U. S. DEPARTMENT OF LABOR } OFFICE OF STANDARDS, REGULATIONS AND VARIANCES } MINE SAFETY AND HEALTH ADMINISTRATION } AB14-HEAR-TRANSCRIPT-1SS Pages: 1 through 271 AB14-HEAR-TRANSCRIPT-1PV Place: Washington, PA Date: May 6, 2003 BEFORE THE DEPARTMENT OF LABOR U. S. DEPARTMENT OF LABOR } OFFICE OF STANDARDS, REGULATIONS AND VARIANCES } MINE SAFETY AND HEALTH ADMINISTRATION } MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) SINGLE SAMPLE/PLAN VERIFICATION PUBLIC HEARING PUBLIC HEARING Holiday Inn at the Meadows 340 Racetrack Road Fireside Room Washington, PA Tuesday, May 6, 2003 U.S. DEPARTMENT OF LABOR MAY 2003 MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) SINGLE SAMPLE/PLAN VERIFICATION PUBLIC HEARING HEARING PANEL MEMBERS 1. MODERATOR MARVIN NICHOLS, Director, MSHA Office of Standards, Regulations and Variances 2. BOB THAXTON Committee Chair and Technical Advisor, MSHA Division of Coal Mine Safety and Health 3. LARRY REYNOLDS Attorney, MSHA Office of the Solicitor 4. GEORGE NIEWIADOMSKI Mine Safety and Health Specialist MSHA Division of Coal Mine Safety and Health 5. JON KOGUT Mathematical Statistician, MSHA Division of Program Evaluation, Information Resources 6. RON FORD Economist, MSHA Office of Standards, Regulations and Variances 7. PAMELA KING Regulatory Specialist, MSHA Office of Standards, Regulations and Variances 8. DR. LEW WADE Associate Director of Mining Research, National Institute for Occupational Safety and Health (NIOSH) 9. FRANK HEARL Senior Advisor, Office of the Director (NIOSH) P R O C E E D I N G S (8:30 a.m.) MR. NICHOLS: Okay. Can you hear me in the back? You can't hear? Can you hear me now? Okay, good. Are we on the record? Okay. I want to thank you folks for being patient. I think we misled our court reporter on the starting time. We normally start the public hearings at 9 o'clock, but we anticipated a full day today, so we wanted to start all of our dust hearings at 8:00 a.m., so we're at 8:30, so we're earlier than normal, but we will try to start the remaining five hearings at 8 o'clock sharp. My name is Marvin Nichols, and I'm the director of the office of standards for MSHA, and I'll be the moderator for today's public hearing. On behalf of assistant secretary Dave Lauriski, for MSHA and Dr. John Howard, director of NIOSH, we want to welcome all of you here today. Today's public hearing is being held to receive your comments on two related MSHA regulatory actions. First, we have reopened the record for comment on the joint MSHA/NIOSH single sample proposed rule that was originally published on July 7, 2000. Second, we have reproprosed the plan verification rule. It was published in the Federal Register on March 6, 2003. Your comments today will be included in the record for both proposed rules. The two proposed rules are based upon the 1996 recommendations of the Secretary of Labor's advisory committee on the elimination of pneumoconiosis, and the comments received in response to the previous proposed rule published in 2000. These rules are intended to eliminate black lung and silicosis by eliminating minor overexposures. They completely change the federal program for controlling, detecting, and sampling respirable dust in coal mines. The emphasis of the new program will be on verified engineering controls, so that miners are protected on every shift. Let me now introduce the panel. To my right, from NIOSH, and representing the Centers for Disease Control and Prevention are Dr. Lew Wade, associate director of mining research; Frank Hearl, senior advisor in the office of the director. Frank and Lew join us because a single sample rule is a joint effort between MSHA and NIOSH. And at the end of the table is John Kogut, mathematical statistician, office of program policy and evaluation with MSHA; to my left is Bob Thaxton, the technical advisor in Coal Mine Safety and Health; next to Bob is Larry Reynolds, office of the solicitor; and at the end of the table is George Niewiadomski, mine safety and health specialist, Coal Mine Safety and Health. We also have Pam King from my office at our sign- in desk, and if you've not yet signed in, we would like for you to do that, to get an accurate representation of the number of people attending. And also, if you wish to speak, I have a sign-up sheet up here, but there's another one in the back, so just start a new one. If you haven't already signed in and you wish to speak, please do that. Let me first mention how today's hearings will be conducted. As with all of our hearings, the formal rules of evidence do not apply at these hearings, and the hearings will be 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 the questions regarding these rules be made on the public records, and that you refrain from asking panel members when we're not in session. The reason we do this is that we want to get all the discussion of these rules on the record. Following the completion of my opening statement, Bob Thaxton will give an overview of the new proposed plan verification rule. Following Bob's presentation, we'll take a short break, and then we'll start receiving your comments. A verbatim transcript of this hearing is being taken, and it will be made available as part of the official record. Please submit any overheads, slides, tapes, and copies of your presentations to me, so that these items may be made part of the record. The hearing transcript, along with all comments that MSHA has received to date on the proposed rule, will be available for review. We intend to post a copy of the transcript on the MSHA web page at WWW.MSHA.Gov. If you wish to obtain a copy of the hearing transcript before then, you should make your own arrangements with the court reporter. We are also accepting written comments and data from any interested party, including those who do not speak here today. You can give written comments to me during the hearing, or send them to the address listed in the hearing notice. If you wish to present any written statements or information for the record today, please clearly identify them. All written comments and data submitted to MSHA will be included in the official record, and an attendance sheet, I've already mentioned, is in the back. Due to the requests from the mining community, the Agency will extend the posthearing comment period for the plan verification proposal from June the 4th to July 3, 2003. The notice announcing the extension will be published in the Federal Register this week. We also anticipate extending the comment period for single sample, but that decision will only be made after a consultation with NIOSH, since it's a joint rule between MSHA and NIOSH. As you know, we have scheduled five additional public hearings on the two proposed rules. The additional hearings will be in Charleston, West Virginia, on May the 8th; in Evansville, Indiana, on May the 13th; in Lexington, Kentucky, on May the 15th; in Birmingham, Alabama, on May the 20th; and in Grand Junction, Colorado, on May the 22nd. As I mentioned earlier, we plan to start all the hearings at 8:00 a.m., and we'll end the hearings when the last scheduled speaker speaks. Before we begin, let me give you some background on the two proposed rules. First, the single sample proposed rule, which was originally published on July 7, 2000, would allow MSHA to make compliance determinations on single-sample results. The Agency would no longer use the averaging method to determine if miners are overexposed to respirable dust. Averaging these samples can mask individual overexposures by diluting a high sample with a lower concentration taken on another shift. Using single-sample measurements, rather than averaging multiple samples, for compliance purposes, will better protect miners' health. Since samples can identify and remedy excessive dust concentrations more quickly. Single-sample measurements have been used for many years by OSHA, and at metal and nonmetal mines in this country. MSHA AND NIOSH are jointly reopening the rulemaking record for this proposed rule, to provide an opportunity for you to comment on the new information in the record concerning MSHA's current enforcement policy, the health effects, quantitative risk assessment, technological and economic feasibility, and compliance costs, which has been added since July 2000. For example, we updated the preamble to include the most recent information on the prevalence on coal mine workers pneumoconiosis or CWP, or black lung examined under the miners choice program during the period 2000 through 2002. These findings show that miners continue to be at risk of develop CWP under the current dust control program. The quantitative risk assessment is based on additional and more recent data. None of the new information changes the actual findings published in the Federal Register on July 7, 2000. The single-sample issue has been through a long public process, which is outlined in the preamble to the proposed rule. The second regulatory action is the reproposed plan verification rule. This proposed rule supersedes the one published on July 7, 2000. MSHA held three public hearings on the prevented proposed rule here in August of 2000. Many commenters urged the Agency to withdraw the earlier proposed rule and go back to the drawing board. Some commenters believe that MSHA had failed to adequately address their concerns, the reforms in the Federal Dust Program recommended by the Dust Advisory Committee, by NIOSH in its criteria document, and reforms urged by coalminers submitted in the 1970s. After carefully considering all the facts, issues and concerns expressed by commenters, MSHA is proposing a new rule in response to the comments made to the July 7, 2000, proposed rule. And as I mentioned earlier, Bob Thaxton will now give us an overview of the new plan verification rule. And also, as I mentioned earlier, we'll give Bob's presentation on the screen, and then we'll take a short break, and then we'll start receiving comments. MR. THAXTON: Okay. Can everybody hear me okay? What we'd like to do is, walk through real quick a briefing on both the single-sample and plan verification rules. It's combined, because it's a package. So what we'll do is walk through. This package consists of two rules. The significance of the two rules is that, one, it develops effective plans, and it has two components, that is, that were involved in the control of dust, as well as monitoring that effectiveness of those controls. Under single-sample, the single-sample rule comes out with a new finding that says that the average concentration can be accurately measured over a single shift. That's different from what we've had in the past. This rescinds the 1972 finding on the accuracy of a single shift. That '72 finding said that we should be using the average of multiple samples. Lastly, the single sample does have a standard that says that the secretary may use single, full-shift measurements to make the determination of the average concentration that a person's exposed to over the shift that we measure. Under plan verification, each underground mine operator must have a verified ventilation plan for dust controls. He must also have a plan that would be verified under actual mining conditions by operator samples. MSHA will assume the responsibility for compliance and abatement sampling in underground coalmines, and only underground coalmines. This rule does not affect surface mines. MSHA samples will be used to set reduced standards, due to the quartz. There will be no more operator optional samples or bimonthly samples used to set the standards. Under the verification of the plan, to get a better understanding of what's changed, we're doing a comparison of what we currently do under the current regs versus what this proposal incorporates. Under current conditions, MSHA sampling is used to approve a plan. The plan is approved based on the average of multiple samples. At the very least, MSHA took five samples on five different occupations over a shift, four multiple samples over multiple shifts. The samples were full shift, eight hours or less, portal to portal, and they were collected at 60 percent of average production. The 2003 proposed rule shifts that the operator will sample to verify the effectiveness of the plans at underground mines. It does not affect the plans that are approved at surface mines. The sampling that will be conducted will be full-shift samples, production time. That is, the samples will be turned on when you enter onto an MMU. They will be turned off when the miners leave the MMU. MMU being a mechanized mining unit. They will be sampled at higher-than-average production, and we'll go into how high the production level will be a little later. There are separate quartz and coal mine dust verification limits. We look at each one separately on each operator sample submitted. It also permits the use of PAPRs or administrative controls on any mining unit, only as a supplemental measure after exhausting feasible engineering controls. What's in the plan? Under the current rule, MSHA sampling is conducted at 60 percent of the average production, and there are no records of production required to be maintained. So that 60 percent is usually determined by just talking with people, the inspector trying to figure out what's been the average. Then he calculates what 60 percent of that is, and that's what the samples are taken at. If it meets that, they're considered valid. Under the 2003 proposed rule, we will require the 10th highest production level to verify a plan effectiveness. It also requires the recording of the production, and maintaining those records for six months. Those records will be recorded for each shift, and it's raw tonnage. That is, no matter what type of material is made, it is mined, whether it's rock or coal or something else, it has to be recorded as total tonnage. What is the 10th highest production? This chart is a sample of what we're talking about. This is production represented for 30 different shifts on an actual long wall out of district three. That's our Morgantown office. If we did what we're doing right now, MSHA collects samples at 60 percent of average. Well, the average production was 6,295 tons. 60 percent of average brings us down here to just over 3,500 tons. So MSHA would collect samples at this level, and say that they are valid under current policies and procedures. Operator samples that are collected bimonthly are only at 50 percent. We were asked in the past to move this up to 90 percent of average. Well, you can see that 90 percent of average is still less than the average, naturally, of what the MMU is producing. What we're pushing in this particular proposal is the 10th highest, which pushes us up to the 67th percentile. What that means is that two-thirds of the shifts are going to be less than the 10th highest, one-third of the shifts will be higher. So you're taking samples at a production level that represents a relatively high production for that MMU, and represents more closely to what the maximum that people would be exposed to. Use of PAPRs, or powered air purifying respirators. Under the current rule, PAPRs or respiratory protection can be used. Under 72-700, if people follow the -- if operator follow the protection program that's listed there, and they provide people with respiratory protection. It