OFFICE OF STANDARDS, REGULATIONS AND VARIANCES ) MINE SAFETY AND HEALTH ADMINISTRATION ) PROPOSED PLAN VERIFICATION/SINGLE SAMPLE ) PUBLIC HEARING ) Volume: 1 Pages: 1 through 316 Place: Birmingham, AL Date: May 20, 2003 BEFORE THE U. S. DEPARTMENT OF LABOR OFFICE OF STANDARDS, REGULATIONS AND VARIANCES ) MINE SAFETY AND HEALTH ADMINISTRATION ) PROPOSED PLAN VERIFICATION/SINGLE SAMPLE ) PUBLIC HEARING ) Holiday Inn North 5000 10th Avenue, N. Birmingham, Alabama Tuesday, May 20, 2003 The above entitled matter came on for Public Hearing pursuant to Notice at 7:58 a.m. PRESENT WERE: On behalf of MSHA: MARVIN NICHOLS, Director, MSHA Office of Standards, Regulations and Variances RONALD FORD JON KOGUT GERALD FINFINGER ROBERT THAXTON LARRY REYNOLDS GEORGE NIEWIADOMSKI INDEX OF SPEAKERS Robert Thaxton.................................. 9 Gerald Finfinger................................ 45 Joseph Main..................................... 46 Deryl Dewberry.................................. 77 Larry Spencer................................... 84 Bob Wise........................................ 87 Leroy Nicholson................................. 91 Jim Brackner.................................... 93 Herman Weber.................................... 96 Patrick Nakamura................................ 101 Dwight Cagle.................................... 106 Larry Bass...................................... 116 James Blankenship............................... 116 Terry Davis..................................... 118 Al Henley....................................... 120 Jason Yearout................................... 120 Stewart Burkhalter.............................. 124 John Wathen..................................... 126 Keith Plylar.................................... 130 Ann Skelton..................................... 157 James Blankenship............................... 160 Glenn Loggins................................... 177 Leslie Golden................................... 181 INDEX OF SPEAKERS (CONT'D) Marshal Hutchins................................ 184 Bobby Jones..................................... 188 Randy Sandlin................................... 191 Tim Burchfield.................................. 192 Randy Clements.................................. 195 LaMarse Moore................................... 201 Ricky Parker.................................... 208 Tom Wilson...................................... 220 Terry Hunter.................................... 237 Jimmy Starns.................................... 239 Rick Jones...................................... 243 Eric Barnes..................................... 246 Bradley Berryhill............................... 248 William Chambliss............................... 249 William Englebert............................... 251 Rickey Kornegay................................. 254 Tim Baker....................................... 262 Richard Mullins................................. 271 Gary Tramell.................................... 273 Richard Mulliins................................ 277 Herbert Cordell................................. 278 Tim Baker....................................... 280 Joe Main........................................ 309 P R O C E E D I N G S (7:58 a.m) MODERATOR NICHOLS: Good morning. 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 hearings. On behalf of Dave Lauriski, the Assistant Secretary 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 and NIOSH single sample proposed rule that was originally published on July the 7th, 2000. Second, we have reproposed the planned verification rule. It was published in the Federal Register on March the 6th, 2003. Your comments today will be included in the record for both proposed rules. The two proposed rules are based on 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 rules published in 2000. These rules are intended to eliminate black lung and silicosis by eliminating miner overexposures They completely change the federal program for controlling, detecting and sampling for 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 our panel. To my left is Bob Thaxton with Coal Mine Safety and Health and MSHA. Next to Bob is Larry Reynolds with the DOL Solicitor's Office. At the end of the table is George Niewiadomski with Coal Mine Safety and Health. To my right is Gerry Finfinger with NIOSH. Next to Gerry is Jon Kogut with the MSHA Policy and Evaluation group. At the end of the table is Ron Ford with the Standards Office. Let me mention how today's hearing will be conducted. The formal rules of evidence do not apply at these hearings and the hearing is conducted in an informal manner. Those of you who have notified MSHA in advance will be allowed to make your presentations first. Following these presentations other 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 record and that you refrain from asking the panel members questions when we're not in session. The reason we do this is that we want all of the discussion concerning these rules on the record. Following the completion of my opening statement, Bob Thaxton will give you an overview of the new proposed plan verification rule. Also, as with the previous hearings, we will work through lunch. We want to give every miner ample time to give us comments on these two rules. A verbatim transcript of this hearing is being taken and it will be made part -- be made available as part of the official record. Please submit any overheads, slides, tapes and copies of your presentations to me so that these items may be made part of the record. The hearing transcript, along with all of the comments that MSHA has received to date on the proposed rules 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're also accepting written comments and data from any interested party including those who do not speak 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. Due to requests from the mining community, the Agency will extend the post hearing comment period for both the planned verification proposal and the single sample reopening from June 4th to July the 3rd, 2003. The notice announcing the extension will be published in the Federal Register soon. As you know, we have one additional hearing scheduled to address these rules. It will be in Grand Junction, Colorado on May the 22nd. The hearing will begin at 8:00 a.m. and end after the last scheduled speaker. Let me give you some background on the two proposed rules. First, the single sample proposed rule was originally published on July the 7th, 2000. It would allow MSHA to make compliance determinations on single sample results. The agency would no longer use the averaging method to determine if miners were being overexposed to respirable dust. Averaging can mask individual overexposures by diluting a high sample with a lower concentration taken on another shift. Using simple-sample measurements rather than averaging multiple samples for compliance purposes will better protect miners' health. Single samples can identify and remedy excessive dust conditions 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 of black lung among coal miners examined under the Miners Choice program during the 2000 through 2002 period. These findings show that miners continue to be at risk of developing black lung 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 the 7th, 2000. The single-sample issue has been through a long public process which is outlined in the preamble of the proposed rule. The second regulatory action is the reproprosed plan verification rule. This proposed rule supersedes the one published on July 7th, 2000. MSHA held three public hearings on the previous proposed rule during August 2000. Many commenters urged the Agency to withdraw the earlier proposed rule and go back to the drawing board. Some commenters believed 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 coal miners since the mid 1970s. After carefully considering all the facts, issues and concerns expressed by the commenters, MSHA is proposing a new rule in response to the comments made to the July 7th, 2000 proposed rule. Bob Thaxton will give us an overview of the new planned verification proposed rule and you can follow Bob's presentation on the screen. We're also posting Bob's presentation on MSHA's web page for future reference. We ask that you hold any questions regarding the presentations until you come up to the table to give us your comments. At that time we will address any questions you have. Bob. MR. THAXTON: First thing, can everybody hear me without the microphone? No problem. I'll speak loud. I'll be walking back and forth and I'll be in front of some of you. What I would like to do is walk through a summary of what the rules provide for. The first thing we want to ask is why are we here. What's the purpose of what we're doing? Well if we look back to 1981 through 2002 we're seeing not much of a change in the prevalence of black lung among active coal miners. This is information that's provided through a combination of NIOSH and MSHA data. If you remember, for about three years, MSHA offered free chest x-rays under the Miners' Choice Program, and at the same time the current program that's offered -- that's been offered to underground miners for many years that you can get an x-ray through your mine operator at periodic intervals, that data is all being combined. And based on that, the 1981 prevalence rate was found to be 4.1 percent and under 2002 we're down to 2.8 percent. Not much of a change. What the Agency is interested in is getting this prevalence of black lung down to zero. We want to push that much lower. We do not want to see black lung being an issue that miners have to deal with. At the same token, what you see in the black boxes under each bar, the percent is the percent of samples that exceed two milligrams for that period, and the number in the parenthesis is the average concentration of the DO samples. This is all based on the operator samples that are submitted to the agency. So you can see while there's been a slight change in the prevalence of black lung, we're only seeing a moderate change in percent of samples that exceed two milligrams and the average concentration of the DO has stayed fairly level, 1.1 to a low of .9. Like Marvin said, this package consists of two rules. One, the single-sample rule and number two, the planned verification. This package is designed so that we will develop effective plans and will have two components, control of dust and the monitoring of the effectiveness of those controls. Under single sample we have a new finding that's being published that says the average concentration can be accurately measured over a single shift. That's contrary to what we currently do. It rescinds the 1972 finding on the accurately of a single-shift sample, stating that we ended up having to use the averaging, and that's why you see us currently taking five samples from five different shifts and averaging the results of those samples to determine whether the concentration is in compliance or out of compliance. Under single sample there is a new standard that's added into the rule. That standard says that the secretary may use a single full-shift measurement to determine the average concentration over that shift that the sample is collected. So when you see us coming in now, we have to come in and collect five samples on five different shifts consecutively to determine what the average concentration the person is exposed to. Under the new proposal, MSHA would be able to come in and collect a sample on a single shift, and if that sample is high, noncompliance is indicated. That allows us then to take action to correct that situation with lower exposures much quicker. Plan verification. Plan verification requires that each underground coal mine operator must have verified ventilation controls or ventilation plan. That becomes part of the approved plan for that particular mine. The plan will be verified under actual mining conditions by operator samples. Part of that under actual conditions. We want to try to increase the production level that the plan samples are collected at so that we get four representative samples of what the true actual mining conditions are. Under the plan verification MSHA assumes the responsibility for compliance and abatement sampling at underground mines. Plan verification only affects underground mines, at the surface there is no change. Also, MSHA samples will be used to set the reduced standards through the courts. As you currently have it, MSHA and operator samples are averaged and combined to determine the percent of quartz so that we can set a reduced standard. This process takes a long period of time, anywhere from 60 to 90 days or more. Under this particular program, all sampling that will be used for establishing reduced standards will be MSHA samples. They will be the last three MSHA samples averaged on an ongoing basis. As we get a new sample, the oldest one is dropped off. So it will be a running average that constantly updates the reduced standard. The breakdown of the different points of the rules. The verification of the plan. What I'm going to do is do a comparison of what you're seeing under the current rules, what's happened right now, versus what the proposed rule provides for. Under the current rule on the verification of the plan MSHA sampling is used to approve the plan. The plan is approved based on the average of multiple samples. The sampling is full shift, eight hours or less, portal to portal. We collect those samples and consider them valid at 60 percent of average production or greater. Now the 60 percent of average production we're going to get into and I'll show you an example of that to see where we're saying that that's not really what we want to do at this time. Under the 2003 proposed rule we will be using operator samples to verify the effectiveness of the plan. Those samples will be full-shift samples production time. That is, that the samplers will be turned on when the miners reach the section. They will not be turned off until the miners are leaving the section. So it's the full-production time that you're on the section will be sampled. It does not include travel time, though. The importance of that is that the plan is effective for controlling dust on the section not in the out-by areas. So because of that, we're trying to evaluate that plan, whether the parameters that they're specifying are adequate or not. So we want to collect the samples the full time people are exposed in the area where that plan is effective. These samples will be collected at higher than average production. Like I said, there's a slide over here that I'll go into what we consider higher than average. We're looking for a -- what we call a DDL. It's a verification production level. And that level is going to be at a higher level than what we're currently doing. There will be separate quartz and coal mine dust verification limits. Currently all you hear is that they meet the respirable dust standard, whatever it happens to be. These particular samples will have to meet two limits, respirable dust and quartz. Under respirable dust, if you take as little as one sample they would have to meet a 95 percent confidence that they're meeting a two milligram standard. To do that on one sample would require a respirable dust level of 1.71 milligrams per cubic meter, not two. The quartz level would have to be 87 micrograms or less, not 100. If they take up to five samples then those samples can exceed two milligrams per cubic feet of respirable dust and no more than 100 micrograms on quartz. Under the proposed plan -- proposed rule rather, the use of PAPRs or administrative controls on any mining unit could be used as a supplemental measure after exhausting feasible engineering controls. The only time that these provisions are allowed to be utilized is once feasible controls have been exhausted. That determination of exhausting feasible controls is left up to MSHA only. That is at the highest level of the agency. It is assigned to the administrative Coal Mine Safety and Health. Information will be gathered, the operator will present his case to the agency, the agency will do evaluations determinations and that'll be reviewed by a panel in Arlington who will report to the administrator and the administrator will make the final decision. Planned information. Under the current rules MSHA sampling is conducted at 60 percent of the average production. Anything that we determine as the average production, 60 percent of that level counts as a valid sample for us. The way we determine average production right now is that generally we talk to the miners and we talk to the mine operators. We just ask people what you normally produce and then we take that amount, multiply it by 60 percent. As long as we have at least that kind of production or greater the sample is considered valid. So you can see that we can actually collect samples and say they had a very low production rate. The operator samples that are collected currently under the bimonthly program, the law only specifies that they have to meet 50 percent of the production -- average production of the last bimonthly period. Those samples also can represent a very low amount of production versus what is normal. Currently there's no records of production required to be maintained. That's why we have to talk to people. We usually ask questions. Very few places do we actually have people presenting a record of what production is so that we can tell what is produced in terms of what these percentages should be. I know the 2003 proposed rule, it requires that the operator collect those samples for verification at the 10th highest production level. The 10th highest production level in the last 30 shifts. From that it equates to the fact that we end up with about the 67th percentile. That is that two-thirds of the shifts during that 30 days -- or 30 shifts will be less than the 10th highest production level and one-third will be higher. We're moving the bar up on where we want to collect samples as far as being representative of what's normal. I'll show you what that 10th highest production level equates to in just a minute. It also requires the recording of production and maintaining those records for six months. Each individual section, long wall, continuous mine or whatever, the operator will be required to record the production on each and every shift and it's not just clean coal. It's raw tonnage, rocks, coal. It makes no difference to us what's mined. The total production has to be recorded. The 10th highest production. Where does that fall and what does it mean? We've put together a chart -- each oval on this bar represents a production shift on a long wall MMU in northern West Virginia. This is an actual situation of 30 production shifts. If we go through and average all of these readings for 30 shifts the average comes out to 6295. That's 6,295 tons average for that section. MSHA samples -- like I said, to collect a valid sample has to be at 60 percent. Well 60 percent of average brings us down here to about 3,700 tons. Anything at 3,700 tons or above we consider it a valid sample. Now keep in mind also the operator samples only have to meet 50 percent of average. So even lower than this. We were asked at one time to look at raising the bar to 90 percent of average. Ninety percent of average gets us to about 55 or 5,600 tons. That's still below the average, though. What this rule does is go to the 10th highest production level in the last 30 shifts. Like I said, that brings us up to about the 67 percent or two-thirds level. The 10th highest brings us up here. We're getting samples collected at about 7,500 tons. That's greater than the average, so it's harder to get. What that does is, that gives us the production that indicates that normal things are going on, that the operators are running the way they should be, that it's representing what kind of actions that are taking place on the sections, that we need controls that actually protect people. The use of PAPRS or powered air-purifying respirators. Under the current rule PAPRS or any other respiratory protection equipment are permitted to be used under 72.700. What happens is, if somebody uses it in accordance with the way 72.700 says, which is to have a respiratory protection program in place, then the operator, if he does get cited for over exposures and people are actually using the respirators, the citation can be classed as non-S&S. Non-S&S ventilation on respirable dust versus an S&S violation is a grade reduction in penalty. The average penalty for a non-S&S violation is about $75 or so. For an S&S violation on respirable dust it can be anywhere from 500 to $1,000. So you can see there's a monetary gain doing that. That's the only allowance that's in the current rules. Under the 2003 proposed rule. It permits the use of PAPRS when all feasible engineering controls have been exhausted. If an operation comes in and they've tried all controls that the agency sees as feasible and they still cannot maintain compliance at that high production levels then they would be allowed to put in the use of a PAPR program. The only ones that are excepted are loose fitting powered respirators with MSHA and NIOSH approval. Currently there is only one unit that meets a criteria and that's the 3M RACAL helmet. The other helmets do not meet NIOSH approval so they are not qualified under this rule. If they opt to use powered air purifying respirators they have to provide a respiratory protection program as part of the approved ventilation plan. The respiratory protection program has to be spelled out in its entirety. There's an example of what a respiratory protection program has to look like in the rule. It's Appendix B under the package that's available. That respiratory protection program has to spell out who is required to be in charge of the program. One person at the mine. Who takes care of the units? Who cleans them, who maintains them? Filters have to be changed periodically, and it's spelled out in there who has to wear them, where they have to be worn. They have to be disinfected between different miners use. So if you're on a section and somebody wears an airstream helmet at the beginning and then you turn around and they say well let's swap out and you put this guy's helmet on, not under this particular program. It has to be cleaned and disinfected before the next person puts it on. All of these things are spelled out in the Respiratory Program, and that protection program has to be incorporated as part of the approved plan. It becomes part of the approved plan for that mine so therefore it becomes part of the regulation for that mine, and any violation of a portion of that program can be a violation of the plan. If the PAPR program is installed the operator must maintain dust levels as low as possible with feasible engineering controls. At the point that the agency comes in and says okay, you've used all of the controls that are available for this particular entity, there's nothing else that can be done. You're able to get the dust concentrations down to 2.2, 2.4, but that's as good as they can get. They cannot change that. They have to maintain all of those controls in place from that point forward. So just because they put a PAPR program in doesn't mean that they take things off and make it easier. They have to maintain everything that the agency has determined is feasible from that point forward. If a PAPR program is put in place a protection factor of between 2 and 4, depending on the ventilating air velocity, is assigned to the mining section. Now this is where it's a little different from what other industries see. We do not assign protection factors to the respirator itself. We assign protection factors to where the unit is being utilized. The reason for that is because we have found through testing that PAPRS are affected by the ventilation quantity that is going past them, the velocity. The velocity as it increases going past the airstream helmet and face shield changes the degree of protection that we can expect from that unit. So with higher velocities protection factors go down. At lower velocities they can get the highest one. Maximum protection factor is a 4, the lowest protection factor is a 2. It will fluctuate in between there based on the velocity on the section where it's being used. For example, the protection factor, what does that mean? If you're assigned a protection factor of 4, that indicates that the air being breathed by the miner is one-fourth the concentration of the air outside PAPR. If you're in say a 2 milligram atmosphere, the environment in the mine is at 2 milligrams and you're wearing a PAPR, the affected environment inside the PAPR would be 0.5 if the velocity is less than 800 feet per minute. I'm sorry, less than 400. Sampling requirements. Under the current requirements operators collect bimonthly compliance samples at underground mines. Those samples can result in a citation for failure to submit if they fail to submit the required number. Also it can result in citations issued for exceeding the applicable standard. The operators' sample also collects abatement samples to determine compliance after a citation is issued. If we issue a citation, the operator collects those samples to show whether they're back in compliance or not. MSHA quarterly will sample MMUs, Section DAs and Part 90 Miners. That's our current sampling program. Citations can be issued for exceeding the applicable standard as well. Now the citations that are issued for exceeding the applicable standard on both the operator and MSHA samples are based on the average of five samples right now. We have to take five samples and the operators have to take five samples. So we get a situation where we're averaging those five samples instead of as we said in our current rule proposal that we want to do this on one sample. The 2003 proposed rule, the operator will still be collecting samples but they will be collecting samples to verify the plan initially and then designated MMUs will collect one sample each quarter to confirm the continued effectiveness of the dust controls that are in place. No citation will be issued for exceeding the applicable standard. These samples are determined for information purposes, to find out whether the controls are working. We're not interested in determining compliance and noncompliance at this point. So there's no citations for exceeding the standard based on those samples. However any sample that the operator receives, the operator must take action to reduce concentrations when samples exceed the standard. So even though we're not taking enforcement action by saying that you have to -- that'll you'll get a citation for overexposure, any samples that are collected under this program by the operator that indicates a level exceeding the applicable standards, the operator has to take action to reduce those concentrations and record that information. Failure to take that type of action can be a citation, the same as we do right now for reading as we do for methane. An operator goes in and does their own testing and they find methane levels greater than two percent, they have to report it and they have to show what action they're taking to reduce those exposures. If they don't take action then they can be cited for failure to take action. We would do the same thing under the dust. MSHA collects samples to determine compliance and abatement of citations under the proposed rule. Only MSHA samples will be used for that purpose. All of our determinations will be made on single full-shift measurements and citations will be issued for exceeding the applicable standard. We'll have some scenarios at the end where we walk through a couple of situations where this would be taking place. But all of the MSHA determinations will be based on single full-shift measurements. Making compliance/noncompliance decisions. Under the current rule we average multiple samples to make compliance/noncompliance determinations at all coal mines, surface and underground. There's no change. That's what the current rule is. There's no difference between the two. The average of five samples on five different shifts is used. If the average concentration exceeds the applicable standard by one-tenth or more noncompliance is indicated. Under the 2003 proposed rule single-sample determinations at all coal mines, surface and underground. This is the one area single-sample affects all coal mines, surface and underground. So single-sample determinations will be affected on surface as well as underground. Noncompliance or citation levels will be 2.33 on a 2 milligram standard. What that does is, it gets us to a 95 percent confidence that the 2 milligram standard has been exceeded. Remember now, we're basing our determinations on one sample collected on a single shift. Based on that one sample, we have to have confidence that we're exceeding the 2 milligram standard at 95 percent in order to be able to substantiate a citation in the court. That 2.33 gets us to that level. Now that's the same thing as what you see on the current noise program. When people come in and take a survey for noise, we cited 1.32 for 132 percent. That, of course, is 100 percent. It's the error factor that's factored into the type of sample that's done. It's the same thing that's done in OSHA, metal and nonmetal mines. This is the norm of how citations for noncompliance is determined. At the same token because of the single sample that we're using, we get to this high level of confidence that's we're exceeding the 2 milligram standard currently because we're taking multiple samples and averaging them. We're going to show you why we have problems with that averaging. The citation levels are specified in the plan verification rule. We can actually go into the rule language itself, and if you're on a reduced standard, it tells you exactly what level if it's exceeded will be a citation level. Like I said, we have problems with the averaging. What we currently do is, we take five samples from five different shifts. What this is, this is an example of an actual survey submitted under an operator sampling program. We have five samples collected on five different shifts. The first sample collected on the continuous miner operator was 3.2. The second sample, 1.6; the third sample, 1.5; the fourth sample, 0.8; the fifth sample, 3.1. If you average all five of those samples the average is 2.0. The section is in compliance and no action can be taken to correct for these two shifts that people have exceeded the standard. Those shifts of overexposure are what we think is driving the reason we still see black lung at the prevalence rates that we see it today, that we're not effectively reducing that prevalence rate to zero. We have people being exposed, even on sampling shifts, which are considered to be the best times because if an operator is collecting samples, he knows he's going to be sampling his section. At the best times, he's still showing overexposures, but yet because the average of those five shows compliance there's nothing being done about it. Under the current program, when we take the samples and if we see a 3.2 or a 