's important to recognize with regards to bimonthly sampling that that represents only minimum amount of sampling. Because our criteria calls for if any sample exceeds the applicable standards but is below the two sides value we're going to go back and sample an additional shift. MR. SCHELL: That's a good point, George. And one other point I would make is since you've got an approved plan, since that plan has to be on-shifted prior to every production shift if an operator goes out on that plan and we're there, so we would have known if that plan was being complied with, it's likely that we'll put that plan back into plan verification to make sure that that plan works. That will generate another series of one to ten samples to reverify that plan. (Slide.) Abatement. We think this is a significant improvement. In the past, operators took abatement samples. We didn't know what changes they had made to come into compliance, what their production was. MSHA is proposing to do all abatement sampling. MSHA will do the abatement sampling. We will be doing it based on single samples so even if one occupation goes out on the MMU we'll sample all five. All five have to come back into compliance. A difference, when we sample for abatement we want to do full shift sampling. Again, we will be able to record what the parameters were in place, what the production was in place. And repeating what I just said earlier, any time we have to do abatement sampling the first thought we're going to have is there's something wrong with this plan and it needs to be modified. That doesn't mean there couldn't have been a situation where a miner got themselves in the wrong, positioned themselves in the wrong place. But, again, we're going to be looking to see why that plan didn't control that environment on the day that they went out of compliance . Marvin, I think that's it. MR. NICHOLS: Okay. Thanks, Ron. It's been pointed out that I not only misspoke once but twice in my opening statement. I referred to this proposal as "full shift sample proposal." Of course I meant it's a single full shift sample proposal, the single shift sampling is what we're talking about. Okay, at this time we'll consider any evidence or discussion on any aspect of the two proposals. And as I said earlier, we'll begin with those that have requested to present information in advance. And following all the presentations for folks we have signed up, anyone else that wants to come forward and make a presentation will be allowed to do so. We have the hearing scheduled for all day today and we have this room up until midday tomorrow. So we should have plenty of time for anybody that wants to make a presentation. So at this time we'll start with Joe Main with the United Mine Workers of America. STATEMENT OF JOE MAIN, UNITED MINE WORKERS OF AMERICA, ADMINISTRATOR OF HEALTH AND SAFETY MR. MAIN: Good morning again. My name is Joe Main and I am the Administrator of Health and Safety for the United Mine Workers of America. And as the panel knows, I also served on the Secretary of Labor's Advisory Committee which was instructed to develop proposed rules for the government to act on to reform the coal mine dust program. And as I have said in previous testimony before this panel, this rule falls far short of what's needed to protect the nation's miners. It falls far short of that that miners have expected and demanded over the years. It fails to address the law suit continued or filed by the miner workers on January 13, 2000. And it seriously fails to follow the recommendations of the Federal Advisory Committee which I served on. And each of those areas I want to express the extreme disappointment of the United Mine Workers for the proposal that's before us. And I came to one conclusion after trying to rack my brain to figure out how we could make this rule work. And the only conclusion I came to is that we need to elect Ron Schell President of the United States. We need to give him the single duty of carrying out the proposal that MSHA has prepared, and we've got to go to God and ask for him to be placed in a state of immortality. Now, short of that I have not figured out any way for this rule to actually be carried out in a way that would be effective across the board to miners. And, as we pointed out, we do support the agency's concept of a single full shift sampling. After reading the rule it fails to accomplish that and it fails to accomplish the wants and needs of miners, the findings of the Advisory Committee, as I've pointed out. And it falls far short of really making sure that the miners are really protected in the workplace in this country. We also support the concept of plan verification. But in its current structure in the rule there is several difficulties with that rule that we think should not be finalized in that form and enacted as a final regulation because we think it would fail to adequately protect the miners of this country. And as we pointed out, we're very concerned about the work empowerment aspect of this rule. We believe that actually there is deteriorations in current worker empowerment protections and rights that miners have. And we believe the process was really designed for the government and to be implemented and used by the government. And by the style of the proposal and both the policy concepts of taking standards out of the current rule and placing those into policy, by using the policy approach in the preamble to implement the agency's proposal, and by designing the rules in such a way that are very discretionary we believe that it has weakened the knees of miners' protections or rights under the current -- that miners have under the current rules. And would fail to have a standard in place that miners could clearly understand. I've talked to many miners since this proposal hit the decks and one thing that I have found is that the miners out there are totally confused about what this rule is and does. And as I pointed out, I think the announcements that were provided to the public on the implementation of this rule did not fairly characterize a lot of the changes that took place. And I think it served to create some of the confusion that we're continually trying to clear up in the coal fields. I know many miners that I've talked to thought that when that announcement came out there is full shift sampling for miners during compliance sampling. That is just not in the rule. We understand that full shift sampling would only apply on abatement samples in terms of compliance purposes. Miners thought there was a takeover of the operator program, which we've all sought for years, only to find really the agency is going to continue to do what they are currently doing now and eliminating the mine operator sampling program. And there's a few changes around that, but generally speaking that's what the proposal amounts to. That's not what miners wanted, that's not what the mine workers wanted, that's not what the Advisory Committee sought to do and so on. So, and I could go into more detail which I'm going to bypass that for right now. We'll doing a lot more for the record. And other folks will be testifying here later. Miners in Prestonsburg and Morgantown I think sent a clear message to this panel as I pointed out in the closing remarks in Prestonsburg, and that was to send the proposal back, go back to the drawing board and issue a new proposal. And that's particularly true with respect to Parts 70, 75 and 90. And I just went back through and just in my mind all the miners that testified who came from West Virginia, Pennsylvania, Alabama, Kentucky, Illinois, Virginia, and there was just this clear message from the miners that that's what they wanted done. And they pointed out I think a lot of the flaws in the proposed rules that would really affect them at the mine site. And I think that there is an obligation on the part of this panel to listen to the public since it is only part the public really plays in this rulemaking process. And if the government fails to heed that I think that they have neutered really the citizens' rights to influence government actions in this country. And being those that are directly affected by this and representing miners who will directly affected I think that would be just entirely the wrong course of action to take. In addition to the Advisory Committee, the lawsuit, the historical record that miners have laid out asking for different reforms that just did not take place in this rule there is another issue that has not been discussed before this panel. And I would like to spend a little bit of time this morning on that. There's some confusion out there that I picked up in Prestonsburg. And I think it's when I get through this people will understand what it is. There is the view that this whole rule is a NIOSH/MSHA rule. And as I have read the record and I've listened to the announcements, as I clearly understand it the only part of this rule that MSHA or that NIOSH has played a part in is the single full shift sample proposal under part 70.500. Is that correct in terms of -- MR. NICHOLS: That's generally correct, I think. MR. MAIN: And my question would be given the fact that MSHA or that NIOSH issued a criteria document in 1995, submitted it to MSHA in accordance with the Mine Act which required MSHA to take official actions, and that is to either issue rules based on that criteria document or publish a notice, if they decided not to do so, why they decided not to do so. And as I've plowed through this rule and the preamble I don't see that clearly identified, particularly in the areas that the agency has engaged in rulemaking on. And we're going to do that throughout this process. But I think it's a fair question to ask, why was NIOSH not a party to the development of the rules under Part 70, 75 and 90? MR. REYNOLDS: Joe, I just wanted to clarify that the reason the rule is structured the way it is and the reason we have two proposals is the only thing that NIOSH participated in was the issue of whether we could accurately measure over a single shift the level of respirable dust. NIOSH does not have rulemaking authority and for that reason they were not involved in developing the rules under Parts 70, 75 and Part 90. They were strictly involved in the issues of measurement under the single full shift measure proposal, the joint proposal with NIOSH and MSHA. So the other, the plan verification rule is completely the Mine Safety and Health Administration. That's why the rules are structured the way they are, why we have the separate rules. MR. MAIN: But having said what you did and