can result in a citation that's being issued for overexposure being designated as non-S&S. That is, that the protection provided by the respirators under a respiratory protection program will lend themselves to say that being are being protected enough that you would not class this citation as significant as substantial, in that you have some reason to believe that the people were protected to some degree, at a lower level than what's represented by the samples. Under the 2003 proposed rule, it permits the use when all feasible engineering controls have been exhausted. That is a determination that's made by the Agency as to when feasible engineering controls have been exhausted. So we will be making that determination, based on the information that's available for each individual MMU. Only loose-fitting powered respirators with MSHA and NIOSH approval may be used. At this time there is only one unit that meets that criteria, and that is the Racal 3M Airstream helmet. You must provide a respiratory protection program as part of the approved ventilation plan. The approved plan will incorporate all the provisions of a respiratory protection program into that approved plan. It becomes the regulation or law for that particular mine and that particular MMU. Failure to follow any portion of it can result in violations. It must maintain dust levels as low as possible with feasible engineering controls. When we come in and an operator determines that, I've done all I could, I can't do anything else, if the Agency comes in and says, we agree, you've put in all feasible engineering controls that are possible. All feasible engineering controls are capable of getting the MMU down to, say, 2.5 or 2.8 milligrams. They would be expected to maintain the 2.5 or 2.8. Whatever level that they could get to, it has to be maintained, and then the respiratory protection program would be supplemental to that. So we are not allowing operators to remove engineering controls, just because they put a respiratory protection program in. They must maintain all controls that are considered feasible for that particular MMU, and maintain the dust levels as low as possible with all the controls that are available. There will be a protection factor assigned between 2 to 4, depending on the ventilating air velocity, assigned to the mining section. We're not assigning protection factors to the particular respirator. We're taking the stance that we're assigning the protection factor based on where the units are used. The protection factors that we're assigning to these particular units are depending on the face velocity -- the amount of air that's blowing past the respirator. So we take that into account. And so that protection factor is actually assigned to the MMU, and is specified in the approved plan. If a protection factor of four is used, the protection factor of 4 is used, the protection factor of 4 indicates that the air being breathed by the miner is one- fourth the concentration of the air outside the PAPR. That's all that means. The sampling requirements. Under the current requirements, operators collect bimonthly sampling at underground mines. And like I said, this only applies to the underground portion of the mining industry. Citations are issued for failure to submit required samples. Citations are also issued for exceeding the applicable standard. Operators collect abatement samples to determine compliance after citations are issued. So it depends on the operator for determining whether an abatement has been accomplished or not. MSHA quarterly sampling is conducted on MMUs, section DAs, and Part 90 miners under current procedures. We issue citations for exceeding the applicable standard based on the average of multiple samples taken by MSHA. And currently that requires five consecutive days or five consecutive shifts on our part to get five samples, in order to average to determine noncompliance at this time. Under the 2003 proposal, the operator will be collecting plan verification samples for the initial approval, and then designated MMUs will collect one sample each quarter, for continued confirmation of the control's effectiveness. And what that means is that the operators will be collecting anywhere from one to five samples to verify their plan, and they have to verify at two different levels -- respirable dust and quartz -- separately. If they meet certain criteria, they may also be required to submit a sample once each quarter, to show that their plan continues to be effective. There are no citations issued for exceeding the applicable standard, based on those samples. We're in the process of trying to verify the plan's effectiveness, and how effective those controls are. We're not using those samples to determine compliance with the 2-milligram standard. Even though we're not issuing citations for exceeding the applicable standard, the operator must take action to reduce the concentration where samples exceed the standard. Failure to take corrective action can be a citation under our regulation -- under the proposed regulation. MSHA collects all samples to determine compliance and abatement of citations. All MSHA determinations will be made an a single full-shift measurement, and citations issued for exceeding the applicable standard. The citation level we'll get into on another slide. Compliance/noncompliance determinations. Under the current rule, the average of multiple samples are used to make compliance/noncompliance determinations at all coal mines. Under the operators program, five samples collected on an MMU -- DA, DWP if there's a high sample -- those five samples' average are required to determine whether there's a citation or not. The average of the five samples in five different shifts. If the average concentration exceeds the applicable standard by one-10th or more, a citation is issued because noncompliance is indicated. Under the 2000 (sic) proposal, we will use single- sample determinations at all coal mines, surface and underground. The single-sample portion of the package applies to both surface and underground mines, and so MSHA will be applying the single-sample determinations on both surface and underground mine operations. As an example, the noncompliance level for somebody on a 2-milligram standard is 2.33. The 2.33 or greater would result in a citation for exceeding the 2 milligram standard. The 2.33 gets the Agency to a 95- percent confidence level that the 2 milligram standard has been exceeded on a single sample. Citation levels that correspond to the 2 milligram and all standards below that are specified in the rule itself. So there is a chart in the rule, whereas the 2000 proposal did not list those. They were only issued as sampling procedures. This time, they are specified in the rules. The odd shift examination of controls. Under the current rule, there is a requirement that at the beginning of each shift, under part 75, the operator has to go through and check all the respirable dust controls that are specified the plan, to see that they are actually working as specified in that plan. If they do not stop production, they hot seat, then it has to be done within the first hour. We have not changed that under the current proposed rule. There is no change in this particular requirement. It maintains that. However, we will be getting plans that we think are more detailed and more involved, so there is going to be a greater impact from doing this beginning-of-the-shift check to make sure those controls are in place and working properly. There is going to be more to that. Miner participation. Under the current rules, miners have a right to accompany, with pay, MSHA personnel during MSHA sampling. Also, operators notify miners representative of plan submission/revisions. They post them on the bulletin board, and the miners rep can submit comments then to the Agency to consider, while that plan is going through approval. Under the 2003 proposed rule on miner participation during operator sampling, the operator is required to notify miners of the date and time prior to verification/quarterly sampling, so that the miners know when this is coming. And it has to be done in advance. The miners must be provided an opportunity to observe that sampling, but there is no guarantee of pay, so it can be done at the miners rep's own desire, as to whether he wants to watch it or not. If the miner that's being sampled is watching it, then he's already sitting there. The sample's in his area, so he can watch it. Miner participation during MSHA sampling. It's the same as current. Miners have the right to accompany MSHA, with pay, during any MSHA sampling, whether it's compliance sampling or abatement sampling, or any other type. The operator notifies the miners reps, again, of plan submissions, posts them on the bulletin board, and the miners rep, again, has the right, as he does now, to submit comments while the Agency is reviewing a plan to determine whether there's any comments that need to be addressed as far as the miners. The use of personal continuous dust monitors, or PCDMs, as most people call them. The current rule. There's no consideration for those types of units. Under the 2003 proposed rule, any unit that the Secretary of Labor approves, with a conversion factor that gets it back to the current gravimetric sample technique can be approved to use under this particular rule. Designated miners must wear, for the full shift, portal to portal. If somebody opts to use PCDMs, then those miners that are designated to wear a PCDM must wear it portal to portal, each and every shift. Permits the operator to use administrative controls without first exhausting engineering controls. Because the PCDMs are monitoring each individual's exposure, it's up to the operator to take those exposure measurements and make adjustments accordingly, to keep people from being overexposed. They can utilize anything that's available to them at that point that can be administratively. No citations for overexposure. Again, this is another reading similar to what the verification samples are, but the operator still may be cited for failure to take action to reduce overexposures. So anytime a PCDM indicates an overexposure, it's the same as any other sample result that the operator would receive that shows overexposure. They have to take corrective action. Failure to take corrective action to lower that can result in a citation. What type of benefits are coming from these particular programs. This rule package, we think, provides plan parameters that reflect actual mining conditions that have been verified at a high production level. No operator- collected samples used to determine compliance. Protection for miners when feasible engineering controls have been exhausted. And it makes provisions for the use of personal continuous dust monitors when they become commercially available. One of the reasons that we're going through this and trying to put out these two new rules is that there will be a reduction in CWP because of it. The projected benefits for the combination of both single-sample and plan verification being put into place is that we will have a net reduction of 42 CWP cases, and they're broken down by DO, which the continuous miner operator; sheer operator or somebody like that; the NDOs, which are the shuttle car operators, bratticemen, miner helpers, those types of people; and then RBs, roof bolters, because of their high exposures to silica. So a total of 42 reduced cases, on our conservative estimate of the date that we have available. As an example of how some of this will work, because in addition to these two rules, the Agency has put on its web page a copy of what we consider our inspection procedures that have been drafted, and if the rules don't change, this is how the Agency would proceed with doing our inspections. So a combination of the information that's in there, how we would do our inspections, along with what's required in the rule, we've come through and prepared a few sampling scenarios that we'd like to walk through. On the first scenario, the operator collects his first verification sample, gets a concentration of 1.6 milligrams of dust, 72 micrograms of quartz on the miner operator; 1.70 milligrams on the roof bolter, with 92 micrograms of quartz. Under the criteria that's in the regs, we cannot verify the plan based on that first shift of samples. The verification critical values for one sample is 1.71 milligrams of respirable dust, and 87 micrograms of quartz. What that does is, it gives us the 95-percent confidence. The same 95-percent confidence we use for writing the violation of 2.33, we apply to the 2 milligram and 100 micrograms of respirable dust in quartz, because on one sample we want to have 95-percent confidence that they are meeting that level to verify the plan. Because you have the one sample that's at 92 micrograms of quartz from the roof bolter, that means that that shift cannot verify the plan. So the operator would be required to collect another sample. The second sample comes in at 1.63 on the miner operator, 71 micrograms of quartz, 1.69 on the roof bolter, and 91 micrograms. Now the Agency says, you have verified your plan based on two samples. The critical values when you have two samples collected moves the respirable dust to 1.85, and moves the quartz up to 93. And what we look at is all samples collected. So all four samples have to be looked at, and none of them can exceed those two limits. If that occurs, then we say we have verified the plan with 95-percent confidence that we have met the 2 milligrams and 100-micrograms standard, so that we can say that the plan will work. Now, we say 100-microgram standard. We don't actually have spelled out in our regulations a 100-microgram standard for quartz. What the regulations call for is a reduction of standards for respirable dust when you exceed 5 percent. 