U. S. DEPARTMENT OF LABOR } IN RE: SINGLE SAMPLE & PLAN VERIFICATION } MINE SAFETY AND HEALTH ADMINISTRATION } Pages: 1 through 267 Place: Lexington, Kentucky Date: May 15, 2003 AB14-HEAR-TRANSCRIPT-4 AB18-HEAR-TRANSCRIPT-4 BEFORE THE DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION U. S. DEPARTMENT OF LABOR } IN RE: SINGLE SAMPLE & PLAN VERIFICATION } MINE SAFETY AND HEALTH ADMINISTRATION } Sheraton Inn Suites 2601 Richmond Road Lexington, Kentucky May 15, 2003 APPEARANCES JON KOGUT FRANK HEARL MARVIN W. NICHOLS, JR. ROBERT THAXTON LARRY REYNOLDS GEORGE NIEWIADOMSKI P R O C E E D I N G S MR. NICHOLS: Good morning, my name is Marvin Nichols and I am the Director of the Standards Office for MSHA. I'll be the moderator for today's public hearing. 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. You may have to come up front. I'm doing the best I can do here. Go off the record for a minute. I think we might have done something... (Off the record.) MR. NICHOLS: Today's public hearing is being held to receive your comments on two related MSHA regulatory actions. First, we have reopened the record for comment on the joint MSHA/NIOSH single sample proposed rule that was originally published on July the 7th, 2000. Second, we have reproposed the plan verification rules. 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 upon the 1996 recommendations of the Secretary of Labor's Advisory Committee on the elimination of pneumoconiosis and the comments received in response to the previous proposed rules 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 introduce our panel. To my left is Bob Thaxton. Bob is technical advisor in coal mine safety and health. Larry Reynolds, seated next to Bob, is with the Solicitor's Office. George Niewiadomski is a health and safety specialist in coal mine safety and health. To my right is Frank Hearl. Frank is senior advisor in the Office of the Director of NIOSH. Next to Frank is Jon Kogut. Jon is a mathematical statistician with the Office of Program Policy Review with MSHA. And at the end of the table is Ron Ford. Ron is an Economist with the Standards Office. We also have two other MSHA individuals, Pam King, in the back of the room, is a reg specialist. Hold your hand up, Pam in the Standards Office. And also Rodney King is with us. Rodney, I apologize for that. Rodney Brown. Rodney, come in and raise your hand. I will try to make some kind of further amend to you, Rodney, for doing that. But it's been a long week. I can't believe I done that. Let me mention how today's hearings will be conducted. The formal rules of evidence do not apply at these hearings and the hearings will be conducted in an informal manner. Those of you who have been notified -- those of you who have notified MSHA in advance will be allowed to make your presentations first. Following those presentations, others who request 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 completion of my opening statement, Bob Thaxton will give you an overview of the proposed plan verification rule. A verbatim transcript of this hearing is being taken and it will be made available as part of the official record. Please submit any overheads, slides, tapes and copies of your presentations to me so that these items may be made part of the record. The hearing transcript, along with all of the documents that MSHA has received to date on the proposed rule, will be available for review. We intend to post a copy of the transcript on the MSHA web page at www.msha.gov. If you wish to obtain a copy of the hearing transcript before then, you should make your own arrangements with the court reporter. We'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 plan verification proposal and the single sample reopening from June the 4th to July the 3rd. We expect to publish a notice in the Federal Register stating just that soon. We're in the process right now of getting the joint signatures on the single sample rule. As you know, we have scheduled two additional public hearings to address these two proposed rules. They will be held in Birmingham, Alabama on May the 20th and in Grand Junction, Colorado on May the 22nd. The hearings will begin at 8:00 o'clock each day and end after the last scheduled speaker. Let me give you some background on the two proposed rules. First, the single sample proposed rule, which was originally published on July the 7th, 2000, would allow MSHA to make compliance determinations on single sample results. The Agency would no longer use the averaging method to determine if miners 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 single sample measurements rather than averaging multiple samples for compliance purposes, will better protect miners' health. Single samples can identify and remedy excessive dust conducts more quickly. Single sample measurements have been used for many years by OSHA and at metal and non-metal mines in this country. MSHA and NIOSH are jointly reopening the rule 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, health effects, quantitative risk assessment, technological and economic feasibility and compliance costs, which has been added since July of 2000. For example, we updated the preamble to include the most recent information on the prevalence of pneumoconiosis or CWPE, or black lung in coal miners examined under miner's choice program during the 2000/2002 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 finding 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 reproposed plan verification rule. This proposed rule supersedes the one published on July the 7th, 2000. MSHA held three public hearings on the previous proposed rule during August 2000. Many commenters urged the Agency to withdraw their earlier proposed rule and go back to the drawing board. Some commenters believe that MSHA had failed to adequately address their concerns, the reforms in the federal dust program recommended by the dust advisory committee, by NIOSH in its criteria document, and reforms urged by coal miners since the mid 1970's. After carefully considering all the facts, issues and concerns expressed by commenters, MSHA is proposing a new rule in response to the comments made to the July 7th, 2000, proposed rule. Now, Bob Thaxton will now give us an overview of the new plan verification proposed rule. And we're also posting Bob's presentation on the web site for future reference. We would ask that you hold any