having a knowledge of the criteria document and the rulemaking process I find it strange that NIOSH has specific recommendations made with regard to single full shift sampling that is pertinent to the rule that was published on Part 70.500, and they are participants. And the agency likewise had pertinent information and involvement in parts of Part 70. That, I'm confused as to why NIOSH was a party to the Part 72 rulemaking process and was not a party to the Part 70, Part 90 and the Part 75. And if I could go one step further and just explain. The NIOSH criteria document recommended that there be full shift sampling as I read it. And I have a copy which I would like to introduce into the record because I don't think it's fully in the record yet on the Part 70, Part 90, Part 75 rulemaking process. There is some excerpts or references to this in a couple areas but the whole document has not been, as I have read the preamble, really a broad piece of that. But the single sample rule in one instance is recognized under Part 70.500. And its implementation is recognized in Part -- or the Part 72.500 rather is the single sample rule. And the implementation of, I want you to check on that, is represented in the Part 70 which would define what a full shift is, you know, how miners would be sampled, the actual exposure level that would be applied. So, you see I'm a little bit confused why they were over here on this part of it but it wasn't a part of the second part. But there's other issues as well but that's just an easy one to settle. MR. REYNOLDS: Well, once again, the reason they were strictly involved in the issue of whether we could accurately measure and it was MSHA that would have exercised the authority to create the mandatory standard under Part 72 to implement that. MR. MAIN: I understand your answer but I don't understand you answer. And if that makes any sense I still can't understand why they weren't a party to the other process. If you look at the NIOSH criteria document there is some clear-cut recommendations that went to MSHA in September of 1995 that is directly reflected by this rule. And I'm going to go through a few of those and just point those out. And with that I think that NIOSH ought to have been a party. And before this record closes I'm going to make an official request that NIOSH does respond to this rulemaking. And I question after reading this rule the conflicts between both the Advisory -- the 1995 criteria document and what MSHA proposed is, I sat back and watched this panel for, you know, two hearings now and I have not seen any weigh-in really on the debate on those issues that had been clearly articulated by miners and by those who were testifying. The lowering of dust standards versus the raising of dust standards is one clear on. MR. REYNOLDS: I just wanted to clarify once more that NIOSH didn't have anything to do with the changes, the proposals for Part 70, 75 and 90. And the criteria document would have been in the form of recommendations. That's the role of NIOSH. So they would not have been involved in the rulemaking, you know, those particular rulemakings, they were strictly involved in the single full shift measure proposal. MR. MAIN: I understand your answer but, again, I don't understand your answer because I think there's a conflict both ways. Okay. And to that end I'd just like to walk through this proposal because I think miners do deserve to hear from NIOSH about their position on this or government agencies that have done a tremendous amount of research and work, consistent with the Advisory Committee, they launched in to try to develop reforms. And as a starting point I'd just like to start talking about the 2 milligram standard. Now, MSHA had proposed the 2 milligram is probably the best standard on coal mine longwalls to be done with the 4 milligram. And I know there's some difference about how you define what I'm saying. But in my book two is two, four is four, and there's going to be a four that is clearly stated in the proposed rule. NIOSH, however, recommended to cut the current exposure level in half to 1 milligram. And I just seriously question does NIOSH support the criteria document and their findings or do they support the position of the proposed rule issued by MSHA? Because any way that you slice it there is a clear difference there. If one agency is proposing cutting the rule in half to 1 milligram and there's a reform proposal to raise it to 4 milligrams that's a clear conflict. And I think it's a clear question to ask if NIOSH supports the criteria document or if they support the MSHA rule? MR. GRAYSON: NIOSH policy is contained in the criteria document. MR. MAIN: I'm sorry? MR. GRAYSON: NIOSH policies are contained in the criteria document. MR. MAIN: Which means? MR. GRAYSON: They are recommendations to the agency on what we feel are our proper measures. MR. MAIN: And in support of that position let me ask the question this way, NIOSH clearly recommended that the exposure level be reduced to 1 milligram in this criteria document. Does NIOSH still stand by that position? MR. GRAYSON: Yes. MR. MAIN: Yes? MR. GRAYSON: Yes. MR. MAIN: Okay. MR. REYNOLDS: One thing I wanted to interject is that actually reducing the exposure level was outside the scope of this rulemaking. And as I'd mentioned earlier, there is another rulemaking action that was under development at Mine Safety and Health. Earlier, you know, farther down the rulemaking process is an advance notice for proposed rulemaking. So that was outside the scope of this rulemaking as to whether or not to reduce the exposure level to 1. MR. MAIN: I understand two things: one, that the government in 1980 issued proposed rules or filing rules with the promise to miners that they would do more. And we're still back here in 2000 trying to get them to do more stuff. So the promises from the government are not well received by the miners. And I -- MR. NICHOLS: I think we've answered your question. Larry says they support what's in the criteria document. We have it out for advance notice of proposed rulemaking. MR. MAIN: But I think the difference here then, Marvin, is this, that what you did in this proposed rule was actually affected that very issue by raising the dust standard. Okay. Had you not raised the dust standard then I think it would be a different issue. But -- MR. NICHOLS: We haven't raised the dust standard. MR. MAIN: Okay, we can debate that. But there is a 4 milligram standard that is permitted. MR. NICHOLS: Joe, you know that's the gap between the rule and the protection factor for the personal protective equipment. MR. NICHOLS: And I know miners who are currently wearing airstream helmets will have based on the application of that rule an increase in the dust levels if that goes forward, if you want to look at it that way. MR. NICHOLS: For a very small section of an overall mine where all engineering controls have been exhausted. MR. MAIN: Nonetheless, those miners that are currently working at that, from our opinion, would have an increase. MR. SCHELL: Joe, I just need to just technically clarify. What we're saying is that if you're working downwind of the shear operator with a PAPR on you won't be exposed to 4 milligrams of dust. We're saying that we're putting a protection factor of two on that. And if you have that respirator on you will not be breathing 4 milligrams of dust or we wouldn't be recommending it. Now, if you have data to show that that protection factor isn't proper we need to get that. But to say that miners are going to be exposed to 4 milligrams of dust isn't correct. If they're wearing that PAPR we have reason to believe that they won't be exposed, they won't be exposed to 2 milligrams. Just like the administrative controls, we'll allow them to use administrative controls downwind but we're not going to allow them to be exposed to more than 2. So maybe I'm being technical but you need to understand we are not saying we're going to allow anybody to be exposed to breathe 4 milligrams of dust. We believe that that instrument will make certain that they don't breathe 4 milligrams of dust, that they won't breathe any more than 2. MR. MAIN: Three responses I have. Number one is that miners who are currently wearing Racal helmets on those areas will have their dust increased if permitted to go to the airstream helmets and increase the dust levels to 4 milligram. I think that's just a fact of life, the dust generation levels would go up. The second point I will make is with regard to the evidence about the use of airstream helmets, I think there's been considerable evidence put on the record already with regard to the faultiness of those only approved -- the only approved devices I know in this country today, if there are more then I'd like to hear about those, whereas the filter system has neutered the ability of those airstreams to provide a quality respiratory protection to miners is creating all kind of difficulties. I would also let you know that I've been in many mines and for those that think that these things are being worn as approved respiratory protection devices as outlined by NIOSH is just not true. I've been to a lot of mines where that seal shield is taken off of there. And there's a simple reason for that is in that enclosed headpiece a lot of miners just find it totally uncomfortable to breathe and the condensation builds up creates problems. And they're not being worn in many mines by many miners as an approved device. And I think that creates some problems. And I think the testimony that's been presented too shows a lot of difficulties in work environments that's already been put on the record. MR. SCHELL: Well, where we might disagree a little bit is with your first premise that dust levels are going to go up. What we're saying is they're already there. What we're saying is that they're mining at a rate and they're generating a level of dust. And we've gone in and we've checked and we can't find a way to control that dust anymore, it's there already. And what our concern was that we not walk away and pretend that everybody is protected, that if in fact they're already generating that level of dust they've exhausted everything, we need to do something to protect those miners. And that's where we're saying in those circumstances we're going to control, we're going to make certain that those engineering controls stay in place and we're going to control to 2 milligrams to the DO. But we're not going to let the dust go up that's already there, Joe. What we're going to try to do is protect that miner who's already in that dust because