5 percent of 2 milligrams is the equivalent of 100 micrograms. And that's what we apply to each individual quartz reading. So we've got an operator now that has verified the plan based on these concentrations. MSHA comes in and collects its first bimonthly sampling according to our inspection procedures. We sample five different occupations, and we get concentrations that are probably hard for you to see, because it's rather small, of 1.62 on the miner operator, with 78 micrograms of quartz; 1.71 on the miner helper; 1.41 on the shuttle car; 2.38 with 138 micrograms on roof bolter operator number 1; 2.42 and 141 micrograms on roof bolter number 2. Based on that MSHA survey, the operator will receive one citation for the roof bolter occupations, because they exceeded the 2-milligram standard CTV, which is a citation threshold value, and that's where we come up with the 2.33 on 2-milligram standard. They exceeded that 2.33 on the two roof bolter occupations, because both roof bolter occupations are associated with one dust -- source; one roof bolter, two operators, double-head machine. We write one violation, because actions that are taken in that area to reduce the dust will affect both occupations. The operator must take the corrective action, and must notify MSHA within 24 hours of that action being implemented. The reason for that is because the Agency will be the ones that have to come back in and collect the abatement samples. We will either collect abatement samples, or, if we see that there has been a sufficient change in the controls that have been necessary on that section, we may put the operator back into verification of a plan, which would have to be sampled by the operator. MSHA will collect two additional shifts, though, of samples in the next -- it says 30 days here, but this is actually 15 days -- to establish the quartz level and set the appropriate standard. We have a situation of a section where there is no current reduced standard. They're on a 2- milligram standard. We now come in, MSHA collects a sample and says, this entity is exposed to greater than 5-percent quartz, and should be on reduced standard. We don't wait until we get two additional samples, because all quartz analysis is based on the latest three MSHA samples. Rather than wait, because we have an indication of potential overexposure, we schedule to come back and collect two additional shifts of samples within 15 days, so that those samples can be sent in quickly, so that we can get the average of three MSHA samples. And we will set a reduced standard that's appropriate for that particular entity. At the same time, the operator must sample the MMU quarterly, to establish the continued effectiveness of the dust controls in the approved plan. Anytime an operator gets a sample that exceeds the standard, MSHA will designate it then as requiring quarterly sampling, and that the operator then will have to collect a sample once each quarter, and it has to be sampled at the same conditions as what was done for verification. And that sample is submitted to the Agency. We look to see that it still confirms that the plan is effective or not. Sampling scenario two. We're using the same samples up here. The operator collects the first and second verification samples. These are the exact same numbers we used on the previous example. The plan, again, is verified based on those two samples. What we've changed here on this one, I've changed the MSHA survey. Now on the MSHA survey, all samples are less than the standard. We have a 1.62 on the miner operator; 1.61 on the miner helper; 1.21 on the shuttle car; 1.41 on the roof bolter one; 1.48 on roof bolter two. The quartz levels are 78 on the miner operator; 55 on roof bolter one; 47 on roof bolter two. What this indicates is the compliance based on a single shift on all occupations. There are no citations. There's nobody overexposed based on the one shift of samples. However, there's another level to this. Under our inspection procedures, MSHA needs to determine whether this is an entity that gets sampled the next bimonthly period, or is it one that we would skip, because they are meeting the standard. Your production, though, during MSHA sampling is 750 tons. The VPL -- or the production that's required for the verification -- is 800. Ventilation during MSHA sampling was 10,000 CFM. Plan quantity that's required is 9,800. What we do is, we do an evaluation of that highest dust concentration, and highest quartz concentration, based on those numbers. So we apply a factor to the concentration of dust and quartz. The 1.62-milligram dust concentration was the highest, so we apply a factor of the tonnage that's specified in the plan, divide it by the tonnage that we found while we were sampling. If anything, we're going to get lower production during the time that we're sampling, because the VPL is only available one-third of the shifts, and two-thirds of the shifts it's going to be less. That factor results in a factor that's higher than one, so it's going to increase the concentration. We do the same thing with the ventilation. The plan calls for 9,800. We found 10,000. We come up with a factor for that. It's also greater than 1, so it's going to raise the concentration. Those two factors result in 1.62 milligram respirable dust being raised to 1.75. It results in the 78 micrograms of quartz being raised to 84. Based on those numbers, MSHA bimonthly sampling will be required on a bimonthly basis, because the 1.75 exceeds the critical value of 1.71. Anytime MSHA collects a sample, we will make those determinations to determine whether people are qualified to be sampled the next bimonthly period or not. When we say that we're going to allow people not -- to skip a bimonthly cycle under the MSHA sampling program, it is only for those operations that truly demonstrate that they've got good controls in place that are going to result on compliance on, essentially, each and every shift. The third and final scenario is the PAPR use scenario. Here, we have mine A. For discussion purposes, it's a long wall. They've installed a shearer clearer, shield sprays, pan sprays. They have 500 feet per minute velocity along the face. And they have a production level of 16,000 tons per shift. This isn't saying that this is all the controls that are available for a long wall. We're just using this as an example that they have these things in place, and that we considered that to be all that is feasible at this particular operation. MSHA makes that determination that all feasible engineering controls are in use. Based on that, the operator submits to use of PAPR appropriately. That means that a full program -- respiratory protection program has to be included with the ventilation plan. So it's going to spell out who has to wear, when they have to be worn, who's going to clean them, who's going to maintain them, who's the person that's in charge of the program at the mine that you can go talk to, what PAPRs are being made available. Anything and everything about the program has to be spelled out in that particular program in writing, and made part of the approved plan. All miners working in by the shearer must wear PAPRs, in accordance with the approved plan. That's what this plan is going to call for, because it's in by the shearer where they're going to have the high dust concentrations. The average velocity along the long wall is 490 feet when we go in and do our evaluation. To determine the protection factor that we will assign to this MMU for that, it will be 3.2. It's the quantity 2 times the 800 feet per minute, divided by 490 feet per minute. The 800 feet per minute is the factor that we have built into the rule. The 490 feet is the actual velocity going across the long wall face. When you take the 2 times the 800 divided by 490, it equals 3.2. 3.2 is the factor assigned to that particular MMU, as long as they have 490 feet per minute velocity on that face. The plan will specify that they have to maintain all the engineering controls that were determined to be feasible by MSHA. See, we make that feasibility determination. Everything that's on the plan or in place at that time has to be spelled out in the plan, so those controls become the minimum that they have to maintain. The equivalent concentration, if the person wearing the PAPR under these conditions was exposed to 2 milligrams of dust in the mine atmosphere. The equivalent concentration inside the PAPR would be .62 milligrams per cubic meter. Where are we going with this? Just for your information and background, we're going from 1970 to 2002. The purple bars indicate the prevalence of CWP, or black lung. This is data that's taken from the NIOSH world report. It's a compilation of the x-rays that are offered through the x-ray department that NIOSH administers. And then for 2002, it represents those x-rays that are initiated through the NIOSH program, as well as the Miners Choice x-ray program that was run for three years. You can see that the prevalence of CWP has been dropping, but it is starting to level out, 2.9 to 2.8 from '95 to 2002. It's not dropping. And one of the parts of the requirements under our Act is that we want to try to get CWP down as low as possible. And we're not achieving the levels that we should be getting. Based on that, plus the fact that we have -- in the percents here, you'll see, is the percent of samples exceeding 2 milligrams for each year, as well as the bracketed amount is the average concentration of operator DO samples. All these numbers are based on the percent exceeding 2 milligrams, and the average concentrations are based on the operator samples. You can see that we've started seeing a leveling off of data. We're not getting anywhere. So we're looking at the health side on respirable dust, the same as the administration is looking at safety, and that we've leveled off. We need to do something else. The last thing is that we'd like to demonstrate the effect of averaging. Why we think averaging is not getting us where we want to be. This is an example of actual concentrations submitted by an operator for a particular mine. And this is five samples collected on five different shifts on a continuous miner. We have one shift at 3.2 milligrams; the second shift at 1.6; the third shift at 1.5; the fourth shift at .8; the fifth shift is 3.1. The average of all five of those samples is 2.0. The operator's in compliance. We can't do anything. But yet, we had two out of the five shifts where people were exposed to greater than 2 milligrams. With single-sample and plan verifications, this is what we want to get a handle on and stop. With single-sample and plan verification, we think that what we are proposing will get us to where we don't have those shifts that are exceeding 2 milligrams. That concludes the overview. MR. NICHOLS: Okay, Bob. Thanks. Could I have your attention? Before we break, I'd like to ask Dr. Wade to give us an update on the status of the personal continuous dust monitors that have been in development for a while. DR. WADE: Good morning. I'm Lew Wade, and I work for the Mining and Research program of NIOSH, the National Institute for Occupational Safety and Health. The reason I'm sitting up here on this panel is because NIOSH joins MSHA in moving forward the single-sample rule, but that's not in the context that I'm going to give you this update. The reason I'm giving you this update is that NIOSH in its research program has as one of its goals the development of a personal continuous dust monitor. Let me give you a little bit of background about what that is. Those of us in and around the industry have long sought a technology that would empower mine workers and mine operators to know, in real time, what their dust exposure was. We have undertaken this development over a number of years. We've now realized a technology that we think offers hope in this area. The technology really is a beam the vibrates, and the frequency of the natural vibration of that beam changes, depending upon the sample, the mass of dust collected at the end of that beam. So this now gives us the ability to look at real-time dust readings. We've put together a device - we call it the PDM 1 -- that affords us this possibility. What the device would do, for any shift up to 12 hours, was that at any point during that shift, it would give you an indication of what the dust level had been up to that point. It could let you look at the last 30 minutes. It would also allow you to project forward what the dust reading would be on that whole shift if the remainder of the shift was to see exposure that had been realized up to that point. So this is, again, a device that we see offering tremendous potential to empower mineworkers and mine operators. Now to the status of where we are in this device. We have developed prototypes, and we've put those prototypes through a rigorous protocol in the laboratory. What we've learned through those laboratory tests is that we're very comfortable with the accuracy of the device, and this is the accuracy of the device, comparing it to the standard sampler that is used now. We've also looked at the effects of temperature variation and water sprays, and durability of the device in the laboratory, and in all cases we're very pleased with what we've seen. We're now poised to begin the part of the protocol that looks at the underground evaluation. We'll take six of these devices, and we'll put them through their paces in the more rigorous underground environment. We expect those evaluations to begin this month, May of this year, and proceed for one or two months. That would put us through June into July in terms of the underground evaluations. At the end of that point, we would evaluate the performance that we have seen during those underground tests. Now, I need to point out to you that we at research are very optimistic about our ability to realize these schedules. Oftentimes things take turns and twists that extend these periods, but I'm giving you our best estimates. We would like the underground evaluations to start in May and be finished in July. An analysis of the data making the data available in an August, September time frame. I will tell you, for the record, that based upon the laboratory work, we are optimistic about the devices and what these devices will do in the underground evaluation. But until we go through the underground evaluation, we can't be sure, so those tests remain in front of us. At the completion of an underground evaluation that was to be successful, we still have the hurdle of making these devices available from the private sector commercially. Again, NIOSH is not in the business of making such devices available. The private sector will have to step to the plate and determine if there is sufficient market and interest for them to move forward with commercialization of those devices. So that's as succinct and, hopefully, an accurate an assessment of where we've been and where we are, relative to this elusive goal that we've had for a number of years of a personal continuous dust monitor MR. NICHOLS: Thank you, Lew. I have 9:25. Let's take a 15-minute break and try to back in our seats ready to go at 9:45. And our first presenter after the break will be Carlo Tarley with the UMWA. (Whereupon, a brief recess was taken.) MR. NICHOLS: Okay. Let's try to get started. Our first presenter will be Carlo Tarley with the MWA. MR. TARLEY: Good morning. MR. NICHOLS: I failed to mention in my opening statement. Would you mind spelling your name for the court reporter, so we'll be sure to get the record correct? MR. TARLEY: First name is Carlo, C-A-R-L-O. The last name is Tarley, T-A-R-L-E-Y. And I have a prepared testimony, but just one brief comment on the opening. If I understood right, MSHA says they crafted this new rule in order to heed the wishes of the coalminers, and also in an effort to eliminate black lung. It is our opinion that this rule clearly does neither. That this rule, in fact, makes things both worse for the miner, and worse for with black lung victims. And one other point I wanted to make. When Mr. Thaxton was making his presentation, at one point he referred to this as "this little package and what it does." But he didn't make it clear no everybody, although you have handouts, this is the little package. It's very complicated. It's double-sided. As a matter of fact, our technicians within the Mine Workers had to meet with MSHA on a series of meetings that consisted of about six or eight hours, just for them to have an overview of what the rule meant. So I don't want anybody to be misled that this is a simple rule contained in the summary documents that were handed out. On March 6, 2003, MSHA issued proposed rules that