3.1, even though you may have a 0.8 in there, the 3.2s and 3.1s would result in action being taken. There has to be something done to reduce that exposure. Reducing exposures on each and every shift is how we think that we will end up reducing the prevalence of black lung. On-shift examinations with controls. Under the current rule, we have a rule under Part 75 that says that you have to conduct an examination of the dust controls that are spelled out in the plan at the beginning of each shift. Now if it's a situation where they cannot actually shut down, then you have to do it within the first hour of the next shift. Right now those two programs -- that examination is on the planned parameters that are in place. The planned parameters right now are just minimum controls. They're the minimum levels. A lot of places you'll go to you'll see that the plan may only call for 10,000 CFM of air, but when you go up on the section they may actually have 25,000. The plan may call for 50 PSI water pressure and they may actually have 75 or 100. They may call for 25 sprays on the miner and they may have 35 sprays on the miner. The plan is just minimum controls, and when this examination has to be conducted, they have to be meeting those minimum control parameters. The 2003 proposed rule maintains that requirement to do that on shift check. However, the change here is that the plans are no longer the minimum that you see right now. If an operation takes samples to verify the plan and the plan shows that they need 25,000 CFM of air to meet the limits at the verification reduction limit, that 10th highest production level, if they show that they have to have 25,000 CFM to do that, that's what has to be on the plan. And when they go in to do any verification sampling, any quarterly sampling, the samples cannot -- the samples have to be collected at a time when they're meeting the EPO or a higher production level and the controls that are in use at the time the samples are collected cannot exceed 115 percent of what's in the plan. So if their plan calls for 100,000 CFM of air, they cannot have more than 115 on the section on the date that we take the samples. What we're doing is, we're pulling the planned parameters to where they -- when the samples are collected they are more representative of what's actually going on, so that when we have a determination made that they're meeting the 2 milligram standards we have good reason to believe that that's true. Miner participation. Under the current rules miners have a right to accompany, with pay, MSHA personnel during MSHA sampling. There is no guarantee of MSHA participation under the operators' program or operator sampling. For plan, operator notifies the miners' rep of planned submission or revisions and post them on a bulletin board. The miners' rep may submit comments during the MSHA review. That's under the current rules. Under the 2003 proposed rule miner participation during operator sampling. This is the verification sampling and if there's a requirement for quarterly sampling. The operator has to notify mines of the date and time prior to verification of quarterly sampling. They have to post it somehow to get the notification to the miners to let them know in advance that sampling will be conducted on a certain date and time. And the miners must be provided an opportunity to observe the sampling, but there is no entitlement to special pay. So it's not like the walk-around rights with MSHA personnel. This is if you want to observe that sampling you have a right to do that, but there is no guarantee of pay. Miner participation during MSHA sampling. Miners would continue to have the right to accompany, with pay, MSHA personnel during compliance and abatement sampling. If MSHA is in there doing compliance sampling, routine sampling, you still get the walk-around rights. If we have to come back and do an abatement sampling for a citation, you have the same walk-around rights. The operator. As far as the plan, the operator still notifies the miners rep of the plan submission/revision and post on the bulletin board. Miners rep may submit comments. It's no different from what we currently have. Even though we're getting better plans, it becomes more important though to hear from people as to what they think of it. If you comments or problems with the submission because it's available, you can submit those -- that information to the district while the plan's being reviewed so they can be considered by the district. Use of personal continuous dust monitors or PCDMs. The current rule, there is no consideration for use of personal continuous dust monitors. There's only one type of unit that's allowed under the current rules. It's a metric unit that's approved under Part 74 of our regs. It has both NIOSH and MSHA approval. The 2003 proposed rule allows any unit that the secretary of labor approves for the conversion factor as being acceptable. What this does is, it allows the agency to say okay, if we have something like the PDM1 that's being shown and talked about lately, if that unit becomes available and they establish a conversion factor for that unit that converts the unit's measurements back to MRU equipment -- which is what the 2 milligram standard is based on -- then we can approve that through the secretary of labor and it will be allowed to be used. People that would use the personal continuous dust monitor that's opted. Designated miners would have to wear the unit full shift, portal to portal. Personal continuous dust monitors are just that. They're monitoring an individual, so you monitor portal to portal. Permits an operator to use administrative controls without first exhausting feasible engineering controls. Again, because you're going to personal continuous dust monitoring you're monitoring an individual. Because you're monitoring individuals, how people move within the mine affects the dust concentrations. So an operator that utilizes a PCDM, personal continuous dust monitors, would be allowed to utilize that administrative control. Again, no citations for overexposure based on those readings. Those readings would have to be reported, but there's no citations for overexposure. However, again, the operator is still under the requirement that any indication of an overexposure requires the operator to note it and take action to reduce that exposure. Failure to take the action to reduce the exposure from that point forward could be a violation. Benefits from these two rules being together as a package. One is that we get plan parameters that reflect actual mining conditions that have been verified at high production levels. We're getting plan parameters that actually will have 95 percent confidence that they are going to control the dust at 2 milligrams and 100 micrograms respectfully for dust and quartz. We're also getting it collected at production levels that we consider are closer to normal, so that we have normal actions, normal duties being conducted on that section. There will be no operator collected samples used to determine compliance. So you get samples being collected by the agency only. It provides for protection for miners when feasible engineering controls have been exhausted. Like we showed you on the example of the averaging, we have situations right now under the current program when people are saying they're in compliance with meeting the 2 milligram standard, but yet you have individual shifts where people are being exposed to high concentrations. If that situation is representative of exhausted feasible controls, then we need to do something and recognize those shifts that people are overexposed and provide some other controls so that they can be protected. Protecting miners on each and every shift is how we're going to reduce the prevalence of black lung disease. It provides for the use of personal continuous dust monitors. Under the current program, like I said, there is no provision for their use whatsoever. Under the proposed rule, operators would be allowed to elect to use PCDMs if they found it beneficial for their particular mine. We say these rules are to reduce the prevalence of black lung, CWP. What we've done is, we've taken the data that's available to us and made a conservative estimate of what kind of reduction in black lung that we would see, and based on that we have broken this out under the DO, designated occupation; NDOs, non-designated occupation such as the shuttle car operators and roofbolters. Breaking out the current data with the conservative estimate that we've applied, we bring up the -- we reduce by 42 the number of cases of CWP through the application of these two rules. For some people -- they've made the comment that that doesn't sound like a lot of cases. Well if you're one of these 42 cases that's important. We've said that this is a very conservative estimate. We have to work on the data that's available to us. Realize now, the data that we have available to us does not represent what we're looking for as far as the controls that are in place to get 95 percent confidence that we're meeting the 2 millimeter standard. It also doesn't have the effect of single sample because those things have not been applied yet. So this is based on data based on the current information that's available to us. Like I said at the beginning, we've got three scenarios that I would like to walk through now. This is to give you an example of how the program would work. Under the first scenario you've got an operator that submitted a plan for your particular MMU. It's continuous miner section. It takes verification samples. Now we have limits that are set up for a single shift. That single shift, though, the operator will collect multiple samples. On a continuous miner section we're sampling the miner operator and roofbolter. So we're getting two samples in one shift. The single-shift criteria for getting a plan verified is 1.71 milligrams of respirable dust and 87 micrograms per cubic meter on quartz. The operator takes his first verification sample. We give 1.60 on dust for the miner operator, 1.7 on the roofbolter. Both of those are below the 1.71 dust level, so it's okay. Quartz, the miner operator gets 72 micrograms and the roofbolter gets 92. Ninety-two exceeds 87, so we have a problem. The controls are not showing us with 95 percent confidence that we can say is actually protecting people. The operator is required to look at his plan and collect a second verification sample. The second shift of samples result in 1.63 on dust for miner operator, 1.69 on the roofbolter, 71 micrograms on the miner operator reports and 91 micrograms for the roofbolter. The second day or second shift of samples we have different criteria now because now we have two samples to look at as opposed to one. The criteria for verifying the plan with 95 percent confidence based on two shifts of samples is 1.85 milligrams on respirable dust and 93 micrograms on quartz. If we look up here, all four samples of dust and quartz, none of them can exceed the limits that are stipulated for two samples and none of them do. The respirable dust, all the concentrations are below 1.85; all the quartz results are below 93 micrograms. Based on that, two shifts of samples gives us 95 percent confidence that the planned parameters as proposed and sampled will provide protection for the miners. What we've done is, we're saying that the plan is verified. After the plan is verified, MSHA then will call samples, and we come in for our first bimonthly sampling period. MSHA comes in and we collect five samples, miner operator, miner helper, shuttle car operator, roofbolter number 1, roofbolter number 2. We get respirable dust on the miner operator of 1.62 milligrams per cubic meter with 78 micrograms quartz, miner helper 1.71 milligrams of dust, shuttle car operator is 1.41. That's in the wrong column. Roofbolter number 1 gets a 2.38 dust, 138 micrograms of quartz, roofbolter number 2 gets 2.42 milligrams of dust, 141 micrograms of quartz. Based on this survey, one shift, one sample day, MSHA determines the roofbolter occupations are exceeding the 2 milligram standard. They both exceed the 2.33 citation threshold values that we talked about earlier. The 2 milligram standard, 2.33 or greater, is considered noncompliance. So we have shown through our sampling on this one shift that the roofbolter is not protected. A citation is issued for the roofbolter occupations. We issue one citation. The roofbolters are both working on the same machine. The one citation will affect the change for both operators. So we only issue one citation. The operator must take corrective action and notify MSHA within 24 hours that that action has been taken. What that is for is so that the agency then will schedule to come back in to do abatement sampling if necessary. On this situation we are going to take abatement samples. We do not come in, though, at the end of the 24-hour period if the operator notifies us. The operator has to notify us of when that action is being completed. The agency then will come in unannounced to collect the abatement samples. Therefore, the operator, once he puts them in place, it's important that they make sure that they maintain everything until such time as the agency comes back in to do that follow-up sampling. So there's no requirement that we come in when the operator notifies us that he has the controls in place. So there still is no prior notification of the agency's impending inspection. MSHA comes in and collects the abatement samples. Now at this point there's another consideration. We've shown that the miners on this section, some of them are being exposed to high quartz levels. They're on a 2-milligram standard. High quartz levels at a 2-milligram standard indicates to us that people are potentially being overexposed because of quartz and we need to address that situation quickly. Like I said at the beginning, all quartz determinations for setting a reduced standard are based on MSHA samples only and it's based on the last three MSHA samples collected. Well this is the first sample -- set of samples that MSHA has collected and we sample bimonthly normally. From the looks of it, you would think that we would go another four months before we get enough sample to determine what the quartz level truly is to get three samples to average together. We don't. In conjunction with these rules, the agency has put its inspection procedures that will go in place with this particular rule that went out the way it's proposed. They are on our website for people to look at so that you can see how we would address these situations. It'll give you a better idea of how to comment on the proposed rules. Under our proposal, we have stipulated that when we come across a situation that somebody's on a 2-milligram standard, and we get an indication of high quartz levels, we are not going to sit back and wait until the next bimonthly period to collect those samples and make that determination. Instead the agency will schedule within the next 15 days to go in and get two additional shifts of samples so that we can average those two shifts with the shift that we already have to get the three samples necessary to determine what the quartz percentage is and set an appropriate standard for that particular occupation so that we can address that sooner. In addition, because of the concentrations that MSHA found during this particular survey the operator is going to be designated to collect quarterly samples to establish whether the planned parameters continue to be effective. Now when the operator collects quarterly samples they are under the same criteria as when