we can't do it through engineering controls. MR. NICHOLS: You're not suggesting that those folks that have engineered out the problem can forget about engineering controls and go to airstream helmets, are you? MR. MAIN: Given my knowledge of this system and how it's worked and how many times operators have come before us in this agency saying, "I've exhausted all the controls, give me airstream helmets," I know what we can expect, Marvin. That just, you know, is going to happen. It has happened. And I know that the agencies have been weak-kneed at different times in life and approved mine systems and mining conditions that we believe are not in the best interests of miners. And that's the problem we have. We also know that under the current scheme miners do have a control over what happens to engage engineering controls. If they're out of compliance MSHA cites them, miners have the ability through the legal process that's going to be removed now up to 4 milligram under this proposal, to challenge the agency's enforcement of that if they fail to properly enforce it and bring about the engineering controls. And I'm a firm believer, and I believe that has worked in the past and it needs to continue to work in the future. I think the problem everybody is missing here is we lack quality respiratory protections for all miners in this country, not just longwall miners. And I've raised this on many occasions. I have offered to work and am jointly working with the BCOA through a partnership to try to develop better working respiratory protection for all miners. I have looked at the record regarding the operators ability to use respiratory protection to lessen enforcement actions. And if the enforcement numbers I've got from MSHA are any indication of what's happening out there mine operators across the board are not taking advantage of that by providing quality respiratory protection when they are out of compliance to get them on an SS citation. I think the latest numbers I got is still in like the 95, 96 percent range of SS citations. So what I'm saying, Marvin, is I think the law has worked. It needs to continue to work. Miners do not need to have that right stripped away from them where they can now challenge. We need to hold to the traditional 2 milligram standard that miners fought hard to get to in this country. We need to use rational approaches under citation to fix these problems. And I think it has been executed in many mines in this country, Trail Mountain, Jim Walters and other location. And not strip this right away from miners and not move away from this hard fought standard that miners, many miners died to gain. MR. NICHOLS: Okay, you wouldn't be opposed to some plan like, I forget which Jim Walters mine it was at, the -- it's an administrative control referred to as the Haney plan where are you saying you'd support a plan like that? MR. MAIN: I'm saying that in the context of the Mine Act that whenever an operator is out of compliance that during that out of compliance period that they take measures to protect those miners. I firmly believe that. And at times during that phase while they're installing the engineering controls and fixing that, respiratory protection by law is obligated on the part of mine operators to be provided to miners. Miners need to be reduced from that exposure in those circumstances but with the clear mindset that that operator has to continue to develop and implement engineering controls to fix that problem and it's being done while it's under citation. With a legal responsibility of that operator to comply with this law that replaced the Mine Act in 1969, that is I think the most precious thing that miners have. And that's one of the problems I have with this whole proposal is what MSHA did with this is not only opened that floodgate -- and I understand what MSHA's saying, but I understand, you know, once out the door, you now, more horses get out of the barn. But also understand the removal of the miners from this whole process. And when my guys ask me what can we do when they do that? I said, stand and scream. Because that's the only right that you have. As opposed to now you can go in and tell that federal inspector this operator isn't moving fast enough to fix this problem, we don't agree with that abatement time, we don't agree with this modification. You put the paper on then which is the order if they don't get this thing fixed now. And what happens, and I think that has set the environment for both the mine operator and the mine operators to work together along with MSHA to get the problem solved to move forward. It puts -- it builds the kind of box that's necessary to get to an end solution of getting quality controls in, Marvin. And in the bottom of my heart I believe that. And I think whenever you remove that you're removing that control that miners have. And, you know, I support the developments of worker-friendly respiratory protection that really works for miners. In the study that we're doing jointly I think we're, you know, a ways a way from doing that, you know, figuring that out. But it's time, what we did was send this back to the miners, let them figure out what kind of respiratory protection they need based on giving them a model, what would you change about that, what would you fix? But the whole concept here is not to replace engineering controls with that, it's to buffer the current law. MR. NICHOLS: Do you think miners understand this so-called compliance with the 060? The example we put up here clearly shows that two miners were overexposed but that once we got through this average scheme there was no noncompliance. Do the miners understand that? MR. MAIN: I think a lot of miners understand that. And I think and also it's clear as a bell from miners' perspective, as far as I know from the Mine Workers' perspective we think that's something that definitely needs to be changed. We need to go to the single sample application. And we need to have a standard that is applied that quickly and legitimately requires the dust to be placed under control. If I could go through more of the issues. The MSHA proposal would raise the exposure level for compliance sampling to 2.33 and 1.26. NIOSH recommended that MSHA make no upward adjustment of the REL for measurement and certainties. Further, NIOSH recommended that the 1 milligram, we call a REL which is recommended exposure level, would actually be equivalent to .09 when measured according to NIOSH. And that's contained in the abstract of the criteria document. Now, as I read the MSHA proposal and Part 70 and I read the NIOSH criteria document again I see a clear conflict with the direction of the agency's, the MSHA proposal, and the clear recommendation posted to MSHA by the criteria document. And I understand what you're saying that there will be more rulemaking. You're going to address this. You're addressing this now. I mean that's one of the fundamental problems. And I have no hopes that we'll ever see another reform of the dust program once this gets out because we've waited 25 years to get here. And I would not advise miners across this country to put any weight on there being another reform in their lifetime given what we've gone through to even get this far. Having said that, there's a clear conflict here between the proposal of NIOSH and the MSHA proposal. And again I'm going to ask NIOSH do you support the recommendation that you made that there be no upward adjustments in this proposal and that really the direction that MSHA needs to go is to lower the dust standard with a much lower exposure level? MR. GRAYSON: Yeah, I know this doesn't work and I will try to speak loudly but it does go to the record. But at this point I really should say that, yes, those are the policies of NIOSH that are contained in there. They're still the policies of NIOSH. You know, however, NIOSH does support efforts by MSHA and anyone else that will reduce miners' exposures to dust and silica dust and also eliminate or at least reduce significantly the incidents of the diseases that we're here discussing. And, you know, we can realize that steps, strong steps are necessary. And oftentimes they do need to be incremental in nature. And but once again, our policy is contained in the criteria document. That was all those policies that you're about to cover are recommended such that we have the greatest possible impact on reducing disease and reducing exposures. MR. SCHELL: Joe, could I comment on two things? And maybe again here it's semantics. At Prestonsburg I think Tom Wilson asked a question about how many overexposures we discovered using single sample at 2.33 versus using average. And I believe what we said is that by using single sample at 2.33 we uncovered something like 2.5 times as many overexposures and resulted in us taking steps to reduce that dust level. So there is a significant improvement in miner protection of going to single sample versus our averaging now in citing at 2.1. And that was the gain that we were trying to make. Now, granted, we believe that for legal reasons that the Secretary has the burden of proof to show that there is a violation. That's why we put the upper limit, the two site value. We don't accept 2.33 as being in compliance. And that's the point George was making. If you're between 2.1 and 2.33 that's an area that's going to be targeted by MSHA for further sampling. So we do that to meet a legal burden, not because we believe 2.33 is where we should be. And the last thing I would refer you to is at page 42,069 of the preamble to address you point. It says, and I will quote it, "Although it is beyond the scope of this rulemaking, in its 1995 criteria document NIOSH recommended a time weighted average exposure to respirable coal mine dust of 1.0 milligrams per meter cubed up to 10 hours per day for the 40 hour work week. The Secretary of Labor and the Secretary of Health and Human Services believe that miners' health can be further protected from the debilitating effects of occupational respiratory disease by limiting their exposures to the applicable standard." So I think both NIOSH and the Secretary believe that reducing the standard is the way to go. If you remember, the Advisory Committee's recommendation was that in addition to reducing the standard they did ask the Secretary to also do what they could to ensure compliance with the current standard. And that was really the focus of this rulemaking. MR. NICHOLS: I think any -- you know if I'm wrong about this the panel can correct me -- but I think any instrument we use, whether it be dust or noise, has a