are so highly complicated and confusing that miners and safety professionals could not understand them. They are laced with formulas, exceptions, and language that is nothing short of gimmicks, and is a regulatory nightmare. They have critical provisions hidden in the rules, only to be known by interpreting formulas and definitions. One such change in the rule would outrageously allow mine operators to increase the respirable dust levels in the mine environment where miners work. Four times the level of the current dust level set by Congress in the passage of the 1969 Coal Mine Health and Safety Act. AMTSA wants to let dust levels raise to the levels Congress refused to consider over 30 years ago. A number of the proposals in MSHA's rules will have the effect of allowing miners to be exposed to the levels of dust beyond that proscribed by Congress in the passage of the Mine Act. Those proposals include not sampling miners' exposures for the full shift; allowing the margin of error to favor the mine operator, and not the health of the operator before MSHA cites overexposure. While miners argued to decrease dust levels in the nation's mines, MSHA did the reverse and increased them. When MSHA proposed to overhaul the respirable dust program in 2000, many miners went to public hearings to tell MSHA what they needed to improve the dust sampling program, to end overexposure to the unhealthy coal dust. It is clear from the rules proposed by MSHA on March 6, 2003, that MSHA did not listen to the miners. In fact, several of their new proposals, including the one listed above, were contrary to what miners called for and needed. While miners called for increased dust sampling, in particular, continuous dust monitoring, the new MSHA proposals substantially reduce the amount of compliance sampling by 80 to 90 percent in out-by areas and on working sections from that currently conducted. Some mining sections would have as little as three shifts of mining sections sampled a year, and out-by areas would have only one shift sampled a year for compliance. The MSHA proposals eliminated the mandatory standards, with plans to conduct a few samples through an ever-changing Agency policy. The rules took away any guarantee that compliance samplings of those areas of mines would take place. Instead of substantially increasing the monitoring of dust levels in the nation's mines, MSHA proposed rules that substantially decreased the monitoring of the unhealthy dust. Overwhelming evidence shows that improvements are needed to protect miners from pneumoconiosis, a disease often called black lung. Tens of thousands of miners have died from the disease, which destroys the lung and the respiratory system. NIOSH studies have shown that over 1,000 die each year from the disease. That's an average of almost eight per hour. That disease has cost tens of billions of dollars compensating victims who are disabled from a disease. It has left a trail of destruction in communities throughout the coal fields. The latest figure from the Department of Labor shows that 106,519 federal black lung claims will be paid out this month, and another 7,000 by coal companies. Those figures do not include numerous cases of miners with partial disability paid through state programs, where there is not a federal award for compensations. Studies released in April of this year of working miners' recent x-rays show miners are still getting the disease, with several hundred of those miners diagnosed with the disease. Evidence shows that respirable dust levels need to be reduced in the mine environment. The respirable dust sampling program has been wrought with problems for years. With limited sampling of the harmful coal dust, many mine operators have learned how to manipulate sampling and cheat the system. While many have cheated and got away with abusing miners' health, many have been caught. During the 1990s, over 160 companies and/or individuals were criminally prosecuted for fraudulent dust sampling. The Louisville Courier Journal of Kentucky conducted an in-depth investigation of the dust sampling program in 1998, citing widespread fraud. Evidence shows that frequent sampling of unhealthy mine dust is needed to protect miners from the disease. The Mine Act, the Miners Federal Advisory Committee, and NIOSH have all called for improvements when it comes to coalmine dust. Numerous provisions contained in the March 6, 2003, proposal are in direct contradiction to those. Several provisions violate both the spirit and the letter of the law. One proposal would have respirators replace engineering and environmental controls. This is not only in direct violation of the Act, but the specific type of respirator MSHA would mandate miners to wear has been faulty. And we find this particularly outrageous that, for over 30 years, we've been able to live with the 2-milligram standard, and to our knowledge, MSHA has not shut down one single coalmine as a result of them not being able to comply with the 2-milligram standard. And then for today's miner, the level of dust can go as high as 8 milligrams, and this miner is going to be required to wear a helmet in order to protect himself. Keep in mind that this miner is going to be subject to this apparatus. Its failure to success is going to have a direct impact on that miner's health and that miner's life. If that thing's not properly maintained, or if it's faulty, and he doesn't know it, as we know, black lung doesn't reach out and kill you in one day, it goes over long periods of time. The fact that we would tell anyone that, in order for you to work here, you have to wear this helmet. Otherwise, we know that this environment is so deadly that you can't work it without this helmet. Therefore, here's this helmet, go in there and do the work. We did that in the 1920s. We're not interested in doing that again. And in rushing the March 6, 2003, proposal at a time when several mine accidents and several other major regulatory actions were ongoing, MSHA did not give those who needed to review the complex and confusing rules enough time to adequately review the newly proposed rule. MSHA also did not wait for final testing of the device that would solve so many of the ills with the respirable dust program. That device, a worker-friendly continuous dust monitor that miners could wear every shift, every day to record dust levels and keep them out of the dust. That device, supported by labor and government, was going through the final testing following years of work supported by the UMWA, industry, and NIOSH. With final testing due this summer, the device long sought by monitors and promised by the government should have been the centerpiece for reforming the troubled respirable dust program. Instead, MSHA proposals would let operators use it as an option, and written in a way that the option would not be exercised. Such a device needs to be required in each coal mine, for miners to have to protect themselves from unhealthy coalmine dust. When MSHA proposed the rules on March 6, 2003, they sided with the mine operators, because the dust levels in the proposed MSHA rules substantially reduce the amount of respirable dust sampling in the nation's coalmines. They sided against the miners in a well-documented history that calls for lowering the dust level in the mine environment, increasing the frequency of sampling to protect miners from the dreaded black lung disease. Who is the leadership of MSHA making these wrongheaded decisions? Where did they come from? And why are they siding with the mine operators, at the expense of the miners' health? The short answer is, top leaders who control the agency come from industry. Those include the assistant secretary of MSHA; the two top agencies' deputies; the special assistant to the head of MSHA; and the chief of the -- coal, who directly oversee the respirable dust program. The increase in coalmine dust will have other adverse effects. Allowing larger amounts of coalmine dust to be uncontrolled, blown throughout the mine increases the danger of coalmine fire and explosion. And I understand. I think sometimes the people in Arlington don't believe that the miners understand how a coalmine works, and that this dust thing is too complicated. Well, nothing could be further from the truth. These coalminers here, most of them are like me, 20 or more years service. We understand dust. We understand how to ventilate. We understand where to put the sprays. We understand the bit patterns. And we're the ones who do the maintenance. We understand dust. We also understand that, yes, the dust we're talking about is fine dust, but in order to have fine dust, you have to have coal dust. And if you have more coal dust, now you have two problems. You've got a guy with a helmet on, who may contract this dreaded disease simply because of a faulty helmet and being in a bad environment. But you also may increase the float coal dust in the mines. And certainly, we all know what that leads to. As a matter of fact, on September 21, 2001, a coalmine explosion ripped through the Jim Walters mine, killed at least a dozen miners. Investigators found that coalmine dust was a primary fuel for the explosion. This is a reminder of the explosion that often occurred before Congress created standards to protect miners from those violent and deadly disasters. And I was on the mine rescue team operation at Farmington Number Nine following the 1968 explosion, and I can tell you firsthand what coal dust will do if it's allowed to build up in the coalmines. The MSHA proposal must be withdrawn and new proposals redrafted that are in tune with the need of the miners. I mean, after all, isn't this about us? Isn't this about us? And if this is about us, let us have some input on this. Because the new rule needs to comply with the miners' needs, the Mine Act, and historical findings. Those rules need to require continuous dust monitoring at all coalmines, to increase sampling of the unhealthy coalmine dust, and lower the dust levels in the nation's mines. It is high time that MSHA sided with the miners and not with the mine operators, to fix these troubled dust programs. (Standing ovation.) MR. NICHOLS: Thanks. You find it outrageous that MSHA is proposing to eliminate this scheme of averaging samples? MR. TARLEY: So that you understand, we have, as an organization, been fighting for continuous sampling. We agree with you that there's been a lot of cheating going on, on the company side, and that needs to be fixed. But it doesn't need to be fixed in a manner where we just forget about sampling altogether, and we pretend that -- if we don't sample, then we don't know what we have. So all right, let's not have the company do any more compliance sampling, but let's have MSHA do those 30 samples. But MSHA's not going to do them. The operators are not going to do them. And with as little as three samples in a particular year, how do we know what we're in? Particularly when we have this device, which was spoken eloquently on shortly before I began. And also I've had an opportunity to talk to the manufacturer. This thing is ready to put in our hands. Where's the rush here? If we've got that thing, can anybody up there honestly say that anything -- if that thing works the way it's supposed to, if there could be any better piece of the puzzle for this dust program than that continuous monitoring? I think not. MR. NICHOLS: How do you like the idea of requiring operators to develop real dust plans, and have them verify the plan that it really works, as compared to what we accept now, that we get a plan that they think will work -- MR. TARLEY: Well, the plan verification part -- and we have somebody that's going to speak on that. I'm not prepared to speak on that at length. It has some good parts, but it's also got some gaping holes in it. And I don't want to speak to something that I can't talk to in its fullest, but I think the next speaker, who is our top gun, can address that in a fuller manner than what I could. And that's why I didn't speak on it in my remarks. MR. NICHOLS: Well, you mentioned that you don't know of MSHA citing anybody for not being able to comply with -- MR. TARLEY: No, I did not say that. MR. NICHOLS: I believe you did. MR. TARLEY: No. I said MSHA, to my knowledge, has never shut down the mines that couldn't get to the 2-milligram standard, meaning that there is no mines, to my knowledge, that doesn't exist today because MSHA come in and sealed it up because they couldn't met it. Now, am I wrong? I would like to -- MR. NICHOLS: No, but I think you can readily see how some people get to the 2-milligram standard. MR. TARLEY: What's that? MR. NICHOLS: I think you can readily see from our presentation how people get to the 2-milligram standard. You'll have two people overexposed, three under, and average it out. I think if we had the single-sample, you would have seen some stronger enforcement action. People can adjust and average these samples. MR. TARLEY: We're not opposed to single-sampling. When I'm saying this, this plan is clearly, in our opinion, an operator's plan. And think about it. What is our motive on this side? Is it profits? No. Pensions? No. We just want to have a reasonable chance to go to work and come home safe. We want to have a reasonable opportunity to finish our career at the coalmines, and not be afflicted by some disease that will give us a painful death. That's all we've got in this. And I don't care if comes from MSHA or the operators, or falls from heaven. If there's a way to fix this thing, we'll be the first there to tell you that we like it. This is not something that's just started. We've been doing this since 1969. To my knowledge, MSHA wouldn't be there if it wasn't for us. To my knowledge, I know the Coal Act wouldn't be there if it wasn't for us. And what's more, it wouldn't be there if tens of thousands of us didn't die. And what's more, what I know is a fact is that there has never been a rule promulgated in Washington that saved us. Every rule that we've got, one of us got killed or injured, or we danced in the streets, and then Washington sat up and said, you know, that's a pretty good idea. I've never seen -- I never woke up, not one single morning, and Washington says, I've got the fix for the coalminers. And this is the same thing. This rule here didn't flow from the coalmines to Washington, it flowed from Washington here. And everything that flows in that that direction is always bad for us. And if I'm wrong, somebody can point a law that came from Washington to the coalmines, as opposed to -- and we've got some more we'd like you to enact, quite honestly, but we'll have to hurt a few more, and we'll have to kill a few more. That's how it's done. MR. NICHOLS: Okay. Thank you. MR. TARLEY: Thank you. (Applause.) MR. NICHOLS: Okay. Joe's already -- MR. MAIN: Yeah. We have a lot of folks here today very concerned about this rule. And forgive me if I take a little extra time, Marvin, but under the circumstances, I think that it's important that that be done. I came here with a prepared text this morning. I've just scrapped it. I'm doing that -- MR. NICHOLS: For the court reporter, he needed to know who you are. MR. MAIN: My name is Joe Main, M-A-I-N, and I represent coalminers, and I work for the United Mine Workers of America as the