they collected initial samples for verification. Samples have to be collected at or above the verification production level. That's the tenth highest level or higher that cannot exceed the control parameters by more than 115 percent as what they're specified in the plans. Those samples have to be collected full shift on production time. That is, they're turned on when they get to the MMU and they're turned off when they leave the MMU. Those samples are sent directly to the agency for a determination and they have to meet the standards as stipulated for that particular entity. Under our inspection procedures the way the operator gets established as requiring quarterly sampling is if they exceed any of the applicable standards they will be kicked in to quarterly sampling. The second scenario. To keep from going through a lot of changes, the first part of this is the same. The operator submits a plan, it's collected. The verification sample is the exact same samples that we had on the previous example. The plan is verified after two samples just as we said before. What changes here is taking the MSHA survey. That will change the results that we see on this MSHA survey. Miner operator gets 1.62 on dust, 78 micrograms on quartz, miner helper gets 1.61, shuttle car operator 1.21, roofbolter number 1 1.41, dust 55 micrograms on quartz, 1.48 on roofbolter number 2 with 47 micrograms of quartz. We don't show a quartz problem on this section now. Nobody's over the limits on quartz. Also, all the respirable dust samples that we collected are under the single-sample limits as far as citation purposes. Nobody exceeds the 2 milligram standard, the 2.33. So compliance is based -- is determined based on this single shift of samples. However, there's a second part of this for the agency. Under our inspection procedures, we've stated in there that any operation that is able to maintain compliance with 95 percent confidence on our single samples or any operator samples, that we will skip every other bimonthly period of MSHA sampling. Now, we're not looking at just the sample results and walking away. As I've said, MSHA samples are coming in, we're collecting samples unannounced. The chance that the operator is going to be at or above the production level that is set for verification, that is the tenth highest or higher -- we have a 33 percent chance that we're going to be at that point. Two-thirds of the time we're less than that. Chances are they are going to be at lower production when we come in to take our samples. Inn addition, MSHA samples are specified to be collected eight hours portal to portal, not full shift. So if you're working eight hours on the section and traveling half an hour each direction, your total shift is nine hours. The agency will still put the samples on you when you go underground and they will come off and be transported to the outside at the end of eight hours. So they will not be full shift. In that situation MSHA samples are going to be looked at though to determine whether we will make a trip back to the mine the next bimonthly period to sample again. We're looking for mines, though, like I said that meet the levels for single sample, that's 1.71 milligrams on respirable dust and 87 micrograms on quartz. If all samples meet that criteria, they've met the first step of skipping the next bimonthly period because we have a high degree of confidence that these samples are showing compliance and that the controls are working. However, because we are making that determination of a trip back to do another survey, we want to be sure that we're erring on the safe side. So, like I said, the production is probably less. In this example, I'm going to put the MSHA samples are reflected at 750 tons. The plan was verified, though, at 800 tons. The 800 tons represents the tenth highest productions and we're slightly below that. The ventilation during the MSHA sampling was 10,000 cfm, the plan calls for 9,800. So I show an increase in ventilation. At the time the samples were collected I show a lessening of the production during the MSHA sampling. Now the combination of those two things drives our sample results lower. So to compensate for that, we calculate a factor for production and for ventilating air quantity that we apply to the dust concentrations that we measured to determine whether we're going to make the decision to come back and sample the next bimonthly period or not. Now this section looks like it's well in compliance. It's meeting well below the 1.71 milligrams per cubic meter on dust and it's well below the 87 micrograms on quartz. However, if we take the factors that we're developing for production and ventilation, I'm taking the planned quantities and dividing it by quantity of air -- the velocity of air that we had -- I'm sorry, the production of 800 tons that we had during the plan versus the production that we had during our sampling, it gives me a factor of 1.06. You take the 10,000 cfm divided by 9,000, it gives us a factor for ventilation of 1.02. We take the highest dust concentration and the highest quartz concentrations that we found during our sampling, multiplied by those two factors and we come up with 1.62. Maximum dust concentration now becomes 1.75 and the quartz of 78 micrograms becomes 84 micrograms. Remember, I said we want them to meet 1.71 and 87 micrograms. Quartz is below the 87 micrograms. The respirable dust exceeds the 1.71. Because of that, this section will be sampled the next bimonthly period, because we don't have high confidence that the dust control measures are truly protective at all times. Now that's a calculation of everything that's only done by the MSHA inspection personnel. This has no bearing on determining compliance, it has no bearing on what you see as the dust concentrations on the sections. It is only a method for us to determine whether we need to come back in and do a subsequent sampling on the next bimonthly period. The third scenario is the use of PAPRs. We've taken a situation as an example, Mine A. It's a long wall mine. They have installed the shearer clearer shield sprays and hand sprays. They have a maximum air velocity of 500 feet per minute and their verification production level is 16,000 tons. For demonstration sake, we're going to say that this is representing all feasible controls for this long wall. The agency comes in and makes the determination that that is all feasible engineering controls for this section. The dust concentrations during the verification sampling produced a shearer operator highest concentration is 1.9 with 130 micrograms of quartz. The 060 occupation, which is the occupation working furtherest downwind on the long wall section had 2.0 milligrams and 145 micrograms of quartz. From this, you can see that we're meeting 2 milligrams on respirable dust but the quartz level is exceeding 100 micrograms. So we have to do something to address that. We've exhausted all feasible controls. There's nothing else left that will address the situation. The agency has made that determination. The operator says I'm going to put in a PAPR program. Because he wants to put in a PAPR program, the full program must be included with the ventilation plan. Like I said, this is where he has to specify. Who wears the units? Where are they going to be worn? Who's going to clean them? Who's responsible for the programs? All of this has to be spelled out. Training for the miners that are actually using the unit. All of this is spelled out in writing in the program and it has to be made part of the approved plan. In this particular situation, we're saying all miners working in by the shearer must wear PAPR in accordance with the approved plan. If that's required in the plan, then miners working downwind of the shearer all have to wear PAPRs. Failure to do that will be a violation of the plan and will be cited as such. The average velocity across the long wall is 490 feet per minute. Like I said up here, the maximum is 500, but the average is 490 feet per minute. The protection factor assigned to the MMU is going to be 3.2. Remember I said the protection factor is going to be between 2 and 4. The way we determine the protection factor is to take the quantity 2 times 800 divided by 490. The 800 is the velocity that you go to as the max and 490 is what we actually have on this section. Two times that quantity gives us the protection factor of 3.2. So on your particular long wall or section, if somebody is going to use PAPRs and you want to figure out what the protected factor would be, it's simply taking the velocity on the long wall face, and if your velocity is 1,000 feet per minute, you would put 800 divided by 1,000. Now anything above 800 goes to 1 or greater. The maximum protection factor is 4. So you can see when you get above 800 there is no need for multiplying anything out -- I'm sorry, if you go to 800 or above it becomes 1. Your protection factor is 2 at that point. When you go down to 400 as your velocity, 800 divided by 400 times 2 will get you to 4. So anything at 400 or less is going to be at the maximum protection factor of 4. The plan, though, will require that we maintain all engineering controls that were determined to be feasible by MSHA. So at the point before we actually say that you could use a PAPR, all the controls that were in place -- and we're saying the controls represented here are all the controls that were in at this time. All those controls have to be put into the plan and they have to be maintained at all times. They cannot remove them or reduce them. In this situation, the equivalent concentration is a 2-milligram concentration. It would be .62 milligram per cubic meter. That's 2.0 divided by the protection factor of 3.2. So effectively inside the air helmet a person would be breathing an atmosphere of .62 milligrams per cubic meter versus the exterior which would be 2 milligrams per cubic meter. That concludes the overview. MODERATOR NICHOLS: Okay, thank you, Bob. As I mentioned in my opening statement, for the single-sample rule, which is designed to eliminate the averaging of samples that Bob covered there, MSHA and NIOSH are partners on this. I would like to ask Gerry Finfinger to make some statement and also give us an update on the development of the personal dust monitor. MR. FINFINGER: Thank you. Can you hear me in the back? VOICE: Yes. MR. FINFINGER: Good morning. On behalf of NIOSH and our Director, John Howard, and our Associate Director for Mining, Lou Wade, I would like to welcome you to today's meeting. We're here today to listen to your comments, and I think you for attending. I'm going to give you a brief update on the personal dust monitor which we refer to as the PDM1 that we have been developing under a research contract. We completed the initial design sometime during the year and we have six prototypes that were manufactured. We finished the lab testing with successful results and we're scheduled to start the in-mine testing in the next couple of weeks. I have a picture of the unit, which I'm sure you can't see from there, but I'm going to pass it around when I'm done. The unit is combined with a cap lamp and a battery pack and provides data on respirable dust exposures during the shift. The unit gives current exposure data, as well as can be used to project the exposures to the end of the shift. I thank you for being here and I'm looking forward to a productive meeting. MODERATOR NICHOLS: Okay, we want to take about a 15-minute break until 9:30. For those of you in the back, when you come back in, there are some seats up front here if you would like to come up and have a seat. (Whereupon, a short recess was taken.) MODERATOR NICHOLS: Our first speaker will be Joe Main. Joe is the Occupational Safety and Health Director for the United Mine Workers. Joe. MR. MAIN: Thank you, Marvin. My name is Joe Main, M-a-i-n, and I represent coal miners. (Applause.) VOICE: Tell them, Joe. MR. MAIN: I would like to start off this morning -- and we've got a lot of people that wants to provide comments on this rule today and I want to try to shorten my presentation up here a little bit. But I find myself in the same position I have at the first four hearings, and that is trying to give some kind of a clear picture about what this rule does. As you know, Marvin, I have been critical of the presentation that MSHA has given because I think it really fails to paint the true picture of what this rule actually does. There's a lot of miners in here this morning, and for some, it's the first opportunity they have to really learn about this rule. And we've used the rulemaking process to even learn more about the rule as we go through. Needless to say, we're finding out more things by sitting and listening to exchanges that's taken place over the last four hearings. Before I get into that, I would like to make everybody aware of where we're at and the significance of this particular public hearing. A little over a year and a half ago we had the worst mine explosion that this country has seen in 17 years when an explosion ripped through the Jim Walter's Number 5 mine in Brookwood, Alabama. When the explosion ended 13 miners -- 13 of our brothers lost their jobs -- lost their lives in that explosion. As we all sought to figure out what went wrong and why we lost so many lives in that explosion, we found that one of the significant factors as found by MSHA and the Mine Workers was float coal dust in that coal mine. Float coal dust that helped propagate an explosion with massive forces that were so destructive at the end. As I said, 13 miners lost their lives. Now what is so troubling is, we reflect on that today and as we look at what we're about to talk about here in Alabama, we find that the government has issued a rule which will as a direct result increase the dust levels in the coal mines in this country. And I think, you know, when you put those two things in perspective for miners, that's a bit outrageous. We keep questioning how did we get here and what's this rulemaking really all about? You can't escape the fact that what this rule actually does is allow mine operators to legally increase the concentrations of dust in a mine's environment. Where you have little dust there's big dust. And, of course, this rule aims at addressing the amount of respirable dust that will be in the nation's coal mines. And we don't think there's a device yet that separates little dust from big dust as it -- you know, as it's poured into the atmosphere. If such a device exists we would surely like to know about it. We could surely use it. But it is said that we're here talking about a proposal that in essence increases the dust levels in the nation's coal mines. We've found fault with MSHA's presentation with respect to what this rule does or does not do, which excludes the information that miners should have about the impact of this rule. It is unquestionable that this rule by its application will end a standard practice created by Congress in 1969 that said very straightforwardly mine operators, you cannot have more than 2 milligrams of respirable dust in the mine atmosphere. What this rule does, it turns that standard on its head. And by the responses that we've gained from MSHA in pursuing the real impact of this rule, we have found that mine operators would be allowed to increase the dust levels legally in coal mines up to as much as eight milligrams. And that MSHA, when they find those legal eight milligram levels that would be approved by the agency -- could be approved by the agency, that the agency would not even cite the mine operator until the levels reached -- I believe it's 9.32, if