correction factor. I mean certainly we use that with the noise rule also. MR. MAIN: It's obvious that the correction factor works to support the interest of the mine operator and not the miner. MR. NICHOLS: No, Joe. It's purely based on the accuracy of the instrument. MR. MAIN: Yeah. If it goes plus or minus then what I'm saying is you go to the high side of the equation as opposed to the low side. MR. NICHOLS: Well, if it was 1 it would be higher than 1. I mean it's a corrective factor for the instrument. MR. MAIN: But I'm just saying that in this rule the agency did set a standard by which compliance is going to be measured by. And that standard was -- is going to be effected as a new standard across the board in this rule. And as the agency addressed that standard I think they had an obligation to follow the recommendations of the advisory committee. And I'm not here to tell anybody, any miner to rely on any hopes of the agency coming back to readjust the exposure level because in my mind I just don't think, you know, that's going to happen. And it is part of this rulemaking, in our opinion, and I know there may be some differences there. The MSHA proposal also dramatically reduced the frequency of compliance sampling. Only six shifts on a section and one shift outby of coal mines would be compliance sampled. And those are not guaranteed, as we pointed out, given the fact that they're a policy and not a regulation. And there's a clear question of funding attached to that. MR. SCHELL: Joe, I would just add if you look at plan verification we have gone to the other side. If you'll notice that on plan verification that to verify at one sample you have to come in at 1.7 whatever it is, which does the same thing, gives greater than 95 percent probability that in fact you're below the levels. So we've tried, on a compliance side we've had to put the adjustment factor in. But on the plan verification we've tried to go the other way and required it to be, if you wanted, you know, required the plan to be verified below the 2 milligrams. MR. MAIN: And we understand that. And that's for the initial plan verification. The follow-up for determining miners' continued exposure is rested, however, in the compliance sampling which gives us great concern in that there is very infrequent sampling of miners once the plan is verified. Now, NIOSH called for sampling to be periodic and occur frequently enough that significant and deleterious changes not be permitted to persist. NIOSH noted although a single full shift sample could accurately measure the average airborne concentration during a shift, a single exposure measurement has little predictive value for demonstrating that a work environment is and is likely to remain acceptable. And so I think they noticed, you know, the need to do in that statement more constant measuring because you just can't rely on that to be the, you know, the totally predictable factor. And NIOSH used an example, one or more closely spaced samples being taken instead of the current bimonthly sampling where the environment is particularly dynamic. The NIOSH recommendation did not call for reduced sampling frequency. I mean I could find that nowhere in the criteria document. And, you know, again, you know, does NIOSH support the reduced compliance sampling which is not even guaranteed by a rule, guaranteed by law, funding's not guaranteed, in this proposal because I think there is a clear conflict between what I read in the criteria document and what I see in the MSHA proposal. MR. SCHELL: Joe, I'm sorry, were you saying the criteria document recommended 36 shifts of sampling? MR. MAIN: I didn't say it recommended 36 shifts. I said it -- if you read the thrust of it, it recommended more infrequent sampling. And I don't think -- there is nowhere in here that I see that it recommended a reduction to six shifts a year. And I think that's contrary to everything that I read in this document, Ron. MR. SCHELL: Could it have meant an increase to six shifts a year by MSHA? MR. MAIN: I'm sorry? MR. SCHELL: Could that document be read to mean an increase to six shifts a year by MSHA? MR. MAIN: Well, I think the, if you read the document, it wasn't talking specifically about MSHA or about the operators. As a matter of fact, probably more so about the operators' scheme than the MSHA scheme. But it was talking about the need to have the frequency of sampling. And that's a real major problem I think that everybody understand that we have with this rule. And we believe that the NIOSH criteria document supports convention of and will have more frequent sampling as opposed to less frequent sampling. MR. NICHOLS: That's a good point though, I mean to talk about where MSHA has come in the last year we've moved from one sampling shift a year to bimonthly. That's a significant increase. MR. MAIN: In the last year? MR. NICHOLS: Last -- MR. TOMB: April. MR. NICHOLS: How long? MR. TOMB: April. MR. NICHOLS: Since April. MR. MAIN: Well, correct me if I'm wrong. I think the record reflects during the workings of the Advisor Committee you guys were doing about four underground samples a year; is that correct? MR. SCHELL: Yeah, but then we implemented that in a phased-in fashion, Joe, as we got resources from the Congress. We started with a pilot program in a couple districts and then we expanded that pilot. Then as we got more resources from Congress we went to the six. So it was over some phase period. But you're right, the Advisory Committee we were talking about doing it fours and twos. We never proposed to do six and twos to the Advisory Committee. MR. MAIN: Never proposed to do six and twos. MR. SCHELL: Six underground. That's bimonthly sampling. MR. MAIN: Well, I think there are some statements that was read into the record which reflects the transcript that I think that MSHA was at one time talking about the 12 a year. And we're submitting that as part of the documentation. But I disagree that we went from one to six. I think we went in the context of 1995 from four to six as I understand the chain of events. And I think it was a clear recommendation from the Advisory Committee to beef up what you were doing then. And then when you got in a position to take over the program to do that. And from what we've seen is you went to the beefing up process here and when it came time to take over the program that fell fairly short. And some of the recommendations from the Advisory Committee that would have implemented that I don't think have been met. And I think that's part of our problem here that, you know, you beefed it up but when it got to the point of taking over the operating sampling which would have gave us more frequent sampling, and maybe just the inability of the agency to do that, you know, may be what we're faced with. We do have a FOIA request in, Marvin, that we're still waiting on. And it does address itself to the amount of inspectors, the number of mines, the number of MMUs that have existed from 1995 to 2000. And it's very important that we get that document because we'd like to set down and take a look at, get a good perspective of what we think the capabilities of the government may be. And we have the ability to do some outside influencing as well with the budgets of the country. And we still haven't received that yet. And we do need it as part of our decision making on this whole rule. MR. NICHOLS: Okay. MR. GRAYSON: May I add one thing, please? You're right in one instance that frequent monitoring of exposures was what was recommended without being specific. But later on if you look at periodic exposure monitoring part of that document you'll see that it was suggested that as necessary to show that exposures are controlled -- MR. MAIN: Yes. MR. GRAYSON: -- is the language. MR. MAIN: And one shift outby in coal mines and six shifts sampled out of maybe 900 a year, that's the thrust of the proposal, which is not even guaranteed by law, is that that's balanced again, Larry. Because that's what the proposal does. There's other provisions in the criteria document that I'm not going to go into a lot of detail today. We're going to be covering that in the written record, you know, on the silica levels that's addressed. NIOSH had recommended a reduction of about half, I think, the current time weighted average. And they also as you look at the structure, the full shift sampling, and what's contained in the lawsuit calls for miners' exposure over the entire work period. That's not addressed in the proposal. That was recommended by the Federal Advisory Committee, by NIOSH in the criteria document. And, actually, I think it was a 10 hour, 40 hour week was maintaining a 1 milligram standard over a 40 hour week, 8 hour day which is sort of like the encompassing standard that was proposed by NIOSH. And as we see it in many areas the MSHA proposal goes in the opposite way. MR. SCHELL: Joe, I don't, I just don't understand that. Could you clarify that. Because I thought what we were trying to do was we clearly tried to expand to looking at full shifts. Now, we didn't look at weeks beyond 40. But in what sense did we go the opposite way? MR. MAIN: In terms of the raising of the standards versus the lowering of the standards and having a measurement at the end of the day. If you look at the NIOSH components I think it was -- and it was like the Advisory Committee component on the recommendations, it was clear that there was a drive to lower dust standards in coal mines. There was a drive to measure the miner's exposure during a full shift and, as well, to measure that miner's exposure over the work week. And I forget exactly what the recommendation is in the Federal Advisory Committee but there was a recommendation I think to clearly accomplish that. And I think when you look at the structure of the proposed rule, and particularly when you get to the avenue of the backup verification of the plans, you find that on a compliance sample you have a 480 minute sample, not a full shift, regardless of the shift length. You don't have any measurements that really reflect, I don't think, the full work week which is contained in the lawsuit that we have addressed, the full measure of exposure, and not contained in the advisory committee or the NIOSH criteria document. You have the stand that there's going to be 2.33 or 1.26 which in my opinion, and I just, you know, 1.22 as some miners pointed out, and I agree with that logic, does not go in the same direction of the recommendation of the NIOSH criteria document. Really having a .09 I think with all the variables applied is laid out in the abstract. So