administrator of health and safety. And that's my job in life, to represent coalminers, work on their behalf. And as a starting point, there's so many things that's ran through my head this morning. I just really didn't know where to start, and still don't know where to start, so I'm just going to pick a spot. I'm probably one of the longest standing people that's in this room that's been working on reforms of the coalmine dust program that I know of. I've looked around the room, and I know I go back to 1976 and the convention in Cincinnati, Ohio, when a bunch of miners, fed up with a dust sampling program, crafted a plan to fix this problem. And that plan was simply, get samplers on these guys 24/7, 365, and we'll get control of this dust. And let's do that on this, and we'll get a system in place where miners can end the exposure to unhealthy dust levels. That was in 1976, the Cincinnati convention, and a bunch of coalminers who knew more about this program than anyone in Washington I have met since. I got to be a part of that, and listened to miners as they crafted this, and it was the most sound idea that I ever heard then, and since. You know, I've sat back through, over time. I've reviewed the NIOSH criteria document that was issued in 1995 that called for increased dust sampling, that called for lowering of the dust levels in the nation's mines, and many other improvements. I was a participant on the federal advisory committee, and I can speak firsthand as to what that committee recommended as far as actions to fix the problem. And we were charged by the Secretary of Labor to develop regulations to eradicate the black lung disease, pneumoconiosis in the nation's coalmines. That was our charge. We spent months putting together a plan. It involved industry participation on that committee, labor participation on that committee, NIOSH, MSHA provided all the evidence and guidance to the committee. We had five neutrals that had no interest in mining, sitting there as part of the decisionmaking body. And at the end of the day, that committee laid out a framework for reforming the black lung program, the respirable dust program in the mining industry. The sad reality is that when MSHA went to rulemaking, they ignored the 1995 criteria document issued by NIOSH, Lew Wade's crowd, they issued -- or they ignored the federal advisory committee recommendations outright. But you know, worst of all -- I mean, there's historical findings there that tells this Agency what you need to do. Increase sampling, decrease dust levels, increase sampling, decrease sampling, increase sampling, decrease dust levels. Laced through all of those recommendations. But when the miners showed up, when the miners showed up in 2000 to lay out their case, I was at every hearing. I heard what miners had to say. They said the rule was wrong, it took the wrong approach. What miners asked for was increase the dust sampling in the nation's coalmines, decrease the dust levels, and give us continuous dust monitoring. Now, that 1976 idea of the miners has taken a lot of form over the years. In 1980, when we were finishing up the reform of the dust program, and revising the sampling schemes, MSHA admitted, look, we haven't got this right yet, and what we want to do here is, build this continuous dust monitor and use that as a tool. They made a promise to coalminers in 1980 that they would work to build that device. What's happened since, a lot of pretty things, a lot of things not so pretty, with respect to the development of that device. I take my hat off to NIOSH, who has helped spearhead the development of the device that we now have at hand, that gets what miners said in 1976, and gets what the government promised in 1980, and has us at the very edge of having that as the tool to fix this dust sampling problem. What can we do with that device if we get it? Real simple. We can put it on every miner in a high-dust occupation, on Part 90 miners, on miners throughout the mine, and every day and every shift get data on what they're exposed to, for the government's use to help determine the compliance with the dust levels. We can give miners a tool of empowerment like they've never seen before. Miners can put on the device, look down at it, and find out how much dust they were in up to that part of the shift, whether it's in two hours, three hours, or four hours. Miners can project, if they stay in that dust level, what it's going to be, and if they're going to be overexposed before the end of the shift. We can do this for the full shift. We can have, for the first time, full-shift sampling in the nation's coalmines, constant sampling, immediate information, not waiting for a sample to be taken out, and question whether or not an operator has tampered with that sample before it ever goes to the feds to get analyzed, and the data gets back. You know, there's a ton of things we can do. Plan verification, Marvin, I'll tell you straight up, you put a dust sampler on those guys 24/7, 365, you won't Mickey Mouse around with a system that just don't work. You know, as Carlo said, we met several hours with MSHA to get to the root of these rules, what they are. We couldn't figure them out. You know, I've been dealing with this for years. I could not figure them out. I think three meetings, somewhere around six to eight hours total, just to walk through the complications. I challenge anybody to tell me within five or ten minutes what they saw on the screen today. It's complicated. It's over people's heads. It's over miners' heads. But the worst part of it is, these rules are so confusing, and they're deceiving, as well. I did not know, until Bob Thaxton told me, that the dust levels in the mine environment in a coalmine, under this rule, could go up to 8 milligram. Didn't know that. Not until Bob told us. Had no clue that that was the case. I said, Well, Bob, where in this rule can I find that standard? It is not in the rule. You've got to understand the formulas and factors to get you there. And that's outrageous. I mean, there's a lot of miners that have no clue that there's a rule about ready to come down, that is going to allow mine operators to elevate dust levels to that height. We asked, okay, this quarterly sampling program, which is a plan verification, how does it work? What's going to happen? We were told that, in terms of the followup plan verification, that about 85 percent of the mining units in this country would not be doing it. We asked, okay, that mine operator on that 8-percent standard, what would trigger a quarterly inspection by that mine operator under those circumstances? Well, as we told, Bob, I think it was 6.67 to trigger that. Am I close? MR. THAXTON: Close. MR. MAIN: Okay. You know, does anybody that read this rule see 6.67 that trigger a plan verification at a quarterly sampling? If you see it in the rule, tell me. It ain't there. The 8 milligram. You know, I've been taking a beating. Joe, you don't know what you're talking about. There is no way that they can jack up the dust levels to 8 milligram in the mine atmosphere in a working area, active areas of the coalmine. Oh yes, there is, because Bob Thaxton told me they could. But it's not in the rule. These miners don't know that. MR. NICHOLS: Did you tell Joe that? MR. MAIN: I'm telling you the facts of what the case is, Marvin? This is things that should have been in that rule. We challenged MSHA when we had those meetings. You can't go out there and explain this rule, and hide these things from the miners. It ain't fair. It ain't right. And it ain't the truth. That 2-milligram standard that you see laced through there? That's not 2 milligram. That could be anywhere from, as I understand it, less than 1 milligram up to 8 milligrams, by the information that was provided to us as we questioned this rule. We ask for this rule to be withdrawn for two reasons, and we still have that standing request, although I've been informally told the answer is no, I'm telling you the right thing to do in this case is to withdraw that rule. One is, it was dropped in the middle of a large number of mining accidents. The most that I think I've ever had on my hands to deal with at one time. Everybody thinks the mining industry is safe. We had a -- indentation that almost killed three miners from Kentucky on January the 3rd. On January the 6th we had the mine fire destruct the 84 mine, closed it down, and rescue workers had to go back in and save the mine. We had the explosion at the McElroy mine in January, around January 22nd. We had the closure of the Loveridge mine because of a major mine firestill closed. Other than the fact that we're in trying to recover the fire area. And we've had to take all of our resources to respond to those. Plus we have investigations of all of those ongoing, in addition to the wrap-up of the investigations of the Jim Walters mine. Now, how in your right mind can people who have to preoccupy themselves with those kinds of important issues delve into, and understand, and prepare to respond to such a complicated, confusing, and basically outrageous rule? You can't. And we're struggling to do that, and we're going through this learning process, learning from you guys as we go. I challenge you to give this document to any miner on their own. And the document's, as Carlo pointed out, that thick. Give them two days, and let me test them on what's really on that rule. And I'll give them a 20 percent pass rate, too. It is that complicated of a rule. I don't know how people expect miners to understand the complexities of that, but based on all of those -- and MSHA launched another rulemaking, which was the belt air rule, that would eliminate protections for miners as far as the best being forced to coal faces that's been in effect since 1969. We're struggling to try to respond to that. We have, I think, a June 30th deadline. And we had a number of mine fires that just recently happened, and belt injuries. We're going back to see how that even fits with this rule. You know, I think it's safe to say that those on this side of the table are underwater, and we pleaded with this Agency to understand that. You know, I'm sorry they didn't. We've been out rushing, trying to get our hands around this and get information out to the miners, and we have not been too successful about that. There's a lot of miners that just understands bits and pieces. But I think when you explain this rule, you have to explain it in a way that really gets to the meat of it. And when you get to the meat of it, the bottom line is that it violates the Mine Act in a number of ways, it is totally contrary to the federal advisory committee findings, contrary to the NIOSH findings, and contrary to the needs and wishes expressed by miners clearly to this Agency that won't listen. And that's something we're struggling -- how do we get people to listen here? If you look at the construction of that rule, there's only one thing that can be done. Withdraw it, go back to the table, build it around something that does work. And I think it's time, because this whole issue comes down to which side are you on, the side of miners protected from the dust, or the side of operator interest and needs. Miners want the dust levels lowered. Miners want sampling full-time in these coalmines. Some mine operators want to get you guys out of the mines and no sampling. And mine operators want to raise the levels of dust in the coalmines. That is wrongheaded and it's wrong. But that's how this whole thing's shaking down. Which side are you on? Fixing this on behalf of the miners, or fixing it to the interests of the mine operators? Given what we saw so far in the document, it's very obvious to us that the miners lost in that argument, despite pleas to this government time and time again. The rule in its entirety is so flawed that it doesn't meet the job, and it violates so many recommendations of the Mine Act to do that the rule must be withdrawn and recrafted. There's some other clarifications I'd like to make, too, and just for the record, I understand that, Lew, you said that MSHA participated in the rulemaking. Did you guys participate in the rulemaking part that deals with the plan verification and the sampling under part 70, 75, and part 90? As far as having authorship of this rule that's before us? That would be other than the single-sample. DR. WADE: Joe, NIOSH was completely involved in all aspects of the single-sample rule. That includes an economic analysis, a quantitative risk assessment. Some of those documents, such as the economic analysis and the quantitative risk assessment are part, also, of the dust plan verification package, so in that sense, we were involved in the economic analysis and the qualitative risk assessment. We were not involved in the framing of the dust plan verification rule itself. MR. MAIN: The reason I ask that is -- MR. REYNOLDS: There's a legal reason for that, as well. I mean, NIOSH does not have rulemaking authority, and that's why the rules were structured the way they were. That's why you have two rules. MR. MAIN: The subject of my question, though, is that being a person that has read the NIOSH criteria document that I've never seen NIOSH back off of, the rule proposed is totally contrary, in many ways, to the findings of NIOSH as to what needed to be done to protect the miners. And I just wanted to determine whether or not they were any part authors of the specific regulations that exist in part 70, part 90 -- or 75 and part 90. And I understand the answer to that is no, as far as the authorship. Okay. With regard to plan verification, as it was explained to us -- and we have probably a step beyond what a lot of the folks do in this room, because we had a chance to sit down and ask a lot of questions that they haven't had -- but as I understand it, the plan verification process goes something along this line. The company submits a provincial (sic) plan, of which MSHA would basically accept if it looked good enough to pass the acceptance test, that would be in effect for a certain period of time. I think it's within 45 days they would have to begin sampling of that plant. One sample could get approval of that plan for the operator to use. By taking one sample. That's correct? One to four. MR. THAXTON: It's one shift of samples. MR. MAIN: Okay. But I'm saying, one sampling day, one sampling shift, whatever you want. But one sampling event could gain approval of the plan; is that correct? MR. THAXTON: That would be the minimum. MR. MAIN: Yeah, but is that correct? They could do that -- MR. THAXTON: As the minimum, yes. It could be up to five. MR. MAIN: And once they do that plan verification, the only requirements that they would have to go back and do quarterly plan verifications is if MSHA required it? Required the operator to do that? MR. THAXTON: That's correct MR. MAIN: Okay. And in this mine that I talked about, let's say that you have this factor of four, you're at a mine environment measured the same way we do now, reading 8 milligrams -- MR. NICHOLS: Let's deal with that 8 milligrams. Did you tell Joe that mine operators could go to 8 milligrams? MR. THAXTON: What we talked about, Joe, is that there is no 8 milligrams actually specified in the rule. MR. MAIN: That's right. MR. THAXTON: We said it's a protection factor that would