I got it correct this time with what we were told by the panel. Those are significant points. Those are significant pieces of this rule that I think is somewhat outrageous of the government not to explain those in detail and force the miners and the representatives to come forth and to have to extract that information from the panel. What this rule does is, it allows mine operators to use a faulty respiratory that's been shown faulty by miners -- by those in the industry, that cannot be used in it's approved fashion and be worn comfortably by miners, which is laid out in testimony fairly clear -- as a tool to allow mine operators to increase the dust levels. Now we've had debates over the last number of hearings where the agency said well we're really not going to do that, but what gives us trouble is the fact that we now have a legal bar that don't let you do it, don't let you approve those, and we have to rely on a trust-me from the government, that as I've said before, you'll be stiffed back when mine operators come forward requesting plan to use the so called PAPRs, these leaky respirators, to allow them to increase the dust levels in the nation's coal mines. Whether it's up to three milligrams, four milligrams, five milligrams, six or eight, those proposals under this rule is coming your way. And for those that say, well, that's just not going to happen, you haven't studied the history of this industry. And for those to say well, we're really not going to do that, we're not going to approve those, have not studied the history of this industry. As I set and watched the panel respond to this over the last four hearings, what you've asked miners to do is trust us, we will not allow operators to increase those dust levels. Well the sad reality is, they've got the open door to do it. The panel sitting here today will not be in the decision making as to whether approve or deny those requests. Other people will be sitting there. And it could be like today's current environment where we have a lot of industry folks appointed to these positions that will be making these critical decisions. We have raised concerns about the current leadership coming from industry that's now running the agency, including the position currently held by the chief of safety in coal who rides herd over this dust sampling program. And for miners, you darned right, we're suspicious about that. When we see proposals coming down from the leadership of this agency who are in large part hired directly out of industry to these positions it makes us far more nervous. Is this the right thing to do? Absolutely not. Who says that? Miners say it, NIOSH has said it, a federal advisory committee has said it, and most importantly, Congress said it loud and clear when they created the 1969 Coal Mine Act. They said mine operators, you've got three years to get to two milligrams as far as the dust concentrations in the mine environment and the active workings, and you're going to do it by engineering controls. And, by the way, it explicitly said you're not going to do that using respirators. What your rule does, as I said, is it turns that whole law on its head. It contradicts the clear direction that Congress gave this agency in developing rules and in carrying out the mandates of the miners. Now I'm just beside myself to figure out how we actually arrived here. In 2000 MSHA proposed changes to overhaul the respirable dust sampling program in the nation's coal mines, and that was following many recommendations and mandates to do so. When MSHA issued a set of proposals, those proposals at the end of the day was soundly rejected by both labor and industry. The sad realty is that the proposal we have today is built off of that same frame, only worse. With respect to sampling in the nation's coal mines. Miners have said for many, many years -- and you can go back and look at the historical record, back since the beginning of the Mine Act -- that there was a need to have constant sampling in these coal mines so that the dust levels could be maintained at a healthy level for miners through the course of their working careers. Miners don't want to get black lung. Miners don't want to have to spend their remaining days attached to an oxygen bottle while, you know, other normal people are out enjoying life. They don't want that. But they've seen through their own eyes what's wrong with this system, and for decades they've been trying to convince the federal government what they need to do to fix it. They need to lower the dust levels so these miners will not get black lung and they need to be in those mines, or have systems in mine to constantly sample the coal mine dust to make sure that the mine operator is not exposing them to unhealthy levels of dust. It's a pretty clear message. It seems like every time we get into a process of reforming these standards to get that done, we wind up with a completely different idea or proposal. As I said, in 2000 miners laid out a pretty clear case about what they wanted. They wanted the dust standards lowered, they wanted frequent sampling, they wanted continuous dust monitors that they had been calling for for nearly three decades now, and promised time and time over that they would build those devices and get them in the mines to fix that problem. They want sampling for the full shift, not partial shifts. Samples for whole exposure. We want to know what dust we're actually in as we work in these mines. They asked for full miner participation. Why did they ask for that? Real clear. There is a long record of corruption in the dust sampling program in handling and monitoring dust in the nation's coal mines. And who could better help monitor that and make sure the system is run right than the coal miners and their advocate representatives? The miners asked for a federal takeover of the sampling programs for years, what they didn't ask for is a give-a-way of the compliance sampling program. You know, as we look through the proposals, in each one of these cases the agency did the opposite of what miners have requested and demanded they do. But these wasn't just demands of miners to do these things, these was recommendations from NIOSH, recommendations from a federal advisory committee and a clear directive from Congress to achieve the goals that miners have laid out. That unfortunately continued to be ignored. In terms of the rulemaking process, you know, I have to say that I was somewhat disturbed and confused about recent proclamations from the head of MSHA. Those people who crafted this rule -- or responsible for crafting, I should say, and who signed off on it and sent it out to -- for the public hearings and public response. In an article last Thursday the head of MSHA said that he was both surprised and perplexed -- according to the paper, which was the Lexington Herald -- by the outcry from miners over the MSHA dust proposals. I'm surprised and perplexed why he would say such a thing. The reason I say that is, the case I laid out to you, what miners have told the government years that they wanted, are not in these rules. To the contrary, what the government did when they crafted these rules is ignore those recommendations, those demands, those comments and a wealthy record pointing this agency in the right direction as the March 6th, 2003 proposal was issued. Now if anybody doubts that we're upset about these rules, I think they need to come and listen in these hearing rooms. If anybody's surprised about the miners objections to these rules, I think they've been living on another planet and they surely did not read the 2000 rulemaking record which lays this out clear as a bell. And they surely aren't in tune with what miners really want and need. You know, that's said that we wind up in a situation like this with -- we have a mess on our hands, fellows. We have a rule that's been launched at the public expense to do something that is just totally wrong headed, ill advised and as we see it illegal. Following the four public hearings that's been held -- and i've had an opportunity to attend all four of those and talk to our folks that was there. There's about 120 people that have testified so far to this agency. Out of 120, which included miners, widows of miners, black lung victims, doctors and even a coal operator at the first hearing. And out of that 120, I have saw not one person -- not one person step forward supporting this rule. That should tell the government something about what's going on here. Now either the government is wrong or the public is wrong, one of the two. And when it comes to 120 to zero, I think it's pretty clear who's wrong in the approach to fix and overhaul the respirable dust program in this country to deal with the issues of cleaning up the respirable dust in a manner that working miners can go through their life and not get this black lung disease. You know, we've had tens of thousands of miners die from this disease. I've had personal friends die hooked on an oxygen bottle and I know what they go through. It's one of the most horrific experiences of life to see somebody that you know and love and care about just pass away every day. They can't even make it up a set of steps without stopping to take a breath attached to an oxygen bottle. Tens of thousands have died with this disease. And as we look at the recent NIOSH report that was issued just barely a month ago showing that there is hundreds of miners working in the mines today that is afflicted with this disease. Hundreds of miners working today afflicted with this disease; the program does not work to protect them. The sad reality is, it's those miners who get the disease, who've had the disease and will get this disease, who tell this government what they need to fix it. We unfortunately have a deaf ear, and that's got to change. It's got to change in a way that this government starts listening to those victims and responding to the needs of the victims of this terrible disease. They said some things pretty clear. We want the dust levels lowered in these coal mines. We want frequent sampling of the dust to make sure that miners are in safe levels all the time, not just when the sampler is put on infrequently. We want these continuous dust monitors that the mine workers, that the industry, that NIOSH has worked hard for years to develop and we're on the verge of having those devices finalized. Which by NIOSH's estimates, by August, maybe September we'll have all the testing completed, the schedule on those devices, and it'll be ready, if everything works out, to head straight to the production lines. And to find us in a situation where we have such a remarkable device that can sample miners every day, every shift 365 days a year, that can be conveniently worn by the miner because it was developed to be as worker friendly as we could make it, built into the miners' cap light battery, it would provide invaluable information to the government from miners across this country that is just unimaginable today about the dust levels they're in. It's designed to give the miners the ability to read that instrument and know what dust they're in as they proceed through the shift and push a button and tell them if they stay in the same dust levels what they dust levels will be at the end of the shift. It will provide at the end of the shift miners, mine operators and MSHA with a clear instant reading of what the dust levels was for that shift. That forces action, you betcha. It forces action to be taken so miners are kept out of the dust. It's designed to be as tamper-proof as possible. The reason I know that, I have been on the development side of this device for the last several years and we asked for different things to be built into this device. At some of these mines where they take the current dust samplers out and hang them on the roofbolt or put them in a company office somewhere and shake up a bucket of coal, all those devious things that had been recorded as being done, it's more difficult for them to get away with that. It has a motion sensor in it. If that thing sets around, it's going to detect the lack of motion. If somebody plugs up the end of it to keep the dust from going in, it's going to show that up in the data that comes out. If it's setting in a constant air environment and don't show those peaks and valleys you go through in a shift, it's going to show up on the data. This is a remarkable device. It's so remarkable that I would think that everybody would be saying let's hold the fort here. Let's tell those researchers to get this testing done and let's get those in the coal mines for these miners. It takes care of a lot of problems. We have a very complex plan verification system in this rule. It's so complex -- I've had discussions with the industry. They're as confused as we are. They think it's gong to go the other way. I mean, it'll be such an imposing monster that they can't live with it. We think, on the other hand, that operators who figure this out can figure out a way to get around this scheme and get away with basically murder in coal mines. Bad system as the alternative. We would support that system if there was not another solution to this problem. There is a more simplistic solution to this problem however, and that simplistic solution is let's have planned verification every day, every shift, 365 days a year. Let's get those continuous dust monitors into the coal mines and let's determine what the actual dust levels are every day. And through the course of the shift if the dust levels start rising they have an indicator there that's going to cause something to happen that we don't now have. They can make quick adjustments. They don't have to wait for samples to come back from the government days or weeks later and say, well what was I doing on Friday of last week that caused that dust level to be high? They can tell right now instantaneously with those devices as that dust level peaks up. A remarkable device. The operators are calling for getting out of the dust sampling business. I just read an article today where the industry is getting ready to where the industry is getting ready to I think come out and publicly oppose these rules. At least what I read today, that's the gist of the direction they're going as well. You know, they claim they want to get out of the sampling business. They don't want to be called criminals. Well my first point is, if you're not -- if you don't act like a criminal, you won't be one, okay. That's one lesson we have to learn about this whole thing. Tens of thousands of people died from this disease caused from something, and some people did some dastardly things to put those people there. That's sinful. But on the other hand, there is a solution to the operator's problem here when it comes to plan verification. Sample 365, 24/7 in these dusty occupations and have a constant sampling system with verification attached to it. You know, as I look back -- and I've been in this business for 20-some years, and I've been working on reforming the dust program since 1976 when I was with the convention in Cincinnati, Ohio when a bunch of miners told this government -- or laid out the plan to tell this government and shortly did thereafter, what they needed to fix this problem. Get those continuous dust monitors in these coal mines, fellows. 