I think there is a lot of differences there. I think it does, this whole thing does go in different directions. I think miners were very disappointed when they didn't see a standard, Ron, that said we sample you, you're working 12 hours, we're going to sample you for that full shift and get a full measurement to determine your compliance in dust levels. MR. SCHELL: Okay. And we've asked for comments on that. One thing I'd like to clarify on the record, and the whole basis for this rule, is what we, our goal with this rule was to eliminate excursions above the standard. What we found with poor plans and what we found with operators doing abating and what we found with multiple, averaging multiple samples is that you frequently had excursions, like you said on that chart, at 2.4, 3.8. So that the whole thrust was to put a ceiling so that miners would not be exposed above the 2 milligram standard, and if you want to characterize, 2.33. But it was to get rid of these 2.4's, 2.5's, 3's and 4's, that they would no longer be permitted. And the underlying concept in the rule is by eliminating those excursions, those frequent excursions, miners are going to be more protected and disease is going to come down. So that the whole thrust of these rules is to lower exposures of miners by eliminating these excursions above the standards. MR. NICHOLS: Yeah. Do you think these two miners that are overexposed up here might be disappointed in the fact that the three other samples let them average down theirs? MR. MAIN: Marvin, we agree with this whole averaging thing. MR. NICHOLS: Well, you keep saying the disappointment of miners. If I was those two miners overexposed I'd be greatly disappointed in the current. MR. MAIN: And I think that we've been on record saying let's do that. So let's do it. Okay? MR. SCHELL: But am I making my point, Joe? We are driving exposure levels down through these proposed rules by eliminating those excursions. That's what we were attacking in these rules and that's what the preamble says that we're attacking. MR. MAIN: But you can't just pull out one piece - - and I think that's the center of the problem here -- and look at that piece of the rule fixing the, reforming the system. And my fear is that that's a lot of what we've wound up with. You know, I can tell you, Ron, I've talked to a lot of miners who do not believe that sampling them one shift or six shifts a year for 480 minutes for a compliance sample as the backup on 60 percent production, as I understand the policy that would be applied, at 2.33 is the kind of system that they expect to have in place to protect them. Now, in terms of the averaging, you know, Marvin we've said it, we agree with you on that, let's do it and get it done. But I think on all these other issues there is some real fundamental problems here that just don't address the needs of the miners that I think you're failing to understand. I do understand what you said. And I think miners appreciate having that single sample take the averaging out. But I don't think, and there's testimony has been put on the record, these outby miners, I've had a lot of side discussions with miners about that, you know, their concern is they were, Ron, whenever they spoke with you in January, or 1998 when you were discussing the record, that there was infrequent dust sampling then in the outby areas. And they were concerned that miners that work in a lot of these areas that wasn't even going to get sampled. And that problem needed to be fixed. We need to change this whole DA thing which we haven't had a chance to get into to any degree other than I think miners putting it pretty eloquently, you know, that that DA outby is not working even under the current system. And we don't fix it by going to 1. MR. SCHELL: Well, my response is we did look at the outby DAs. And, remember, we are sampling, by definition we are sampling dust generating points with the DA. And that concept was so objected to by the operators that they sued us on the DA concept on the theory that we were sampling an area where people didn't even exist. And even the Court of Appeals said that even though it's a more stringent way of sampling that that was a reasonable way for the Secretary to do it. So we didn't, when we drafted these rules we didn't try to forget the outby guys. We went out and we took a look at what operator dust exposures were, what our dust exposures were. And I mean we don't need to re-look at it, Joe, but what we found is that we're doing a pretty good job of controlling outby DAs sampling the areas where the dust is being generated. MR. MAIN: The point that miners have made, Ron, is you're not sampling where they're at. And that's one of the things I clearly hear from the testimony. And we'll provide more evidence if that's necessary. But I think that the miners have pretty well eloquently stated that for the record that you're not getting then while they're out in the dust. And that's the fundamental problem with the outby rule. I'm going to close off of here and give other folks the opportunity to testify. But I think that, you know, it's important to make note that the criteria document was noted for government action in accordance with the law. As we view the law we think that the agency is going to follow the recommendations of the NIOSH criteria document in developing standards of which they specific addressed and make changes in. And we think that's part of the overall record here. And I will submit this for the record as part of our testimony. And, also, as promised at the last hearing I think anybody that sits on this panel should have read this. It's an official document. Hopefully, I've got enough copies around. If you're short, please let me know. And that document I think as I noted at the last hearing was drafted by an investigator reporter that received a commendation by the President of the United States for just as, as I understand, a sound investigative report. And I challenge this panel to figure out this one magic answer of six shifts a year with a plan that's verified at those mines represented in that story that failed to implement that plan that was verified when MSHA is not there and miners who are afraid to speak up because of losing their jobs have no other protection in this void. And I challenge this panel, if you don't fix that problem you're not going to fix Black Lung in this country. Just take it to the bank. And if you don't figure out some way to continuously monitor that dust in the absence of federal inspectors you're not going to fix that problem. And if you don't figure out a way to do it to the best of your ability so that's not tampered with you're not going to fix that problem. And the benefits needed there clearly is, one, is continuous dust monitors in coal mines. And I challenge you to search in your hearts and your mind what you're doing here. And you answer the question I've run through my mind, How is this proposal going to fix that problem? It doesn't. And I thank you very much. MR. REYNOLDS: Joe, I just wanted to ask you, I asked you in Prestonsburg as well, that I understand that your position is that you do support the single full shift sample joint proposal with NIOSH and that most of your comments are addressed to the MSHA proposal for plan verification and compliance sampling for dust? MR. MAIN: The problem -- MR. REYNOLDS: Most of your comments are addressing those? MR. MAIN: Well, the problem areas of the single shift sample rule is not etched really in 70.500. The problem with that rule is found in 70.100, 90.100, if I've got my numbers straight. And there is some technical issues that we have with the proposal which I promised that we would address when we get back. And Jim Weeks is going to go over those today. MR. REYNOLDS: It's not really the accurate measurement, it's as it might be applied in Part 70 and 75? MR. MAIN: As it's applied as the exposure levels are defined, as full shift are defined, all those are in Part 70, so on. Because all the single sample rule does is explain the policy of the -- and I keep saying "policy" -- it's a policy that would now be the rule, that the agencies can use the single sample method for the purposes of sampling. And other than few areas that Jim Weeks will be addressing a little bit later on I think it's that simple mine with the problems, like I say, over in the other parts of the regulations. In closing, on behalf of the miners, I'm probably going to come back at the end and do a little bit more clean-up, but in behalf of the miners we urge that MSHA go back, come out with a real reform package that addresses all the points that miners need and do what's right for the miners. Thank you very much. MR. NICHOLS: Well, wait a minute, Joe. I think there's some practical pitfalls to that last recommendation that you ought to understand and think about. It's my understanding that you generally support single full shift sampling and plan verification. MR. MAIN: Concepts of those. MR. NICHOLS: The concept of those. And that this rule contains some improvement. I think there's some hurdles to overcome if this rule goes back to the drawing board. One is that somebody would re-propose it. I'm not saying that would or would not happen but it's going to take -- it would take weeks or months to do that. So it may or may not happen. Let's say it did, then there's a resource consideration. I think to adopt operator sampling sample for sample, and I don't want to be held to these numbers exactly, but a good ballpark figure would be that Coal Mine Safety and Health would need an additional 200 inspectors and probably with salary and equipment probably $20 million. Now, the agency may or may not be able to obtain those funds. I can tell it took the Assistant Secretary three years to get 90 additional positions to go to bimonthly sampling. So to take this back and risk losing the improvements, I mean that's, I think those are practical hurdles that the agency would have to overcome. MR. MAIN: I've looked at this thing long and hard since the proposal come out in the last, what, 32 days. And I tried to think as deep as I could to where we're at. And I keep going back to the recommendations of the Advisory Committee which I think was pretty straightforward. What it sought to do is to have the agency and the operators beef up their sampling and dust control actions. And at the point when MSHA was prepared to do that to take over the operator program. And look at the funding mechanism which that's the question I've got is like what kind of research and work did the government really do to