be assigned could, theoretically, allow somebody to go up to a maximum of 8 milligrams. MR. MAIN: When I asked you the specific question, Bob, okay, how much dust, when you do that formula, that factor of four, how much dust would you be actually measuring? MR. THAXTON: That's why I said -- MR. MAIN: It could go up to what? MR. THAXTON: It could go up to a maximum of 8 milligrams. MR. MAIN: 8 milligram. Okay. Now, I mean, that's -- and the thing of it is, Marvin -- MR. NICHOLS: Joe, we've been through this before. MR. MAIN: Marvin, let me speak, and then I'll take any questions, if you don't mind. MR. NICHOLS: All right. MR. MAIN: The point of it is, the law explicitly says, In the mine environment, in the active workings, 2 milligram is max. Congress set that in 1969. And they said, fellows, that's it. You've got to meet that standard. And you're not going to meet it by using respirators. Very clear. Now, as I understand the rule, and those discussions from Bob, as I'm understanding today, with that PAPR on and that sampler on the side, they could legally go up to 8 milligrams of dust on that factor four standard, measured on that dust sampling. Am I wrong? MR. THAXTON: Can I respond? MR. MAIN: Am I wrong? MR. THAXTON: Can I respond to the whole thing? MR. MAIN: No, no, no. Just -- see, we're trying to establish, can the dust levels actually measured in the mine go from 2 milligram up to 8 milligram, as measured off that sampler in the same place we're measuring it now? Can that reach 8, and they still be legal? Yes or no? MR. THAXTON: With the way you're phrasing it, no. if they were at 2 milligrams, they cannot be allowed to go to 8 just because they wear a PAPR. If the operator is able to maintain two, they will stay at two. If they are able to maintain 2.5, they will have to stay at 2.5. MR. MAIN: Well, this gets me to another issue of trust. We'll get to that one, Bob, okay? I'm just saying, under the law, is it legal now for an operator to have a dust level up to 8 milligram? Yes or no? Measured in the mine environment on that sampler, yes or no? MR. THAXTON: Theoretically, yes. It can go as high as 8 milligrams. MR. MAIN: Okay. Now -- MR. THAXTON: There is no -- MR. MAIN: You know, let's be honest here with these fellows and what it is. I mean, here is what the truth of this proposal does. As we understand it from those discussions, a mine operator can request to get PAPR use in their mines. They can claim, we've exhausted our engineering controls, we just can't do it, and we need to increase the dust levels. They have made those requests to MSHA before. Trail Mountain. Dave Lauriski's own former mine being one of them, which you and I worked on, Bob. Jim Walters, a person that worked on that back in the nineties. We can't do it, you got to give us these PAPRs. We went in and we showed them how to engineer their coalmines, didn't we? MR. THAXTON: Yes. MR. MAIN: And they had the standard in place that says, you have no escape here. You're not getting a respirator to replace your controls. What this rule does is to give them that escape. And we have to rely on the trust of the government to do the right thing, as opposed to a regulation that says, no, you're not. That's the difference. Now, there's a lot of things we can walk through here as a trust issue, and you have to make determinations for miners who express their opinion on this rule whether or not we trust this Agency. In the last two years, on respirable dust issues alone, there has been a number of things happen. December 2001, MSHA made a decision to withdraw the rule that would have led to lowering the dust standards in the nation's coalmines. December 2001, MSHA made a decision to withdraw action on a rule that would have dealt with requiring continuous dust monitors in coalmines. Last year MSHA revised the dust sampling program. We know we had the Excel decision, and you had to do some things on how you did the followup inspections, which, we understand that side of the equation, but beyond that, what MSHA did that they didn't have to do, with the Excel decision, was, they changed the whole enforcement scheme by reducing from six dust sampling inspections per year to four. And by the way, those four compliance enforcement samples was no longer enforcement samples. They were called -- what was the word? Targets? MR. NICHOLS: No, trigger. MR. MAIN: Trigger. Target. The operator could violate the law and not even get cited on those four. Outrageous. Outrageous conduct, I think, on the part of this government, when we have so many people getting the black lung disease. Then, last year what the Agency did was, eliminated the program that Carlo talked about here that just found that over 800 coalminers have the disease that's working in the coalmines today. After examining about 31,000 coalminers, the program ended, over our objections. It was producing the evidence and information we needed, to fix this problem. Areas like Eastern Kentucky, we believe, were basically missed with that study. And if anybody doesn't believe that problem is as bad in East Kentucky as anywhere in the country, I think that you have to read the history books of the mining industry. But these are actions that this government took with, regard to dust reform issues alone, since December. Now, what is it? We should trust MSHA to do the right thing whenever that operator who has no miners rep comes to the district manager's door and says, I've exhausted my engineering controls, and if you don't give it to me, I've got to shut down your coal mine? Do we honestly believe that we're going to have stiff-backed Agency folks saying, no, and we're going to go show you how to do it, at a time whenever the prohibition that would stop them would be eliminated, which you choose to do under this law? I am telling you straight out, on behalf of the miners, it is illegal, it will reduces protections afforded miners, and it's the wrong thing to do. If you go back to the proposal of the miners, and we just sit back and listen a minute about how we need to fix this program, you put a dust sampler on a coal miner 24/7, the truth's coming out, fellows. And they're going to have to do something to keep those dust levels down. That will do more to do plan verification than any single thing that I can think of. Why do it one time? And under your proposal, Bob, as I understand it, with 85 percent of the mining units not being subject to further plan verifications, those quarterly ones are going out the window, and leaving a possibility of a mining unit, under your rules, to be sampled for plan verification by that operator one time. That is a possibility laid out by you guys. Now, it makes all the sense in the world. Let's don't do it one shift in a year, let's do it every day of the year and have constant plan verification. Real simple math there. We'll have all the data and information. You know, miners have argued, which is part of a lawsuit for full-shift sampling, one of the beauties of this device is that it will let you do full-shift sampling up to 12 hours, like that. That's the way it's designed, what it'll do. We can have full exposures of miners, as opposed to those fellows working 12 hours in the middle of the dust, oh, the dust pump's come off, okay, fellows, we can go a little -- you know, we don't have to put the line curtain up now. Whatever the case may be at some of these mines, that has happened. You know, there's a history of dust fraud that is just about as deep as any kind of immoral act that you could think of in this mining industry. In the 1990s alone, over 160 companies and/or individuals was criminally prosecuted for fraudulent dust practices. We think that that case should never have happened. We think what those miners said in '76 should have been listened to. Put them dust pumps on there. Let's have 24/7, 365 collection of data, and let's do it the best way we can to prevent the tampering. That solves that problem. So we have in this scheme, at the end of the day, under the plan verification, the opportunity for an operator to get a plan verified and continued verification with one shift sampled. And as far as the MSHA sampling, you know, we have a rule that guarantees if we don't like it. And we think that the operator control of the dust compliance program should have been eliminated years ago. We said. We said it. We said it. But what we haven't said is, oh, eliminate the mine operator dust sampling requirements, and take what little bit you guys do, and tinker with it in a way that, so maybe it'll be just a hair more than what you're currently doing, and some may get less. Because at the end of the day, under your sampling, as you've told us Bob -- and that's the reason that these folks need to understand this - - that there are mines in this country that could see only three compliance shifts sampled in a year's time. And out-by areas in coal mines? That's far worse. One shift is your proposal. One shift out-by coal mines. And we're going to measure the whole exposure of all the coalminers in that coalmine on one shift of sample. That is ludicrous. You know, we are frustrated. We're frustrated, because we came here and said the same darn thing in 2000, Bob, Marvin. We said the same thing five years ago, ten years ago, twenty years ago, and nobody's listening. It is not for the bureaucrats in Washington that this issue be resolved. It is for the coalminers. There's a way to fix it for them. There's a way to empower those miners so they have control over the dust levels, and in a way that there's going to be some real accountability here. Now, if there's a fear of accountability of these operators when that dust sample comes out at the end of every shift that says 2.5, if you're worried about that, you better not be. That's not your job. Your job is to make sure that that's less than what the standard is. MR. NICHOLS: We weren't too worried about that, Joe. We prosecuted those 160 dust fraud cases that you mentioned, and this Agency supports the use of personal continuous dust monitors. This rule allows for that. What we're not going to do is sit and wait a few more years for the development of them, like we have the last two years, and let these miners continue to breathe dust. MR. MAIN: Marvin, two problems with what you just said. One is, do you know how we got in the mess that we did with the fraud? MSHA backed off inspecting coal mines. They went down to -- after this promise was made to miners in 1980 -- and the record will bear this out -- after that promise was made, MSHA cut back to two inspections in coalmines, and set back and let the operators really control the program, and then it all caught up with you guys. And the second thing is, Marvin -- and I'll finish, and then you can make your point. The second thing is -- you're here to hear from us, okay? The second point that I'll make is that you backed off of dust inspections again. And I'm sitting here thinking, we just went to Congress, we just went to the world saying we need to improve dust sampling in this country. And I was totally appalled last summer when I saw that goofy policy come out of MSHA that says, we're going back to four, and we're going to call them -- what is the word there, Bob? It's not "target," it's "trigger"? I mean, where the heck are we at? I'm telling you, it is wrong. It's wrong for the nation's miners. And what we need to do is put this thing - - they can't trust you guys. They can't trust the operators. I mean, there's 25 years of history. You've done some changes. You've done some improvements. But you've failed to really get the case closed, to protect these guys, and that's what we're down to. Do we reduce the dust levels in the nation's mines, and increase sampling? Or do we increase the dust levels and reduce sampling? If you look at your proposal, it cuts along those lines. The miner says you're dead wrong. The operators probably support you. I know there is operators that have supported some of that stuff. MR. NICHOLS: How many do you think support single-sample? MR. MAIN: Single-sample on one shift in an out-by area coal mine, to measure the full measure of that miner's exposure is totally ridiculous and outrageous. Full shift sampling every day? We buy that argument, but you guys won't do it. MALE VOICE: Plus it's controllable. MR. NICHOLS: How many operators do you think support single-shift sample and eliminating the chance average samples here? MR. MAIN: Marvin, I'll tell you one thing. I've been in this business for a long time. That is the goofiest, most complicated proposal. I still don't understand it all, and I've been through three courses. What you got here is a totally confused, complicated rule that I challenge you to figure out. Go out and find out who understands this thing first. Then ask what it means. But if you do that on a sporadic basis, it means nothing. If you do it on a constant basis, it means something. And that's the difference. You can't take a sample -- does anybody in here really believe that you can measure the full exposure of a miner working on that belt line, by taking one sample once a year? Does anybody honestly believe that? MR. NICHOLS: Do you believe that the number of samples that are being collected now can do enough? MR. MAIN: No. That's what we said at -- we have answered that question time and time again. We have said that the sampling that you guys were doing in 2000 was not enough. That was the total compliance samples on the section was what, then, 36? We're down now to 34, and 4 of them's only this trigger deal, okay? We said then it wasn't enough, and we said we need to get these continuous dust monitors. Now Marvin, I want to respond to the continuous monitors thing, because you raised it, you know, holding up, holding up. You know, I've been working on this project with industry and with NIOSH, I mean, night and day, trying to get this thing done. We've all been beating on the doors. Not as much MSHA, I will say, and that has been a little frustrating. They've been in and out of the picture. But there's a lot of folks put a lot of pressure on getting this instrument built, leaning on the manufacturer to get it done, so we could get a rule that would do this. And it just struck me just very suspiciously why, on the verge of getting the final test done, which we expect in August or September, and getting the full measure of what this thing would do, do we rush a rule out in a time with all these mining accidents, with all these other rules, the belt air rule, the rule on emergency evacuation that totally had the industry preoccupied? It's very suspicious, Marvin. And I'll tell you one thing, it does not give fairness to these miners, who have a right to know what's really going on, and what can be done. Why did MSHA rush this rule out, knowing that this PDM was coming down the pike? MR. NICHOLS: This rule has been worked on at least for four years, and maybe ever longer than that. There is no rush to get this rule out. There's been a timetable for ever since this administration got here. MR. MAIN: There is a train that was coming down a track, that was going to deliver the kind of things I just said that was at hand, for anybody that paid attention. And there's only two conclusions I can draw. With this ready to go late summer, rushing the rule out to