1980, when the government finished rulemaking, when they last overhauled these rules, they promised the miners that they would work to build that device. And as we sit here in 2003, how many years later is that? Twenty-three years later we're sitting here. We've put men on the moon, we've put little robots on Mars to monitor the environment, to take pictures, and for some reason, we just can't get these continuous dust monitors built and put in the coal mines. I can tell you this, had it been the same approach over the years building these continuous dust monitors, if they had of been the same people that was preparing our military for war, there would have been no short war in Iraq. I mean that's the reality here. We've all got to come to terms with the simple proposition that coal miners are getting sick from this disease. Coal miners are dying from this disease and there's a way to fix this if we all focus our attention to get it done. Bandaids don't work, and this proposal is nothing more than a bandaid that legalizes high dust levels in coal mines and gets the samplers out of the mines. Through these proposals -- I don't know and maybe I missed it -- the plan of MSHA is to A, eliminate the dust sampling requirements mandated by the regulations, at least the frequency and the numbers or those. And in it's place, just do the compliance dust sampling by policy. By a policy that can change and has changed. As a matter of fact, I've complained about the agency after promising increasing dust inspections and more vigorous enforcement backing off to only four inspections last -- dust samples last year in a policy that was issued. And those are not even compliance, they're target or whatever we call them now. That's what scares miners. That's what scares me here. Miners should not stand back and let this agency strip away protections they are legally entitled to with this trust-me replacement from the government. If they do, they're making a bad, bad mistake. Now under this policy that the agency has launched here on their vision of dust sampling, we will have on some mining sections -- some mining sections sitting right behind me here -- as little as three compliance inspections by MSHA a year. Now we asked for the data that shows how you guys came up with that, Bob -- or the specific mines of the data you used to determine which mines would be only getting three inspections and which would be getting six. I got a letter back from Dave Laurski about a week ago that says we're not getting that because you don't have it. We had data that come up with that conclusion, which you informed us about earlier. We still want the list of mines that you project based on the data you looked at that would only have three inspections a year because I think these miners out here deserve it. Then you look at the policy and you find that MSHA plans to only sample one shift in the vast out-by areas of coal mines in this country. One shift a year. Now tell me, does anybody in this room honestly believe we can predict the exposure of unhealthy dust to miners by taking one sample in a coal mine a year? Outrageous. We oppose it. You can Dave Laurski or anybody else that listening, we will not support that kind of rule. It is not an MSHA takeover, it's an MSHA give-a-way and absolutely to our dying breath we will not support it. And you can tell Dave Laurski -- (Applause.) MR. MAIN: -- that we are not supporting a rule that allows dust levels to be increased up to eight milligrams in coal mines. We understand that was his proposal. We got the documents in a meeting with MSHA. We asked, where did this proposal come from, this outrageous action to increase dust levels up to eight milligrams and to put these faulty air stream helmets on these miners? The response we got was from four different areas. One there was a change of leadership at MSHA. And this is in a letter I documented and sent back to Laurski about three weeks ago, which was not refuted by the way. The change of leadership is, we currently have the folks who is the assistant secretary, the deputy assistant secretary, the other deputy assistant secretary, the special assistant and the chief of health all just hired in from industry that's now running this agency. That's the leadership of the agency. We were also told that it's embedded in a proposal filed by David Laurski himself as a mine manager of the Energy West Mine seeking to have rules implemented that would have air stream helmets used in lieu of engineering controls in allowing the dust levels to be jacked up in the nation's coal mines, which was rejected. That was when he was a mine manager it was rejected. Then we were told -- the third one was a proposal from -- a study from the University of Utah that was done for Energy West Mining, Dave Laurski's company, that critiqued the air stream helmets. That was a little bit biased, I believe. And the fourth was a 1979, I believe, study on air stream helmets that was issued and done, you know, some -- many outdated years ago. But that's what we were told the basis of this eight milligram air stream helmet proposal came from. I can tell you this, miners across this country have said and will continue to say that is outrageous, we don't want it and we'll fight it until hell freezes over. (Applause.) MR. MAIN: You know, the frustrating part of being part of the public is that when you go to these public hearings and you lay out a case as to what needs done, you have -- you have to have some faith that the government will do the right thing. That the government will be, in this case, sympathetic to miners who are dying from a disease, and getting the disease, that they need -- they need the problem fixed so that they don't -- that don't happen to them. And the unfortunate situation that's we've evolved into is we find that the government has turned a deaf ear to miners, has turned a deaf ear to the public when it comes to the issue of cleaning up the respirable -- the unhealthy, I should say, coal dust in the nation's coal mines so these miners will not get sick. Now as you crafted those proposals and you embedded them around that Laurski proposal, you made some changes in the rule that did -- as we've admitted and have supported -- some improvements in the rule. They're so modest, and in comparison to the adverse things they're unworkable. We agree -- as we've said, we agree with full-shift sampling, but not the proposal you have on the table. I hope you pass that back to Dave because I think Dave has some misunderstanding about where we're at on that. We support single-shift sampling, have for years and continue to do so. We do not support single-shift sampling done once in a lifetime in a coal mine or so infrequent that it makes no difference. We do not support single-shift sampling that increases the dust levels to satisfy a margin of error in favor of the mine operator, and the last I read NIOSH didn't support that either. Of course, I understand NIOSH is not part of that rulemaking. Our aim is to do one simple thing, clean up the coal dust in coal mines. Get the dust levels down, not up. Get frequent sampling of the mine environment so miners can know what they're in and there'll be some forced action on the part of the operators to fix unhealthy and dusty conditions. Have full miner participation. This rule doesn't do that either and we've said that. Get these continuous dust monitors in these mines yesterday. They should have been in yesterday. We've dilly-dallied around for years and complaints about gee, we can't wait anymore. I'm telling you, we've got to do two things. A, get that research done ASAP. Everybody should be out there hounding the poor NIOSH fellows that's working on this. Get that research done and get those in the coal mines. Let's fix this thing right for miners. I hope that this message goes back to Mr. Laurski, who seems to be confused. I know -- and the reason I say that -- and I don't like to get into these press battles here, but he's the guy who's going to sign off on this rule. He's the guy that signed off on launching this rule and I think he has the right to know from this hearing room exactly what is being said here, and he has the responsibility to read the record, as he had the responsibility to read the record of 2000. It's just not us saying that this rule is problematic. I just want to read a statement from the one operator who testified at the Washington, Pa. hearing. His name was -- MODERATOR NICHOLS: Joe, we've got 54 more people signed up and I want to hear from all the miners. Can we -- MR. MAIN: Marvin, I have that same deep appreciation -- VOICES: Let him talk. MR. MAIN: The problem these miners have is, they haven't had the luxury that a few of my crew has to sort through this whole rulemaking. It is so complicated that our miners can't understand it. While you raised that, let me just let you know why, Marvin, then I'll go back to this in one second. I will finish up as quick as I can. I know you would like for me to leave. (Laughter.) MR. MAIN: This is the rule -- this is the rule that governs when a citation is to be issued under these regulations as crafted by MSHA and sent out to the public. And what it says under Section 70.218, on violation of respirable dust standard, issuance of citation, action required of operator and termination of citation. It says if a valid -- whatever valid is -- equivalent concentration measurement -- whatever an equivalent concentration measurement is -- for any occupation sampled by MSHA meets or exceeds the citation threshold value -- you've got to determine what citation threshold value is -- listed in Table 70-2 -- you need to go over to 70-2 and once you figure all that out, figure out what that means. That corresponds to the applicable dust standard. You've got to figure out what the applicable dust standard is. In effect, the operator will be cited for violation of 70.100 and 70.101. Now, I think this takes about three Philadelphia lawyers to figure this out, because it is -- for the common person to understand this rule, it is more than complicated. And the consequence of this rule, once we did figure it out after -- and thank you guys for bearing with us and having a number of meetings so we could question you guys about what this rule did. I think three meetings and several hours worth to do that. We finally concluded that despite what this rule continues to say, a maximum of 2.0 milligrams, a maximum of 2.3 milligrams in the mine environment to be cited, that's not true. What miners behind me can expect under this rule is anywhere from less than 1 milligram to 9.32 milligrams to be in their coal mines before it is actually cited under this rule when you walk through all of those tables and definitions. Now the sad reality is that's not explained to the miners. It hasn't been in any hearing that I've been to. We've had to drag it out. It hasn't been explained to the public. But I can guarantee you, I'm totally confident with what you guys have told me -- it's on the record and I can read it, Marvin, if you wish me to do that -- that this will allow those dust levels to hit between those ranges and coal mines. Nobody behind me has a clue what their standard will be as far as the mine environment as we measure it now under this rule, but it'll be less than 1 milligram up to 9.32 milligrams. That's outrageous. That's part of the problem with this rule and part of the complexities. I've offered to give people two days to read this thing, give them a test if they passed. If they could score 20, I would pass them. That's how complicated it is. Going back to Mr. Gallick, who was the safety manager for RAG Coal Company. John Gallick is his name. He testified at the Washington, Pa. hearing and here's what he said in his opening remarks. "First, let me say this rule appears to closely parallel the previous proposed rules that were soundly rejected by all stakeholders." Labor and management alike. I've added that to it. "I cannot understand why MSHA has not listened to the stakeholders and actually attempted to develop a rule that the stakeholders could support, both industry and labor, albeit for different specific concerns, said to MSHA at the last round of the public hearings, that MSHA needed to start this rule all over rather than attempt to modify it." That was just said what, two weeks ago in Washington, Pa if I've got my timing right. What Gallick said represents the viewpoint of the stakeholders that are affected by this rule, both labor and industry. They said very soundly in 2000 trash this rule. It doesn't do the job. Come back and build one that works. There was a clear message from both labor and management, build it around a continuous dust monitor and fix this problem. As we set here today you're hearing the same comments you did in 2000 and one should start asking why is this happening? Why are we here? Why are we wasting the taxpayers dollars going on a track that will not work because we believe you cannot fix this rule in its current form. It's just like throwing that big old Mack wheel on a broken down Volkswagen, it just won't fit. Go back to the drawing board and do this right. That's what we said in 2000. Unfortunately people didn't listen to us. We laid out a reason why in 2000 and unfortunately people didn't listen to us and you're hearing the same thing again. I just hope that someone -- someone in this government really wakes up and understands what's going on, the travesty that is going on here. Raising dust levels and reducing the amount of sampling in coal mines will not end black lung. Lowering those standards, the dust levels, and increasing that sampling will help eradicate this disease. In closing there's a lot of other things that I would like to get into today but I'm not going to do it. A lot of miners, as you pointed out, are here to talk to this agency. Many of them told me, Joe, why are we even going again? The same thing we told them in 2000. I said well, we've got to do it because it's the process. We've just got to hope that somewhere in government someone grabs hold of this and say wait a minute, we're going to start listening to those miners. We're going to start listening to the public and we're going to fix this. That hasn't happened yet, but I still have faith that somewhere, somehow, some way, someone is going to take control of this and take control away from those who crafted this proposal and do it right. And as the president of our union says, if we've got to go to the halls of Congress to get that done, we're willing to do that. If we've got to go to the streets to get it done, we're going to do that. And if we've got to go to the public and just patiently explain what this rule really does to get the public's attention so they understand, we're going to do that. Whatever it takes to get what miners deserve and what they need, cleaning up the dust in these coal mines and doing it right so we don't have black lung cases. Thank you very much. (Applause.) MR. MAIN: I'll take any questions you have, Marvin. MODERATOR NICHOLS: I don't think I have any questions. You know, I watched -- I watched the audience as Bob went through his presentation and I think -- I think a lot of people do understand what we're trying to do here. I think your testimony is reflective of why it's important to have these public hearings. If it's not clear in these rules that the intent of these rules is to lower the dust levels, not raise them, and if the first -- if it's not clear that the first line of defense is not engineering controls then we need to clarify that. Then if it's not clear that supplemental controls are only going to be allowed to be considered after all engineering controls are exhausted, we need to clarify that. And if we haven't made it clear by allowing the rules to accommodate new technology once it's developed, tested and commercialized, we need to clarify that because that's clearly the intent of these rules. MR. MAIN: The intent, as you expressed, and what these rules do is two different things, Marvin. MODERATOR NICHOLS: Well then you need to tell us how to clarify it. MR. MAIN: I did. I've told you -- well not only me. I mean this is an issue of miners. I think there's been a well established case here that for 25 years they said get continuous dust monitors in the mines, sample every day. It's been an issue of miners for years. Why the government can't get that done amazes me. I have the highest respect for the NIOSH folks that have busted their buns and worked with both labor and industry to build a device that gets us there, Marvin. That is one of the solutions that miners have been telling you for 25 years. Nobody will listen. MODERATOR NICHOLS: We don't disagree. We're looking for it. You mentioned the 2000 proposal. The last public hearing I conducted in Grand Junction, Colorado we were told that the personal dust monitor is just around the corner. In fact, the industry coined the phrase it's the bridge to the 21st century. Here we are in 2003 and we have a prototype. We have six prototypes going to be tested. We think -- we encourage that. I mean -- and we'll see where we are at the end of the day, late summer, on how this is playing out. We think there are also very important issues about improving dust control plans, eliminating this averaging and not let miners continue to breathe coal dust when everything else has been tried and exhausted. MR. MAIN: Marvin, I think the failures of your argument is the following: There is a number of people that made a direct commitment to build a device that would work. There was a series of meetings that was held -- which I was a party to -- about every one of these that have taken place, where representatives from the BCOA, the National Mining Association, NIOSH and MSHA was present. We came to the conclusion that the best thing we could do as the primary focus of our attention was to build a continuous dust monitor that miners could comfortably wear. A decision was made to do that; however, after that meeting the government got together and changed that plan. Which is a matter of record, which was criticized by both industry and labor. Took the money we had allocated to build this worker-friendly device and built a larger bulky unit that would not satisfy the miners' needs. It clearly wouldn't. And what happened is a travesty over time. We were delayed probably a year. We wouldn't be -- if it wasn't for that one decision, we probably wouldn't be sitting here today saying they're going to be done in August. But further, I can tell you this, that those that have been to the table -- and a noticeably absent partner here has been MSHA, for whatever reason -- that stayed with it, that has built this thing all the way through -- I know where we're at. We've tested the technology, it works. It's been ran through a number of mills at the research center. It's build by a company that specializes in this technology. This is not a pipedream. We know that we build it to be tamperproof. I mean all these things we're laying out on the record -- you know, I've looked at some of the surprised faces on the MSHA crew and not on the NIOSH crew as we walked through this. I can tell you this, Marvin, that to be as close as we are to fix this thing -- and yes, we had delays here last winter and the delay was because the manufacturer didn't put the batter capacity in these darned units that we had asked him to do and they had to go back and readjust that and get it approved by you guys to get them in the mines. That cost us a few months. We were outraged over it. We sent a message. The industry was outraged over it. They sent a message. NIOSH was. I don't know if MSHA did or not. But we pressed to get this technology done. And being on the verge of having these tests completed by those of us who know what's really going to happen here, and to have the government, Marvin, move expeditiously out of the blue shocked both us and industry when you come out with this rules in a wrongheaded way, cutting off at the pass the real value of these units. In your rule -- let's talk about that. What it is, it's only an option to be exercised by a miner operator in lieu of a very few samples. Now the operator is going to say oh -- MODERATOR NICHOLS: Yeah, but what we've asked for, we have a whole list of questions about how this unit ought to be -- ought to be used and that's what we're expecting is comments on -- if this unit proves out and it's commercially available then we need your comments on how it ought to be used. MR. MAIN: So the rulemaking is going to end on -- industry asked for an extension, we asked for withdrawals so we could get this testing done. The comment period ends July 3rd. Testing on this unit is going to end in August. It sounds to me like you've cut us off at the pass again to even get the value of what these units will do. I mean -- I mean let's look at it straight. I mean it seems there's an attempt here to do everything that can be done to short-circuit the use of these units. We don't agree with that. We think that the rulemaking was wrongheaded. We think it was rushed through the process which avoided, whether intentionally or unintentionally, the ability to assess those units. I mean what was another few months, Marvin, if you knew what was going on here? MODERATOR NICHOLS: Well I think -- I think we understand your issues and concerns, Joe. We need to kind of move on. MR. MAIN: And I wish you would pass them on to Mr. Laurski so he'll be at least clear minded when he says what our positions are. Thank you very much. MODERATOR NICHOLS: We'll do that. Thank you. (Applause.) MODERATOR NICHOLS: Our next commenter is Daryl Dewberry, UMWA. MR. DEWBERRY: Good morning. MODERATOR NICHOLS: Good morning. MR. DEWBERRY: My name is Daryl Dewberry. I am the International Executive Board member and Political Action Director here in District 20 for United Mine Works of America. Let me say that I wish I could say that I'm happy to be here today. MODERATOR NICHOLS: Daryl, will you spell your name for the court reporter? And will everybody else that comes up please spell their name for the court reporter so we get the record correct. MR. DEWBERRY: Daryl, D-a-r-y-l, Dewberry, D-e-w-b-e-r-r-y. Let me say that I wish that I could say that I'm happy to be here today, but this is basically deja vu. I testified before this hearing in 2000 in -- I think it was Prestonburg, Kentucky and Salt Lake City, Utah. After reviewing the regs in doing what I thought was an extensive job, the union and the operators both were in agreement that the proposals of 2000 were not acceptable. Basically what I've reviewed under these rules today, they parallel those 2000 rules, maybe a little worse. I've come to the conclusion that maybe MSHA -- I understand that the legislators invoked -- or enacted the '69 Act and then it was amended by the '77 Act. I believe it's clear -- it's unambiguous in there that 2 milligrams is the standard and to deviate, or to go beyond that, is unacceptable. I don't think that you have any authority to legislate. If you want to be a legislator, you need to run for office. That's what we're going to communicate to the legislators. I'll be on Capitol Hill tomorrow. I have a meeting with Congressman Bachus, a good friend of ours. We're going to meet with Senator Shelby, Senator Sessions. Let me say, as a result of the disaster that happened at Jim Walter Number 5 where 13 of our brothers were killed, a strong commitment was made by the legislators. These men have said that they would strengthen the regulations. What you're proposing today will be a slow death for miners. Let me say that I have first-hand experience at seeing your brothers slip away. At Jim Walter's 7, a gentleman by the name of Sammy Wilder, under the current 2 percent -- I'm sorry, 2 milligrams of respirable dust -- he's deceased now. He would be 52 and he deceased probably about seven years ago. Another good friend of mine who would be about 50 is Otis Earl Foust who contracted black lung and who is now deceased. Another gentleman, Don Hood, and I'm not -- there's too many to name. Y'all know this. I mean, you know that black lung kills. And to even entertain a notion that more is less -- you know, I'm not a rocket scientist, but I understand math. Two and two don't make six. And if you allow respirable dust levels and people to work in respirable dust levels at 9.3 before you cite them, you're just raising the benchmark for the operators. As far as the operators sampling them, the operators don't want to be accused of being criminals. Not only that, there's too much variables there for them in the event there is tampering. Why not -- you know, it would be nice if I could get the state troopers to give me a citation book so I could write myself a ticket when I speed, because I sure wouldn't write very many tickets to myself. Basically if the sampling goes on by the operators, I think that -- that's what we've employed as taxpayers, MSHA. That's your job. I mean, we think that that should be exclusively done by MSHA and continuous monitoring. Let me say that I have a question as to what happened to the federal advisory committee prior to the 2000 hearings. They made recommendations and they fell on deaf ears. That committee -- I don't know what happened to it, but certainly there was a lot of research and a lot of work that went into it but to no avail. We have the technology and ability. We've been able to produce coal from the late '70s, early '80s to $54 a ton to get it down to $29 a ton. We have the technology to monitor CO, all gases, what's coming out of the fan. Everything is a technological marvel. Why in the world -- I don't think that we really want to know what the dust levels are as far as continuous monitoring. That's my opinion. Because at that rate you'll know that you're basically killing more -- I'd say more per year than the 13 in the disaster at Jim Walter 5 at one time. Our average age of our coal miners is from 48 years to 58 years of age and usually -- or most of them have from 20 to 30 years in the industry. We've given -- we've given to this industry so that the lights would be on, so that you can make steel and we've chosen this profession. But we had a promise from Congress. That promise was that they was going to make us a safe environment and it wouldn't exceed 2 milligrams of respirable dust. Let me say that I'll be on Capitol Hill with the legislators tomorrow and we're going to hammer on this. We opposed it in 2000, we oppose it now, more dust does not mean less dust. I don't care how you do the math. It just doesn't -- it doesn't work, it doesn't calculate. As far as the air stream helmets are concerned. Otis Earl Foust, who is deceased now, wore one when he worked on the long wall at Jim Walter's 7. I know that they are probably improved now, but one of the other problems that we've had, and we've had several hearing tests run on our miners. When you get this on it muffles or suppresses some hearing. When you're on a long wall -- and I don't know -- I would challenge this panel to put that -- and we did in Prestonburg, Kentucky. I don't know if you have or not, but I certainly would appreciate getting fist-hand information. Go down on one of these long walls and wear that airstream helmet all day. When you get coal dust on it, you scratch it. You get a glare on your lens. I know that you can replace it, but it'll impair your vision. You're subjecting yourself to undue hazards. You can't hear the top working because it's muffled your sound and you've got this pump running and you hear that. You're already deafened as a result of being exposed to high level decibels in the coal industry around this loud machinery. That's part of it. We accept some of that. But to put us at risk and say that this is going to be a mandatory thing -- our people now, some of them wear dust masks and some of them don't. But if you've ever climbed up in one of this long wall shields to work on to swap a hose out, with it running, you'll know that you -- you'll have to take it off and you're going to subject yourself to it. There's plenty of first-hand knowledge of people that have worn these. I put them on and tried them. I wouldn't wear it. I'd hate to know I had to wear it all day. I would respectfully request that y'all deviate from legislating the Act and follow the Act. Make us stay with two milligrams of respirable dust and go from there and you'll save lives. MSHA -- the Secretary of the Department of Labor is charged with protecting the most precious resource in this nation and that is the coal miner. Forget about the production, the coal or anything else. That's your charge in that 1977 act. I think we need to go back to that act and read it so that we'll know what our priorities are. Thank you. (Applause.) MODERATOR NICHOLS: Do you think the rank and file miners understand the current program, the averaging of the samples where you can get -- you get two samples over, three samples under and we have to legally call that compliance? MR. DEWBERRY: They don't understand how you can legally call it compliance when the majority of our people are still getting black lung. They don't -- MODERATOR NICHOLS: No, I asked about the sampling. I know we're still getting cases of black lung. That's what we're trying to identify here, how to get at that. But do they understand the sampling program? We sample five consecutive shifts, average those samples and if it's less than two then that's compliance? MR. DEWBERRY: Yeah, I'd say that they understand that, but, you know, we haven't agreed to that. I don't believe that we were part of that negotiation process. MODERATOR NICHOLS: Well I didn't say you agreed to it. MR. DEWBERRY: I know, but we have to live with it. You're charged with enforcing the regs -- and I'm not so sure in my personal opinion that they comply with the intent of Congress when the legislation of the Act was implemented. Two milligrams, let's look at -- it's unambiguous. Two milligrams is the standard and that's what MSHA should be striving for, not 9.3 before we cite them and then let's see. You're killing miners. VOICE: I bet if they moved your desk down there for a day you would find -- MODERATOR NICHOLS: I heard something about putting my desk down somewhere. MR. DEWBERRY: As you were out, I challenged the rest of the panel members go down and wear one of these airstream helmets. We did that in Prestonburg, Kentucky, I believe, and I don't think we had any takers on the thing. If you do this -- I mean some of these coal miners are already upset. Let me say this, that we agreed -- we brought a minuscule amount of people. Some more people will probably come. But if this is passed, we're going to be up in arms about the thing. I mean, we think that you're neglecting your responsibility to enforce the Act. MODERATOR NICHOLS: Okay, thanks. (Applause.) MODERATOR NICHOLS: Larry Spencer, UMWA. MR. SPENCER: Good morning. MODERATOR NICHOLS: Good morning. MR. SPENCER: My name is Lawrence Paul Spencer. That's L-a-w-r-e-n-c-e P-a-u-l S-p-e-n-c-e-r. I'm the President of the United Mine Works of America Local 2397. I have been working in underground mines for approximately 23 years. I have worked on continuous miner sections, long wall, outby, outby on the long walls and general outby and now I'm a fireboss pumper at Jim Walter's Number 7 mine. Also my father was a miner, too, and he's here today. I wish I could say that it's a pleasure to speak here today but I'm saddened to see the changes made in our health and safety. I feel like they've failed. THE REPORTER: Excuse