figure out a way to fund this thing beyond the taxpayers because that was a clear recommendation of the committee? We're going to be taking another look at that. But to get themself in the position to take this whole thing over. There is a concept that is embodied I think in the Federal Advisory Committee report that called for an MSHA takeover with a quality sampling program, with a mine operator still responsible for doing plan verification sampling, with increased involvement in several different areas of the miners to get them in a position that they've strived to get for years and totally deserve, and to have continuous dust monitoring as part of this whole scheme. And a problem that we find is we ordered the car. We've got the damn thing. It hasn't got the engine in it yet or the transmission in it yet. It's got the engine in it but the diagnostic light that tells you, you know, the oil is low is sort of not there yet. You know, just we don't have a whole car yet. And putting this thing on the road as you've laid out that car is not going to run well in our opinion. And we need to go back and take the time and get it done right. And, Marvin, you know, being the realist that I am I know two things: if there is an interest on the part of this government to fix this problem you will come back with a proposal. If the interest of the government is to let the thing lay there then, you know, I think it's going to take a public outcry to force that to happen. But once you do something, if you look historically I think, and being fair to all these miners, you know, let's do not promise one more thing that can't be delivered on. I am not going to do that in my mind. I'm not going to promise them that something will happen if they go to another hearing. I've learned my lesson on that. But I think we need to be fair here. And I think the government needs to step up to the plate, set back down, do a reform package that works, that takes care of all these issues and get them out there. And I think that's the same thing that I'm hearing, you know, from the industry as well is that this, this thing is so murky with what we have that it's hard for people to understand. It has a lot of shortcomings in it. And we need to just get this thing done and get it beyond us or get beyond it. MR. NICHOLS: Okay, thanks, Jim. And we'll hear from the industry next. But let's take a 10-minute break and then Bruce Watzman will be on next. (Brief recess.) MR. NICHOLS: Okay, let's get started back. The next presenter will be Bruce Watzman with the National Mining Association. Bruce, go ahead. STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH, NATIONAL MINING ASSOCIATION MR. WATZMAN: Thank you, Marvin, and members of the panel. As Marvin said, I am Bruce Watzman, Vice President for Safety and Health with the National Mining Association. As most if not all of you area aware, NMA and its predecessor organizations, the National Coal Association and the American Mining Congress, have a long history participating in MSHA regulatory proceedings. We have and continue to work with both of the agencies represented to further the dramatic improvements that have been attained in miner safety and health. While more needs to be done, we must recognize the role that miners, your agency and mine operators played in achieving the striking reductions in fatalities and accidents and injuries that have occured. At the same time we must recognize the dramatic changes that have occurred and continue to occur in the coal industry. Consolidation and closures have become increasingly commonplace as MSHA's own statistics point to the monumental reduction in both the number of operating mines and miners. As we began our review of the pending proposals we employed two tests: First, would the proposed revisions restore confidence in the dust sampling program? and Second, would the proposed revisions after all was said and done improve miners' health? Regrettably, we have concluded that the proposal fail both of these tests. Approximately two weeks ago we wrote to the Assistant Secretary requesting a 120-day extension of the period to submit comments on these proposals. The Assistant Secretary, pointing to the industry's presumed familiarity with the proposals and the pending writ of mandamus filed by the UMWA, granted a 14-day extension. This extension, while appreciated is nonetheless woefully inadequate. It must be remembered that the agency has had this matter under consideration for several years yet the regulated community is afforded merely 60 days to comment on the hundreds if not thousands of pages contained in the rulemaking record. Throughout the three public hearings the agency have conducted miner after miner has pointed to the inadequate time provided to read and fully comprehend what many consider to be the most significant proceeding to impact the underground coal industry since passage of the Act, yet the agency granted only a 14-day extension. Throughout the public hearings that the agencies have conducted miner after miner has pointed to the difficulty understanding the proposal given the new, plain English format. Yet the agency has done little to address those concerns. The industry has long sought performance rather than prescriptive regulations, yet the proposals are in their current form neither. They are too subjective and too open-ended to numerous and ever-changing interpretations. We take little comfort knowing that MSHA will develop and issue policy guidance documents to supplement a final rule. As you are aware, we have historically opposed the agency's attempts to regulate through policy. We will continue to do so should this be finalized in its current form. Revisions to health inspection manuals cannot take the place of regulation. Representations in the preamble cannot substitute for regulatory language. As numerous court decisions arising under the Mine Act and other federal statutes have found, an agency is not bound by policy statements. And those who rely on such statements do so at their own peril. The D.C. Circuit Court's decision in the Cathedral Bluffs case is a perfect example of that principle. In this case the company cited to an MSHA policy statement as support for their position. The Court held that policy does not have the same force and effect as the law or regulations and ruled against Cathedral Bluffs. The subject, open-ended nature of the proposals leads us to conclude that it will do little to restore confidence in the dust sampling program and may well exacerbate an already difficult situation. And I would say that the colloquy that took place earlier between members of the panel and Joe Main did little to soothe my concerns.? I would be remiss, however, if I did not recognize that many of the changes contained in the proposal have long been sought by the industry. We support MSHA assuming responsibility for compliance and abatement sampling. Similarly, we support MSHA's recognition at long last that supplied air helmets can and must play a role in protecting a miner's health. We do not believe their application should be restricted in the manner proposed and will provide additional comments on this point prior to the close of the comment period. These provisions notwithstanding, we share the miners' belief that the proposal should be withdrawn. We're at a critical time in the continuum of respirable dust sampling. Our cooperative efforts have us on the verge of introducing new technology that will enable miners to know on a real time basis their individual dust exposure. No longer will we have to rely on subjective sampling technology or argue about laboratory variability, precision or accuracy. No longer will we have to await days to get the results of sampling. Rather, miners will be empowered with the knowledge required to prevent exposure to dust above permissible levels. Rather than committing resources to apply bandaids to an antiquated dust sampling system, our collective resources should be committed to advancing engineering controls. Our collective resources at that point will be committed to advancing engineering controls to reduce dust generation and exposure. Quite simply, the respirable dust standards as we know them today, either in their current form or as MSHA seeks to revise them, will become obsolete. We must not, we cannot allow ourself to brand because of an arbitrarily determined regularly schedule the introduction of this technology. Finalization of the current proposals whose benefits are minimal at best must not thwart the development and introduction of this new technology. In 1996 President Clinton campaigned on a platform of a bridge to the 21st Century. Personal continuous readout dust monitors are our bridge to the 21st Century. Our collective interests would be better served by MSHA committing the resources they are using to finalize these regulations to the development, the introduction of personal dust monitors into the mining environment. Thank you. MR. NICHOLS: Thank you. It's long been the position of the industry that MSHA take over the dust sampling program. I know you haven't had time to fully digest all these rules but what would an MSHA takeover look like from an industry point of view? MR. WATZMAN: Marvin, we support, as I said, the MSHA assumption of all compliance and abatement sampling. But when we looked at this proposal we couldn't look at in terms of cherry picking this over here and this over here, we looked at the proposal as a whole. We looked at it in terms of our historic position in opposition to the use of single shift samples for compliance purposes today given the current state of the technology we use for dust sampling. On more than one occasion the National Mining Association and the Bituminous Coal Operators Association has written to the Assistant Secretary. We outlined through those letters what we believed would be the elements of a new dust sampling program. We believe taken as a whole it would improve the situation that exists today. The current proposal doesn't embrace all of that. We tied the use of single shift sampling to the availability, commercial availability of a commercial readout continuous dust monitor. So while we support, as I said earlier, MSHA assuming compliance dust sampling, we're not going to allow ourselves to be put in the position of looking at any individual element of this in a vacuum. We have to look at in terms of the whole proposal that's before us. MR. SCHELL: Bruce, is the industry's position that we're in a posture where we can move forward with requiring continuous monitoring rulemaking