beat it to the path is very suspicious. But when you look at it as a broad sense, why would the Agency not wait four months? I mean, delay -- I mean, really, reforms of this thing since the mid-seventies. Four months to get the full details on this and build something around it. In terms of your proposal, you want to give it to A.T. Massey to decide if he wants to let his miners have that, under an optional program, but the option will never be exercised, because what, instead of the quarterly program, Bob? Instead of quarterly sampling? MR. NICHOLS: I don't understand what you're asking. MR. THAXTON: I don't either. MR. MAIN: Using PDM 1's -- MR. NICHOLS: This rule allows for personal dust -- MR. MAIN: This rule allows A.T. Massey to decide if they want to put those on their miners. Does anybody in this room believe that A.T. Massey on their own is going to put those on? Raise your hands? MALE VOICE: Hell no. MR. MAIN: Okay. Does anybody believe that an operator will take a course of putting a sampler on once, to get a plan verification if they're successful, or say no, I'm not going to do that? What I'm going to do, fellows, is, I'm going to put this voluntarily on them. I'm going to go out and buy them, and put them on every coalminer on every shift, 365, 24/7. Now, who believes that? Stand up in this room. It is a fraud, Marvin. There is no personal dust sampler for coalminers to have in any meaningful way in this rule, and everybody knows it. And that's the frustrating part about this. Don't sell us something. Tell us the truth. Tell miners the truth. There is an 8-milligram standard in this rule. There is a standard in here that allows that dust to be jacked up, and you guys, I know you're in a box now, because it doesn't look good here to let the Congress know and everybody else know that what you're going to do is wipe out that 2-milligram standard and replace it with an 8- milligram standard through fuzzy formulas that people can't understand. That's exactly where we're at. MR. NICHOLS: We're not going to do that, Joe. And every time you speak on this, you keep mischaracterizing what we're trying to do with PAPRs. MR. MAIN: I heard what you're going to do with PAPRs, and let us figure out if what you're telling me now is the same as what Bob told us the other day. MR. NICHOLS: I don't expect to change your mind, but here's the way the enforcement process works. The primacy of controlling dust is the engineering controls. If that can be done, PAPRs never come into play. If PAPRs come into play, the protection factor for PAPRs has nothing to do with the 2-milligram standard. Just wait a minute. If operators cannot meet the 2-milligram standard, as Bob says, if they can meet the 2.5, that's what's going to happen. They're not going to be allowed to go to 8. I don't know anyplace in this country, based on our 30 years of experience, where people can't engineer the problem down way below any 8-milligram standard. I mean, -- MR. MAIN: But that's beside the point, Marvin. MR. NICHOLS: But you keep mischaracterizing it. MR. MAIN: No, I'm not. I'm telling you the truth. Let me tell you a case in history. I was there. Jim Walters Resources, 1990. Came to MSHA, says, give us PAPRs, we can't meet the law. Came to me, said the same thing. MSHA was weak-kneed getting ready to do it until we said, you do it or we're suing you, okay? You know what we did? We went in that coal mine, made them put shield sprays that other operators had. We made them redesign the way that the shearers cut. The water sprays on the shearers. The way they controlled the water at the stage loader. The dust out in the best entry that was being dumped on the face was jacking up the dust. We did all those things that wasn't there before. And that operator -- and I've seen the weak-kneedness of this Agency so many times, it scares the hell out of me. We do not trust this Agency to hold the line, giving away the one control they have under the law, that says, no operator, you can't do it. Because what you just told me that you plan to do, you can't do that under the current law. MR. THAXTON: Didn't the Jim Walters situation, Joe, also allow that miners were only permitted specific amounts of time to work on the shearer? That they actually couldn't work the whole time? MR. NICHOLS: I remember the situation. What you done was come up with a Rube Goldberg way of sampling downwind, where you passed this pump off. You didn't know what you had downwind. MR. MAIN: We had a mess on our hands, because the government sat on their butt and let dust control get out of that coalmine until the truth came out, and we had to go in and fix it. And we fixed it with engineering controls straight out. And if it wasn't for the strength of the mineworkers, I can tell you, honest to God, Marvin, that this Agency would have backed off and figured out a way to let them do what they wanted, to keep that mine running without engineering controls. And it would have been the wrong thing to do, because those miners had been sitting in 8 milligrams of dust. Now, a question I have for you. I mean, this is a rule, and let's don't kid ourself. You can sugarcoat it and say it doesn't mean -- it means, straight up, that you can put a PAPR on a guy, you can jack that level up, approved by MSHA, up to 8 milligram in the coalmine that you can't do now. MR. THAXTON: You cannot do that. You cannot jack up dust concentrations, Joe. The rule will not allow them to jack up the 2-milligram standard to 8 milligrams. MR. MAIN: And what stops them? MR. NICHOLS: If you've got control of A, B, C and D, you're not going to be able to take C and D off and use the PAPR. You see? If you're getting 2.5 with A, B, C and D, you're going to maintain 2.5. MR. MAIN: Is there a law that says they can't do that? Or is that based on a judgment of MSHA based on observing what they think the operators are telling them? MR. NICHOLS: That's based on longstanding enforcement policy that this Agency has always used for primacy of engineering controls. MR. MAIN: Now, is this the same enforcement policy that the government had in place that said, we're increasing dust levels because we're concerned -- or dust inspections because we're concerned about the infrequent dust sampling in coalmines, but then, within a short change, says, oh, we changed our mind. Well, we really don't need to do six. We're going to do four now. And by the way, we're not going to even consider those as enforcement samples? Is this the same Agency, Marvin? MR. NICHOLS: This is the same Agency that scrapped up $1.7 million to give miners free chest x-rays, not an action, I think, of an Agency trying to cover up the dust problem. This is the same agency -- MR. MAIN: Is that still going on, Marvin? MR. NICHOLS: This is the same Agency that, up until early to mid nineties, coalminers had no protection over collering and drilling holes on the surface with. MR. MAIN: There is some modest improvements, but when you give me two bucks and take a hundred dollars, I'm the loser. Let's go back to the centerpiece here. This is what this debate's all about. Do we decrease dust levels? And do we increase sampling in this mine? Or do we increase the dust levels in the mine and decrease sampling? The center of the whole debate. And what you guys propose to do is, allow dust levels to be increased in the coalmines, in the mine environment and active workings, and substantially reduce sampling in coal mines to where you have one out-by compliance sample a year, and three section samples at -- all mines, one sample out-by, and at some mines, only three compliance sampling sections a year, as a policy. MR. NICHOLS: But Joe, those three -- those sections that you say will only get three MSHA inspections, you need to be clear your people that the only way they get to that point is because they have demonstrated that they have controlled dust to such a low level that we have good confidence that those areas are protected. And that way it frees up our resources to go to the areas where we think that there is overexposure -- MR. MAIN: In your theory, if you had an honest industry and we all trusted what the operators was doing during those very infrequent days, it may mean something. I can tell you -- MR. NICHOLS: Those are unannounced inspections by the Agency -- MR. MAIN: I can tell you that you guys have been in these coalmines, you have been sampling, under your noses they have cheated. When you're gone, they've really cheated. And that must end. And we're saying, take the goofiness out of this, Bob. Give these guys a personal dust sampler that they can wear 24/7, and let's take the mystery out of it, and let's try to clear up this cheating and the unknowns. Now, do you agree that miners would be better off if they had 24/7, 365 sampling or not? MR. NICHOLS: If every miner was provided with a constant readout, and you allowed them to adjust their schedules -- because you're going to use administrative controls then to control the -- MR. MAIN: Well, see, that's -- the thing of it is -- MR. NICHOLS: Then you would have that, because you're looking at each individual exposure at that point. MR. MAIN: A miner would be in a position to stay out of the unhealthy dust, because he would have a device that would tell him there every day? MR. NICHOLS: It would tell him what his concentration is up to that point, and he could say that I'm about to exceed it, and I need to get away from it. MR. MAIN: And if the operator didn't do something to keep him out of that dust, what happens to the operator, provided you guys enforce the law? MR. NICHOLS: Well, if what's proposed right now, we would say that you have to remove the person from the exposure, take corrective action. MR. MAIN: Over maybe three shifts on the section in some of the mines, one shift out-by, versus 365, 24/7. MR. NICHOLS: The vast majority of MMUs will be sampled bimonthly, with what we have proposed right now. What's in the draft MSHA inspections procedures. Like we told you, the vast majority of MMUs cannot -- MR. MAIN: Maybe this is the best way for me to do this. We understand there's pieces of the law, and we understand the total confusion of this law that people cannot understand, really, until you get down and ask a lot of questions. Over these miners' heads, over our heads, it took you guys to come in three meetings and explain this stuff to us, is how complicated. And you expect the miners and the mining community to understand this goofy rule? And that's what it is. Complicated, confusing. It's a bureaucratic nightmare that's going to sink under its own weight, and you won't listen to what miners have to say. Hold the fort, why can't we get a rule here that says we're tired of this cheating out here, we're tired of this sampling system that doesn't give us accuracy, we're tired of this infrequent sampling system that we have to come up with all these gimmicks and crazy schemes that people don't understand, to try to get you in compliance? We're just going to do something here that's just grandiose. We're going to just sample you every day, and make you live by the standard every day. It seems like the simple solution to me. Why can't we get there? Why can't you listen to the miners, and do what they've asked to do for twenty some years? The number of people dying from this disease, I've got personal friends that died. You know, I seen Mike South struggle through the last years of his life with his lungs chewed up. That's what this is about. We're trying to get these guys out of the dust. Not through bureaucratic, confused rules and gimmickry, but really. And as Carlo said, that's our motive here. We want to end this disease in the mining industry, get these guys out of the dust, and end this problem. Not for you guys to figure out from the bureaucracy how you want to handle it, but for these miners. Give them the power. Give them the understanding, and give them the ability to get out of the dust. And your proposal don't do that. MR. NICHOLS: Well, it allows for it. If the personal dust monitor is developed, this rule allows for that. What we're not going to do is, wait and still accept compliance of these dust plans at 60 percent production. And we're not going to average these samples any more to disguise compliance. MR. MAIN: Baby step. It doesn't fix the problem. And if you'd have waited six months, or -- I mean, get some courage about you. Just say, industry, you're going to do this. We've got all the evidence the darn thing works. Get a little bit of courage there. Technology-driven is the way the rules are supposed to go. Do you have no courage to step up to the plate and say, look, operators, you've had your way for 20 some years, we're going to change the dynamics here, you're going to sample 24-7, 365, and you're going to keep it at the standard, and when you overexpose -- and not these 2.33s, but you go over the standard, you're in trouble, you're going to get these miners out of the dust? A real simple approach. The other question I have, too, Bob. We haven't figured this out. If you have a sampler on, you've got the PAPR on, and it shows up 8 milligrams. When does MSHA actually cite? MR. THAXTON: We do not cite on the continuous dust monitor, if that's what you're -- MR. MAIN: No, no. On the PAPR. Oh, you don't cite on that? MR. THAXTON: Not on continuous dust monitors, no. MR. MAIN: Oh. Okay. MR. THAXTON: It's right there in the thing. MR. MAIN: Okay. I missed that one. MR. THAXTON: And I believe we said that one in our discussions with -- MR. MAIN: But I'm interested in the PAPR issue, because it's confusing. Because when I look through the formula, what it says is, multiply by a factor of four, which if you're -- you know, two becomes eight, okay, with a factor of four. MR. THAXTON: We actually say divide by four. Take the -- MR. MAIN: Or the -- MR. THAXTON: Take the concentration determined by the respirable dust sample, divide it by four, and that's an equivalent concentration that you've determined. MR. MAIN: If that dust -- MR. THAXTON: That tells you what the concentration would have been inside the PAPR. That's the environment in the mine. MR. MAIN: You just answered my question. I'm trying to figure out -- okay, I've got the PAPR on, I'm on this factor four standard, okay, whatever. My dust pump says 7.5 milligram. Would I be cited? MR. THAXTON: I can't tell you, because I don't know what the conditions were that were approved when the operator asked for the -- MR. MAIN: Let's say that the conditions were approved in the plan that operator said. You got 7.5. Would I be cited? MR. THAXTON: I'm asking, though. We don't know what the conditions were. When MSHA comes in, we're going to look at all controls that are in place, whatever level they can attain with all these engineering controls has to be maintained. MR. MAIN: So every standard requires a determination by the Agency, even to get to the point of issuing the standard? Let's assume, like I say, that they say that the controls were in place that were satisfactory, and it says 7.5. Would they be cited under the law? MR. THAXTON: Well, let me ask you, do we have a section right now that you think that if they applied all the controls, that we have a place right now that's at 7.5? MR. MAIN: That's not the - MR. THAXTON: If you don't -- MR. NICHOLS: That is the