me, Mr. Spencer. Could you pull the microphone a little closer, please, sir? MR. SPENCER: I sure can. Do you want me to start over? THE REPORTER: No, that's fine. I just need to hear you. MR. SPENCER: Okay. I'm angered that this is the second time within three years that we've had to come before the same hearing and go over the same stuff. It angers me that we're wasting -- it seems to me that we're wasting taxpayers' money, we're wasting the union's money and it keeps falling on deaf ears. We're not seeing the right results out of it. I can't understand why anyone would want to raise the dust levels that a person works in. I work down there and I know. There's no reason to even raise it one milligram, much less up to eight or nine milligrams. As president of this local I get to talk to working miners, retired miners and it saddens me to see the people with black lung. I've seen people with open-heart surgery that recovered. I've seen major medical problems and people recovered, but black lung, you just get sicker and sicker until you finally die a horrible death -- and I've seen it. And MSHA's rule that talks about decreasing the amount of compliance dust sampling, if anything, we need to increase it. The average miner now days works 10 to 12 hours. We don't have 8-hour work days. This starts at the portal, it doesn't start at the working face. The dust starts at the portal. Actually the dust starts when you get out of your car. I can't see starting a pump after I get to my working production place. The new rules allow for the airstream helmets. I've wore an airstream helmet. At our mine site, within the last five months we've had four squeezes on our wall. One, I think, or two of the squeezes, they picked up sides on who worked in the squeeze area and who worked in the area above. The way they picked the sizes was, the small skinny guy works in the squeeze area. The big guys have to work above it. The small skinny guy had to take off his belt to get through it. How can he wear an airstream helmet? There's no way. I feel like Daryl, too. I feel like y'all should come down -- and I would be glad to go with you if you would come to Number 7 Mine. I'd like for you to come at a time when we are in a squeeze. Hopefully we don't have that, but I'd like for you to see a time when it's really where you have to crawl or you have to slither through the shields and let you wear airstream helmets. They just don't work. I'm telling you from experience. I've wore them. The people that Daryl talked about were my friends. To close, I would like to say that I've tried to make an honest living working in the coal mines. I've got a wife, I've got three girls and now I've got three grandsons, and I'm asking you, don't give us a death sentence. Think about what you're doing. That's all I've got to say. MODERATOR NICHOLS: Thank you very much. (Applause.) MODERATOR NICHOLS: Bob Wise. MR. WISE: Bob Wise, B-o-b W-i-s-e. Last week our President, George W. Bush, gave a speech in Indianapolis, Indiana. MODERATOR NICHOLS: You may need to speak into that microphone a little bit there, Bob. MR. WISE: Is that better? MODERATOR NICHOLS: Yeah. MR. WISE: Last week our President, George W. Bush, gave a speech in Indianapolis, Indiana. I believe it was last Wednesday. During his speech George stated we expect persons in authority to be responsible. He then criticized some corporate leaders that did not act responsibly. He did say they did not tell the truth to the workers and the shareholders and that this is bad for America. I firmly believe that top MSHA officials are not acting responsible and haven't for a long time. I don't believe they acted responsible following the Willow Creek explosions in that they took no actions toward emergency evacuation and response. I don't believe they acted responsible following the Martin County accident in that they consistently blocked the truth being told. I know they didn't act responsible after the Jim Walter Number 5 disaster. This can be verified by MSHA's refusal to allow interviews of MSHA officials to be part of the public record. Their refusal to interview approximately 50 miners as part of the public record and the very limited reporting and action by MSHA concerning the mine roof. I know they didn't act responsible issuing the very narrow emergency standards toward emergency evacuation and response. To verify this, a person would only have to review the record from the public hearing in Lexington, Kentucky, which I attended. And I do not believe they acted responsible when they issued these proposed rules. This, too, can be verified by comparing these proposed rules to the findings of the nonbiased dust committee and NIOSH's criteria for a recommended standard. On the point of not telling the truth to the workers. I see no difference between the corporate leaders that George Bush was speaking of and the agency leaders I'm speaking of. This too can be verified by reviewing recent press articles, and I would briefly like to touch on a couple of them that kindly hit the nail on the head. One of them being out of the Post Gazette. "During the hearing Joseph Main, the union's health and safety director spared with MSHA getting its representatives to admit it is possible that the new rules would allow permissible dust levels to quadruple to as high as eight milligrams per cubic meter." There's another one in the Register Herald where -- "what's more Laurski said both the union and representative Nick Rahall, a democrat from West Virginia, are off base in claiming MSHA wants to allow a climb in dust levels from two milligrams per cubic meter to eight milligrams. Absolutely not Laurski told the Register Herald Thursday a day after Rahall and the UMW demanded MSHA back down from two proposed rule changes. But they cannot be used in lieu of engineering controls he said. Laurski found it puzzling the UMW feels sampling would be dramatically rolled back. Ninety percent Roberts estimates from the current practice of joint testing by MSHA and operator. So we listened and we proposed a rule that now says we'll take over all sampling for compliance and only one sample to determine compliance on an individual or given occupation within a mine he said." I wonder if George would support these persons in authority once we make him aware of their actions? I personally think good tax dollars are being wasted on these persons. I support continuous sampling devices being required for all miners. I support enforcement on all samples which show noncompliance. I support the single shift sample being portal to portal. Now I would like to say a couple of things that's not prepared. I wish my memory was a lot better. Last night I was sitting there and I wished that I had had some recordings of this. The Secretary of Labor, Ms. Chao, on a football field in Brookwood, Alabama. In her speech, the things that was going to be done, I certainly don't remember anything like this. I would also like to touch on the disaster at Jim Walter Number 5. I lost a very dear friend in that. And nobody in their right mind could deny that excess dust played a big role in that. And going from two to allowing eight percent, gentlemen, that will not work. That's going to kill more people two different ways. Thank you. MODERATOR NICHOLS: Thank you. (Applause.) MODERATOR NICHOLS: Court reporter, if you need a break you let me know. We'll keep going. Stewart Burkhalter. MR. BAKER: We're going to skip him and bring him back later. We will go with Leroy Nicholson. MODERATOR NICHOLS: Okay. And then you have some more people following him? MR. BAKER: We'll just go right through the list after that. MODERATOR NICHOLS: Okay, Leroy Nicholson. MR. NICHOLSON: Good morning. My name is Leroy Nicholson. That's L-e-r-o-y N-i-c-h-o-l-s-o-n. I'm the Director of the Alabama AFL-CIO Labor Institute for Training. I also sit on the Alabama AFL-CIO Executive Board and I hold a seat on the Pace Allied Industrial Chemical and Energy Workers Council here in Alabama. I represent voters from each of the seven congressional districts here. I'm appalled at Assistant Secretary Dave Laurski and top MSHA officials aren't being responsible in the press by telling the truth to workers. Increasing dust levels and decreasing sampling and pretending a person can work in an airstream helmet will not result in cleaner lungs in this country. This is more than a pie-in-the-sky health rule. What is fair about prohibiting Americans from smoking in public places to protect Alabama from second-hand smoke while increasing contaminants for coal miners? If American lungs are important aren't American coal miners' lungs equally important? Last week our governor spent millions of dollars to promote a 36-hour drill on a dirty bomb disaster. The spending of this money and by having this drill, the federal government demonstrated their understanding of the importance of simulated training. Why is it then that this is the third proposed rule that the secretary has issued which affects miners without any proposal to increase the annual health and safety training required for these miners? Why is it that simulated training which has been requested by the United Mine Workers and others still isn't being required in the workplace? It is not just to hold a worker responsible while refusing him training. You cannot train workers in the same manner that you raise mushrooms. You can't keep them in the dark and continue to feed them BS. I think we all understand what that is. Eight hours of annual health and safety training is simply inadequate to cover the many topics for which a miner is responsible. Miners have been saying this for years and today I join them in saying it. I submit to you that, number one, require immediate increase in annual pay and health and safety requirements for these miners. Two, require hands-on and simulated training, not just classroom training. Thank you. MR. THAXTON: Thank you. (Applause.) MR. THAXTON: Jim Brackner. MR. BRACKNER: Good morning, I'm Jim Brackner, J-i-m B-r-a-c-k-n-e-r. I'm a safety committeeman, Local 2245, United Mine Works of America. I'm employed at Jim Walter's Number 4 Mine with 23 years underground mining experience. First off, I'm going to state for the record that compliance and enforcement is a long way from where it needs to be in MSHA District 11. I'm not the best inspector in the world, but I am certified by the state of Alabama to identify hazards. I have received training from the United Mine Workers of America, as well as the MSHA Mine Academy to identify both hazards and violations. I have been tracking MSHA's compliance and enforcement for a long time and the most liberal statement that I can make is less than eight percent of violations are currently being detected and written by MSHA. I would like to tell you this morning that thousands of coal miners, not only in Alabama but all across the country, are madder than hell that you continue to try to shove pitiful, operator-friendly, inadequate dust proposals down our throat and we've about had all that we can swallow. After the hearing in 2000 I thought that maybe MSHA recognized the needs of the miners but I was wrong. Once again, you've chosen to ignore not only the recommendations of the Dust Advisory Committee, you've also chosen to ignore the voice of the people who's health and safety depends on strict regulations, the coal miner. These are the people that MSHA is supposed to be protecting. Have you forgotten about the Mine Act? On page 10786 of the preamble of the proposed rule the statement is made that this proposed rule would result in fewer shifts being sampled than under existing requirements. Is this to accommodate MSHA's inspectors so that they can have four days off every week instead of three? We won't increase sampling. We want and we need personal dust monitors that monitor the respirable dust continuously for all miners. Also on page 10786 of the preamble the statement is made that since all MSHA sampling is unannounced sampling will occur under conditions that are more typical of the actual mining environment. This statement is partially true. MSHA sampling is sometimes unannounced, but as far as taking place under conditions more typical of the actual mining environment, this is wrong. After the MSHA inspectors issue the pumps it's sometimes two to three hours before the inspectors arrive in the area where sampling is taking place. I always thought that dust pumps were supposed to be checked within the second hour of operation. I say once again that we do want continuous monitoring. I think MSHA inspectors should accompany dust pumps from portal to portal whether it be eight hours or ten hours. If you want to get a true sample try portal to portal. You might be surprised. The proposed verification sampling regulation is a joke. Verification sampling should be done by MSHA, not the operator. Allowing the operator to do verification sampling could be asking for trouble. Operators have been found guilty of dust fraud before and allowing some operators to do verification sampling could be just opening the door for more dust fraud to occur. An increase in dust levels is bull crap to me. I think the respirable dust standard should stay where it's at or even be dropped lower. I also feel that MSHA should issue citations for ever sample that exceeds two milligrams, whether it's a verification sample, a compliance or an abatement sample. But instead you want to decrease the amount of samplings, increase respirable dust levels and stick our heads in a bubble. If MSHA wants to implement new dust regs, then you should implement regs that will benefit coal miners and not kill them. MSHA's proposed regs are fatally flawed and not in the interest of the nation's miners. It's my understanding that at the hearing on May 6th MSHA representatives admitted on the record that under the proposed rules it would be possible for the permissible dust levels to be as high as eight milligrams per cubic meter. I'm highly concerned and ashamed that only three days latter Assistant Secretary Laurski attempted to manipulate the press and public perception by denying what was already part of the public rule. What I'm referring to is a May 9th article published in the Register Herald. By the way, I've been attending these hearings for years and I've noticed that every time my international safety rep Tom Wilson starts to speak you interrupt him. I'm asking you today to stop interrupting Tom Wilson and to start listening to what he has to say and accept his testimony. Thank you. MR. THAXTON: Thank you. (Applause.) MR. THAXTON: Herman Weber. MR. WEBER: Good morning. My name is Herman Weber, H-e-r-m-a-n W-e-b-e-r. I have been associated with the mining industry since 1978. During this time, I've been able to assist my union in numerous matters. These include the Union Political Action Committee, chairman of the Health and Safety Committee. I conducted special electoral and permissibility inspections for the international union, financial secretary for 23 years, past president of the West Alabama Labor Council, current recording secretary of the Labor Council and current recording secretary of the United Mine Workers of America compact (ph). I want to speak for my financial secretary's responsibilities and duties. In preparing to come here today, I started reviewing an enormous document that alone was 293 pages called a preliminary regulatory economic analysis. I never even got finished with document and never got to read the proposed rule. The 1977 Mine Act recognized the importance of miner representatives involvement in the health and safety. This importance was again re