at this point? MR. WATZMAN: No, it's not, Ron. As you know, the technology is not there today. We believe we're very close. We believe that we've overcome some of the roadblocks that have been put before us. As you know, the industry, both the industry and the miners when we started talking about a personal continuous dust monitor recommended one particular prototype. The agency, MSHA, chose to go a different direction. Even though the stakeholders recommended the development of one prototype. NIOSH has picked up the ball on the other prototype. And that set us back some time. But from what we understand we're closer than we've ever been and we think everyone's interest would be better served by awaiting the test results of the prototypes. If they work as we all hope and believe they will work then we're all going to be better off, the miners are going to be better off down the road. We're not going to be dealing with gravimetric sampling. We're not going to be fighting with Tom over laboratory weighing systems and over precision and reliability, we're going to empower miners to know the dust they're exposed to at that particular moment so that remedial actions can be taken to lower those dust levels, not a week later, not five days later, not three days later, but when the overexposures occur. MR. HEWETT: May I ask a question regarding those overexposures? MR. WATZMAN: Sure. MR. HEWETT: I'm with NIOSH so I have somewhat of an interest in the continuous dust monitors. A dust monitor during a shift could give you two pieces of information: 1) at that particular moment the concentration is above whatever standard there is; 2) that given cumulative exposure up to that point the end of shift exposure is likely to be above the standard. What does industry -- what would industry want the section foreman to do if the concentration at that moment's above the standard and what would the industry want the section foreman to do if the end of shift projection is above the standard? MR. WATZMAN: I think you're a little ahead of where the discussions are. However, having said that I think there are a multitude of options that might be available to the section foreman. He could at that time review the engineering controls that are in place to see if all the water sprays are operating as one would hope. He can check the ventilation. He can make the determination to employe administrative control to remove that individual so that their end of shift exposure is not above the allowable level. But the fact is is that that's a determination and those are actions that can be taken at that point rather than having this compliance determination be made at some later point when the overexposure has either continued unaddressed or whether there is not an overexposure. I mean that has been one of the biggest problems we have had with the dust sampling, as you all know, the lag time between when the samples are taken and the ability to take remedial action. That serves no one's interest. Mostly, most importantly it doesn't serve the miner's interest. A continuous readout tool, a continuous personal dust monitor will if it works as we hope provide us the ability to take those actions at that time. MR. HEWETT: If at that time, say halfway through the shift, that particular miner's exposure has according to the direct reading instruments reached and exceeded the current dust standard what should the section foreman do with that miner or over the section in general? MR. WATZMAN: I think I just answered that. I mean my response was he can review the engineering controls that are currently employed making sure that they're all operating at optimum levels. MR. HEWETT: This question is different. I understand you're repeating your earlier answer. The question is -- MR. WATZMAN: That's because I think you're repeating your earlier question and I thought I responded to it. MR. HEWETT: Thank you. MR. NICHOLS: We've had a lot of testimony in the two previous hearings about this policy versus the rule mostly, I think, as it relates to the sampling requirements from MSHA. If that were tightened up and further explained or consideration that it be put in the rule, would that move you any closer to favoring these rules? MR. WATZMAN: I don't know, Marvin, because I think it would require a fundamental re-writing of the rules. One of the responses that was given to a miner's question, I think it was at the Morgantown hearing, was we're rewriting the -- we're currently rewriting chapter 1 of the health inspection manual and we'll address that in that rewrite. That's not the way regulations are written in our mind. We can't -- those are rewritten, they're written by this current administration, they'll be written by another administration, they'll be rewritten by, reviewed by another assistant secretary down the road. You know, I guess one of the discomforts we have, and I understand the move and we're supportive of the move to write regulations in plain English, but I guess one of the questions that was asked in the preamble was What are your views on the new format we've taken? And it is in writing these regulations a question and answer format as opposed to what was fairly black and white historically. And I think it is such a dramatic movement of the pendulum away from what we're accustomed to that it has raised as many questions as it has answered. I will tell you that I sat in a meeting of industry representatives who deal with dust control plans, who deal with ventilation, and there were numerous interpretations given to various sections here by people who have dealt with this for years and years as to what that really meant in terms of agency enforcement policy. It's extremely difficult, given that, to respond in a concrete manner. MR. SCHELL: Can I? MR. NICHOLS: Go ahead. MR. SCHELL: Bruce, one of the -- I think we'd all like to be where you are and have a continuous monitoring. But one of the things that's motivating us, and we talked about it here, is we do continue to have miners that are overexposed above the 2 milligram level. And we put up the chart that shows what happens with averaging. Single sample was meant to address that. Plan verification, I know on discussions that we've had earlier on the rule we all agreed that even if you have continuous monitoring you're going to need to continue to have plans where our proposal was attempt to develop quality plans. But the thrust being, and the Advisory Committee addressed this too, we have got to find some way to eliminate these excursions above the standard that overexposed people. And to say go back and start again, another way of saying that is to continue to have miners overexposed until we get that. I'd be interested in specifically what the industry's views are on the plan verification approach that we've taken. I think I know what it is on single sample, but if you want to comment on that I'd appreciate hearing that. MR. WATZMAN: Ron, we're going to submit detailed comments by the close of the rulemaking. I will tell you that I'm in the process, we're in the process right now of drafting them. What we are going to attempt to do, having said that we believe that this should be withdrawn, we feel we have an obligation to respond in detail to the proposal which we will do. So we will submit to the best we can, and I have to preface it by saying given the manner in which it's written we're going to do the best we can to try to provide you with revised regulatory language even though we're struggling with the regulatory language as it's written. But we're going to do that. And I'm really just not prepared to go through it section by section at this point. I mean I've said that we support MSHA assuming all sampling. We are pleased that the agency has recognized for the first time the use of air helmets where we have exhausted engineering controls. We think what you have proposed is far too restrictive. We think there are applications where the same criteria used for longwall permission may very well apply to other situations as well, probably not as broad in nature, probably not as frequent, but we think it's wrong to exclude the use of so valuable a tool through these regulations because, you know, we probably won't have the opportunity to revisit this again. You know, there are times on continuous miner sections where we may very well need this tool. And we think it is wrong for the regulation as it's written to preclude that application at all. You know, in many ways this is kind of tantamount to what the agency has finalized and is about to implement in terms of noise controls. You know, you didn't limit the application of personal protection in terms of noise controls. There is the pea coat theory, the pea coat concept and practice where once an operator has exhausted to the agency's satisfaction the availability of engineering controls then there must be a means to protect the miner. Because that's the overall objective that we're all striving to get to. If we can get there through engineering controls, far the better. We all support that. But where we can't, the objective at the end of the day has to be protecting the miner's health. Why the agency chose in dust to limit so dramatically the application of a protective, the use of a protective device so dramatically in terms of dust but didn't do so in noise is something that quite honestly we're trying to understand. We think it's the wrong approach. So these are some of the issues that we'll get into in more detail in our written comments. MR. NICHOLS: Well, I think the experience with dust control is that in all areas except one, and that's working downwind of the shear operator, that controls have been demonstrated that will work and engineer away the problem. With noise that's not the case. But we don't have that history of compliance with the noise rule like we do the dust rule. The key is not so much that a control does not exist to control dust in all other areas of the mine, is that the controls are not maintained. MR. WATZMAN: Marvin, as a general statement I'd say you're probably correct. But I don't think you can generalize across all mines and all mining systems and all mining applications. Every mine is different. I mean we have to accept that. At times mines have to do things that are different than the traditional practices in mines. To say that we're not going to protect miners because we've excluded the use of a protective device in those situations to us is just ill advised. You know, maybe your statement is right generally, but we think that you shouldn't exclude it, make a rubber