issue. MR. MAIN: No, it isn't the issue. MR. NICHOLS: It is the issue. MR. MAIN: It's what the operators are going to do, Marvin. It is -- no. I have seen this Agency be reluctant to move ahead to force technology-driven controls, and my fear is that -- what happens when we get into this, what's feasible, all these kinds of things -- the question I posed to you is -- under this rule, I can tell you right now, if they're in excess of 2 milligram -- actually, what, 2.33 now that you guys are using them. I'm confused on what that may be, but let's say 2.33. You would cite the operator? MR. THAXTON: No. MR. MAIN: Okay. MR. THAXTON: On our samples, yes, they would be cited. MR. MAIN: Okay. Now, what I'm asking you, on this proposal, let's say you've got one that gets to the 8 milligram, and it says 7.5 on that factor of four, would he be cited? MR. THAXTON: That's what I'm telling you. I can't tell you, because -- MR. MAIN: Is it possible for them to not be cited? MR. NICHOLS: He's asking you for a theoretical -- MR. MAIN: Is it possible for them not to be cited? MR. THAXTON: You have not provided a complete picture of the section, Joe. I can't tell you, because the section -- if you say right now that there's no place that has 7.5 -- MR. MAIN: Okay. I'm going to try this from a different end, so we clearly understand this, Marvin. Just bear with me a minute. What the law says right now, you can't exceed 2 milligrams on that section sample. Is that law still in effect that says that operator can't exceed that 2 milligrams on that dust sample that he just measured? MR. NICHOLS: Yes. MR. MAIN: So it's illegal. So what you're telling me, if that dust sampler on that miner who's got that PAPR on shows up at 2.5, he's a violation and you issue a citation? MR. THAXTON: If he has a PAPR on and he's at 2.5, and he has exhausted all feasible controls, and that 2.5 has been determined by the Agency to be the level that they can maintain with a protection factor, we will not cite him, because they are providing a supplemental protection to the -- MR. MAIN: Okay. So they wouldn't be cited under the law at 2.5. All right. Let's just go up. Let's go to 3.5. MR. THAXTON: Well -- MR. NICHOLS: Well, before you do that. George, what's the highest dust levels you're seeing on people working farthest downwind on long walls? MR. NIEWIADOMSKI: Well, if you measure -- if you're looking at -- MR. NICHOLS: Don't give me a bunch -- I mean, just tell me a number. MR. NIEWIADOMSKI: Well, we have isolated cases where you're going to have 10 milligrams or higher. You could have, okay. But those are isolated cases, all right? The fact is this, okay, I mean, what's being -- the way it's being characterized that the Agency would allow an environment to be 8 milligrams in 2003. MR. MAIN: Well, you've done that. MR. NIEWIADOMSKI: We never allow that. MR. MAIN: You have so, George. MR. NIEWIADOMSKI: On a consistent basis, we would never allow that. MR. MAIN: You have allowed it. MR. NIEWIADOMSKI: We have -- I -- MR. MAIN: Until we get in and clean things up -- were you involved in the dust study at Trail Mountain? MR. NIEWIADOMSKI: I was not. MR. THAXTON: No. I was. MR. MAIN: Okay. What was the dust levels that we found in there when we went in and put the microscopes on the place, Bob? Do you remember what some of the upper reaches was? MR. THAXTON: No, I don't remember the upper reaches. MR. MAIN: Do you remember 11? Do you remember 12? Do you remember the operators saying, gee, I cannot comply with this standard, I need PAPRs? Do you remember that? That was their initial approach? MR. THAXTON: Well -- MR. MAIN: And do you remember us going in that coalmine, and showing this mine operator who couldn't figure it out for themselves how to change the air flows, how to change sprays on belts, how to change the sprays on shearers to get that mine level down? Do you remember that? MR. THAXTON: Trail Mountain's request was not to use PAPRs. Trail Mountain's request to the Agency was that they had exhausted all feasible engineering controls, and they asked us to come in and take a look, to determine whether they had or not. MR. MAIN: Because they wanted to use PAPRs. I have the documents. MR. THAXTON: That would probably be the next step, that they would come in and ask for that. MR. MAIN: They made it clear. MR. THAXTON: They did not get to that point, because we did go in, Joe, and we did walk down the long wall, and we checked everything out. We said, no, you have not put in all feasible controls. And that's exactly what will happen in this. We will go through, and we will check each person that gets to that point. Each section. And if they have not -- MR. MAIN: But you had the law that said they couldn't, because I recall the discussions. I know there was some weak-kneedness in that Agency whenever that proposal came down again, Bob. And that's why -- I mean, I have these experiences. Some folks was like, gee, what are we going to do here? What are we going to do? How come that existed? Why wasn't MSHA catching it? If we would have had continuous dust monitors on those miners 24/7, those miners would never have been exposed the way they are, and got away with it. MR. THAXTON: You have to realize, at Trail Mountain they were demonstrating compliance for the most part, because of the sampling system that was in place, that you could average samples, and they were collecting the samples on the shearer operator. MR. MAIN: It didn't work, did it? And these changed. MR. THAXTON: Well, you had people working downwind. Just as we showed on that example, Joe, we had three shifts sampled that are below the standard, two shifts above it. Those two shifts that are above, that mine operator may have all feasible controls in place. MR. MAIN: You guys are -- MR. THAXTON: And the average shows compliance. MR. MAIN: I understand. You guys get caught up in all these theories -- MR. THAXTON: Those two samples, though, still showed that people were being exposed to high concentrations. MALE VOICE: Is this I debate or a public hearing? MR. NICHOLS: Yes. MALE VOICE: I'd like to hear from the miners rep. MR. THAXTON: So the two samples that are there, we're saying that if you've got those conditions going on, and that people are being exposed, why not do something to protect the people, if that is as far or as good as the controls can get. Not that we're going to give up and walk away from it -- MR. MAIN: I think we've rolled into a debate, sucking us into the same flawed program, and I think we need to get out of it, and understand two simple things again. What this proposal does is, it increases dust levels, and it decreases the frequency of sampling in coalmines. The wrong thing to do. What miners have said, that you won't listen to them, says, increase dust sampling, get us continuous monitors, and lower the dust levels of exposures. It is our firm belief that we put on these dust samplers that are at hand, that we should go back to the drawing table. We got enough information now to build the rule from, and by the time this test is done, we can be out. MR. REYNOLDS: Joe. In that regard, I wanted to interrupt here. One of the things that we've done in the proposed rule is, we've asked a long series of questions about how you want personal continuous dust monitors used, and we really need to elicit some information from the UMWA and the miners and the operators about what that would look like, how we would use that. And I just wanted to call your attention to the sections there. I don't know if it would be Tim, or whoever would be looking at this, but there are a bunch of questions that we ask on page 10827 about how would you want that program to work, what actions should MSHA take based on what readings we get from the continuous dust monitors. MR. MAIN: I can give you some simple -- MR. REYNOLDS: Okay. But I'm just saying that -- MR. MAIN: Let me apologize, Larry, for not getting to those questions. We are so far behind -- MR. REYNOLDS: Okay. I was just saying that I just want to bring it to your attention and everybody here that we are asking for that. And I think that's part of the reason - MR. MAIN: 24/7, you sample, full shift, you sample. The standard is the standard. We work at lowering that standard instead of increasing that standard. The miner would not be permitted to be in -- as the Mine Act said. Follow the principles of the Mine Act. MR. REYNOLDS: I understand -- MR. MAIN: That data would be recorded at the end of the shift, it would be electronically downloaded to MSHA, so MSHA would have that as a database for all samples. MR. REYNOLDS: Okay. But they're even more detailed questions that we're asking. MR. MAIN: We'll get into the more detailed questions, but I think the first - MR. REYNOLDS: but I'm just trying to elicit that from you. MR. MAIN: We haven't got to the point -- we've got to the framework that you're giving these miners, and we haven't got to the framework that you're even contemplating sampling 365 days at 24/7. MR. REYNOLDS: Right. I just want to make sure, though, that we went -- you know, in the last proposal, we also asked the same questions, and I just wanted to make sure. This is where we really need that kind of detailed information in the rulemaking record. MR. MAIN: I'm going to end end this, because there's a lot of miners here that needs to be heard. But I'll tell you, I think it's totally unfair the way you guys put this rule out, and I think it's unfair the way you hid this whole gimmickry of the quarterly sampling program. Really, it ain't there. You know, one operator -- an operator, one shift a year on plan verification. If he figures out a way to slide the program. You set him up to say, gee, I ain't got engineering controls, make me do it, MSHA. I mean, there's a whole lot of just difficult things. It undercuts the Mine Act in so many areas. Adverse to miners in so many areas. Fails to listen to the historical record and the miners. The wrong thing to do. We need increase in sampling, decrease in the dust levels to protect these miners, so we don't find, like we did 800 and some miners in this last round, and just, what, the last three-year study, 800 and some miners with evidence of pneumoconiosis. You know, we need to end that. We need to quit monkeying around with the program. Thank you very much. And I'll be at the other hearings to talk more about these rules. As I learn more about them, and as we try to educate our miners, I'm scared to death they haven't got a clue about what's ready to hit them as far as this freight train. And we do ask for the rule to be withdrawn. MR. NICHOLS: Thanks, Joe. (Applause.) MR. NICHOLS: I'm going to have to step up and take a break, but we need to keep going, I think. Our next presenter is Joe Marcinik. Did I pronounce that name right? M-A-R-C-I-N-I-K -- with the UMWA? Okay. Okay, Randy Becilion? MR. BEDILION: Hi, my name's Randy Bedilion. I'm a UMWA rep, local 2300 Cumberland Mine. I'm on the safety committee. My last name, B-E-D-I-L-I-O-N. I've been involved in these hearings before now, many of them. I've been able to read rules before, but as Joe and Carl, they touched on this, this is the most confusing rule I think I've ever read, or tried to read in the amount of time we had. Like I said, I've been in the mine for 28 years, and I always hoped that every day things would get better, but some of the things I read in this rule, it looks like we're going backwards. The only thing I can see is that it jeopardizes the safety of us, the working miners, and more or less just benefits the company. In raising the standards, as to the milligrams, they don't have to stay under compliance, which saves them money, which costs our safety and health. That's one of the things that bothered me in reading this rule, the parts I did understand. And in the end, the monitors, we'd more or less get screwed again. Our safety has been dramatically reduced by the wording in this rule, and the number of samples of dust in the air that we have to breathe. By lowering the samples, the only thing that's going to do is you're going to raise what we're breathing. If you don't -- we need sampling. Joe, I can't -- those two acts I'm following, they're kind of hard to follow, Joe and Carlo. But I guess what I want to leave you with, in the past there was a statement made by the UMWA that we'll not go back. And if this rule passes, we've taken not only a huge step backward, but again, jeopardizing the health and safety of the miners. And that's all I really got to say, but other than being confused, and still confused, and seeing that this rule stinks. (Applause.) MR. THAXTON: Thanks. The next presenter. Paul, is it Cutter? MR. CLUTTER: My name is Paul Clutter. It's C-L- U-T-T-E-R. I'm with the local 1197. I work there in the 84 mine. I find this new reg that you're working up here very hard to understand. I've gone over it three or four times myself. Can't make any sense out of it. What I do see is, I'm a 30-year coalminer. I've watched loved ones, friends suffer and die from black lung. I held my uncle's hand while he breathed his last breath. Now you're telling me you're going to permit the standard for dust to be raised? I'm a candidate for black lung myself. And you're going to permit the standard to be raised? You call yourself MSHA, Mine Safety and Health. I would like to see you enforce that safety and health, and not let the operators kill us. I don't know if any of you have ever witnessed someone dying of black lung. It's not pretty. My uncle sat up to sleep, and feared sleep because he thought he might stop breathing while he was sleeping. I have seen firsthand what this dust can do to the lungs. On the side I've worked in emergency medicine and stuff. I've observed autopsies and everything. I've seen firsthand what this black lung can do to the lungs. It deteriorates them. They're just like dust. They fall apart in your hands as you hold them. And now you want to increase the dust that was in the mines. Why? Why are you permitting the abuse of human life? I ask you, as you are called MSHA, to enforce your own title, and enforce safety and health. MR. NICHOLS: Okay, Paul. Thanks. (Applause.) MR. NICHOLS: Is John Masonik back yet? Okay. John Palmer, UMWA. Other room? Harry Powell, UMWA. Barry Cox, UMWA. MR. COX: Hello, my name is Barry Cox, C-O-X. I'm safety committeeman at local 2258. I'm a 30-year coalminer, too. I've lived through my grandfather living and working in the coalmine, my father working in the coalmine. Both of them both died from black lung. My dad had 37 years in the coalmine, always at the face. He was either running a machine or roof bolting. He had to quit work at 57. He couldn't breathe. I lost him at the age of 61. I'm real close to that. He had 37 years in the mine. I got 30. What do I got? Do I got 7 more years to live? We don't know. We can send men to the moon. Why can't they come up with some kind of a detection, a dust detection to put on the machines, just like your methane detector. When it reached 2 milligrams, shut the machine off. Fix the controls. That seems pretty simple to me. I don't know. That's about all I have to say. MR. NICHOLS: You would think it would be simple, but it's been a long time in the process. At the last one, the last comments we had during the 2000 hearings, well, it's just around t