stamp exclusion and say we're only going to provide the use, allow the use in this very limited application. I would argue with you that you've restricted it to such a degree that you're probably not going to see the use of supplied air helmets given how dramatically you've restricted it. And if that's what the agency's objective is, was through this, well, then I think that we may well say that you've accomplished what you've set out to achieve. But we just think it's the wrong approach to take. MR. NICHOLS: Tell me again why you're opposed to single shift? MR. WATZMAN: We don't think that the agency -- and I will prepare myself for the salvo from Paul Hewett and Jon Kogut and others. MR. NICHOLS: We'll protect you. MR. WATZMAN: Please protect me. We don't think that the agency, and I must say one of the things you've done that has made this easier for me personally is taking all of the comments from the single sample, the previous single sample proceeding and made them a part of this rulemaking. It makes my task a lot easier. We still don't believe that the agency has adequately accounted for all the sources of variability that exist both in the mining environment and the analytic practice, process. And, therefore, that a single shift sample as currently comprised under the scenario that the agency has laid out is flawed. And we will provide additional comments on that. I know that you have added some new studies into the record since the last proceeding. We're looking at those currently and developing some comments. And we'll provide more on that. And I'd just like to leave it at that on that subject for now. MR. NICHOLS: Okay. And we had these two periods where we used single shift in coal. One was maybe '92-'93 and then up until the Court of Appeals. Do you have any knowledge of any great burden that put on the coal industry during those two periods? MR. WATZMAN: No. I have no information about that period. MR. NICHOLS: Okay. Does the industry agree with this averaging scheme that will allow a couple miners to be over, three to be under, and at the end of the day all five are under? MR. WATZMAN: Marvin, we don't want to see any miner overexposed. Our objective has been and will always be to maintain dust levels below the applicable standard. However, I think we have to recognize that there's somewhat of a difference in view between the agency and the industry in this regard. Dust is a chronic exposure. The standard was predicated on the belief that a miner exposed eight hours a day, five days a week for a normal 45-year working career would not develop coal worker's pneumoconiosis. As far as I know, and correct me please if I'm wrong, there is no agency or independent body yet who has -- and I would say domestic because I'm not that familiar with international, but as far as I know and the last I checked there is no body that has recommended a short-term exposure limit for exposure to coal dust. Am I -- Go ahead, Ron, what was that? MR. SCHELL: Yeah, I think the Congress did. I mean the law -- MR. WATZMAN: The law is eight hours, 2 milligrams. MR. SCHELL: No, the law is that no miner should be exposed to more than 2 milligrams on any shift. That's the law. We constantly get into this debate about the long- term exposure versus the short-term exposure. But I'm telling you the law says on any shift, it doesn't say over a period of time. MR. WATZMAN: I will leave it to your lawyers and our lawyers to argue over what the law says and what the Congress intended. I'm not going to get into that debate. I don't think it's -- I don't think it furthers anything. All I'm saying is is that we view this differently than the agency does. I was trying to respond to Marvin's question and present the difference in how we view this as opposed to the agency. Do we want to see any miner overexposed? Absolutely not. Do we want to have the availability to use every single tool to prevent that occurring, from occurring? Absolutely, we do. That's why we support and are glad that with -- that to the limited degree you had you've recognized the use of supplied air helmets. Do we want to get to the point where miners know on a real time basis what the exposures are? Absolutely. The industry has committed to work with the agency, with NIOSH. As soon as the prototypes are available for taking underground, much like we provided mines to work on the continuous machine-mounted monitor, we will make the mines available to test the personal readout continuous dust monitor. And we're just looking forward to that day. MR. NICHOLS: What would be your best guess as to how long it would take to develop that technology? MR. WATZMAN: I think there are people who are far better equipped than I am to respond. MR. NICHOLS: Just a guess? MR. WATZMAN: I don't know, Marvin. And I'm not going to venture a guess that someone's going to say, boy, have you underestimated it or are you out to lunch? I mean maybe Dr. Grayson has a better sense of that sine NIOSH is one of the agencies working toward the development of that. MR. NICHOLS: But we're not talking months, we're probably talking years? MR. WATZMAN: I don't -- MR. GRAYSON: I would say quite likely it won't be months because in any research project there are bugs that have to be removed and iterative steps. And, you know, we want to move it along as quickly as possible. MR. WATZMAN: As do we. MR. GRAYSON: But we have to see indeed that it does work. One question of clarification if I may, Bruce. I'm wondering if you are including in your definition of sources of error spatial variability of the dust cloud or not? MR. WATZMAN: Yes. MR. GRAYSON: You are? MR. WATZMAN: Yeah. And I know we disagree. And I will accept that we have a disagreement on that. MR. HEWETT: Maybe I can comment on that a little bit further for the benefit of the audience although I know that we disagree. Won't be much of a resolution of that. But in this debate between lawyers, your lawyers, the government lawyers regarding specific interpretations of the '69 and later the '77 Coal Mine Safety and Health Act I do hope ours prevail. Not as a lawyer, I read it and look at the plain language in it and it clearly indicates that there is a phased-in period incurred in reductions of exposures with the goal of reaching a single shift measurement and a 2 milligram standard. I want to point out that at the time of the '69 Act the only standards of exposure limits in the U.S. were those recommended by the American Congress of Industrial Hygienists, the TLVs. Those then and not were single shift limits. Regardless of whether the eight -- or if it was defined as an 8-hour limit that could be for chronic disease eight, it could be something that manifests its effect over an 8-hour period. For those that have short-term limits you probably want something that has an instant, almost instantaneous effect. Coal dust standard implemented by, promulgated or recommended by the TLV committee was a single shift limit. the OSHA limits have always been single shift limits. There is nothing wrong with a single shift limit producing control and exposure to something that's nominally a chronic disease agent. And that has been the case since the inception of the TLVs, since the '50s, '60s, up to today. And so there is nothing inconsistent with what MSHA is trying to do with the coal dust standard as required by Congress in '69. So I just want to point that out that single shift limits have been used for along time. The agency draft recommends no long-term standards. OSHA recommends no long- term standards. NIOSH I think for radon gas that's the only long-term standard we have. But all the others are single shift limits. Even if you have a chronic disease agent you have to control on a day to day basis. That's why you have an 8-hour limit. The Europeans use it, the British use it, every industrialized nation in the world with the exception of a few on a few substances, like vinyl fluoride in Europe, use single shift limits. So there's only a few people out in left field on this issue. And I'll leave it up to you to figure out who they are. MR. NICHOLS: Well, plus a good chunk of your constituents are subject to it. The metal and non-metal folks have used single shift since I started with them in 1971. And we were using single shift in 1971, so a good number of operators you represent live with this in the metal and non-metal industry. MR. WATZMAN: Regrettably, we haven't prevailed in court to overturn that for the metal/non-metal sector yet. MR. SCHELL: Bruce, and you may want to answer these just in terms of understanding where you're coming from on continuous monitoring. The way I interpreted your view is that you would see continuous monitors as something that would be used daily or on each shift. And would you see it being used for compliance purposes? Have you talked about that? MR. WATZMAN: We haven't talked about that, Ron. And I think you're probably getting a little ahead of the game in terms of elements of a protocol as to how these would be used in the mines. I mean we haven't gotten that far along. You know, we didn't in terms of the continuous machine mounted, although we were further along in that one. We're clearly not that far along in terms of it on this as to whether, you know, what miners, what applications, what frequency. I mean we just haven't had those discussions. And, you know, I'm sure we will have those discussions with you and representatives of the miners as this proceeds. MR. SCHELL: And if I come back and ask a question again, you've answered it and that may be it, I was just looking for a feel of this panel. Plan verification is a key. And there were some key elements of it, plan verified at high level of production, plan verified using only the parameters listed in the plan, plan verification over the entire shift. Can you give us a sense of where the industry is coming out on this at this point, Bruce? MR. WATZMAN: No, I can't, other than as I said previously, we'll provide some detailed written comments on those elements. You know, where we think that it is appropriate that the provisions be revised we'll provide suggested language. MR. NICHOLS: We've got a list of questions we want to ask about the airstream helmets and other protective devices. Who is the best one to ask these two of the industry, you or? MR. WATZMAN: I'm missing what you're getting at, Marvin? MR. NICHOLS: Well, generally we've had a lot of testimony that they're too heavy, they don't work, they fog up. Miners use rags and whatever for filters. And are you aware of any major problems with the airstream helmets currently i