questions regarding Bob's presentation until you come up to give us your comments. And then we'll deal with those at that time. MR. THAXTON: Okay, I'm going to try to walk through a general overview of what we see as far as the single sample and the plan verification rules. Can you hear me in the back okay? I'll try to speak loud because I can't get the mike over here to me. The first thing that I'd like to bring out is why are we doing this? We see a need for doing something with the respirable dust program because if you can look at what we've seen over the past twenty years or so, we're seeing black lung from 1981 through 2002. This has a very little decrease. We had 4.1% prevalence of black lung in 1981 and we're at 2.8% under the current data that we have for 2002. That data in 2002 is a combination of MSHA and NIOSH data. If you remember, MSHA was conducting and providing free chest x-rays for miners for about a three year period. During that three year period, over 20,000 x-rays were collected. That was combined with the data that NIOSH receives from the voluntary program that is administered by underground miners through underground operations, the mine operators, and the combination of those two sources of data produced the 2.8% prevalence rate that we see for 2002. At the same thing though, in the black boxes you'll see a number that says 13% down to 8% in 2002. That is the percent of samples that are exceeding the 2.0 mg standard each of those periods. The number that's in the parentheses is the average concentration based on operator designated occupation samples. Those are samples that are collected on a continuous miner operator, longwall operations, either shearer operator or the person that's working furthest down wind. So you can see that we're not seeing much of a change in the prevalence of black lung but we're still seeing a significant percentage of samples that are exceeding the 2.0 mg standard. This package consists of two rules, the single sample and the plan verification. They go together. What are we getting out of them. Well, we want -- these rules are designed to develop effective plans, provide for control of dust and the monitoring of the effectiveness of those controls. The single sample rule provides for a new finding. That finding is that the average concentration can accurately be measured over a single shift, contrary to what we currently have is that we have to average multiple samples. This rescinds the 1972 finding on the accuracy of single sample. It does also add a new standard where the Secretary may use a single full shift measurement to determine the average concentration over the shift that we collect the sample. Plan verification. Under plan verification, each underground mine operator must have a verified ventilation plan for the dust control portion. The plan will be verified under actual mining conditions by operator samples. MSHA assumes the responsibility for compliance and abatement sampling at underground mines. And it's important to realize that plan verification only effects underground mines. Surface mines are not effected by this particular rule. MSHA samples will be used to set reduced standards due to quartz. There will no further use of operator samples at underground mines to effect a reduction in standard due to the presence of quartz. Under the verification of the plan what I want to do is compare what we currently have under the rules that are in effect right now, versus what the 2003 proposal will provide for. On verifying a plan, currently MSHA samples are used to verify or approved the plan. That plan is based -- is approved based on the average of multiple samples. Those are full shift samples that are taken for 8 hours or less, portal-to-portal and they are taken at a minimum of 60% of average production. Under the 2003 proposed rule, we changed this to where operator samples are used to verify the effectiveness of a plan at underground mines. Those samples will be full shift samples. That's production time. What that means is that the samples will be put on people, they will be turned on when the miner reaches the section or the MMU, and will not be turned off until the miners are leaving the section. So if the production time on a section is 9 hours, those samples will be run for 9 hours. If it's 7 hours, they will be run for 7 hours. Whatever time that the miners spend on the section, when they get off -- when they get to the MMU and when they exit the MMU is how long those samples will be running. They will be run at higher than average production. We're going to get into the production a little more. We're going to be going to what we call the VPL. VPL is an acronym that stands for verification of production level. That is a level that we're going to insist on for these samples that will be more representative of what we consider normal operations. The operator samples will be compared and they will have to meet separate quartz and coal mine dust verification limits. We have a table in the rule that stipulates that if the operator collects one shift of samples, what level they have to meet. What these samples are designed to do is to provide 95% confidence that the 2.0 mg standard for respirable dust and the 100 micrograms for quartz are met. If the operator gets one shift of samples, those samples must meet, for example, 1.71 mg for respirable dust and 87 micrograms per cubic meter on quartz. Those two numbers, when you apply statistics, gives us a 95% confidence that those samples shows that and would meet the 2.0 mg standard and the 100 microgram standard. They also provide for the use of PAPRs or administrative controls on any mining unit only as a supplemental measure after exhausting feasible engineering controls. Now the key here is is that they have to exhaust feasible engineering controls. There would be no controls removed from mines because people want to use some other type of controls such as a PAPR or administrative controls. Mine operators will be required under this program to maintain their engineering controls that they have in place. Plan information. Under the current rule, like I said, MSHA sampling is conducted at 60% of the average production. And there are no records of production required to be maintained by a mine operator. We determine 60% of average production usually by just talking with miners, through talking with mine operators, determining somehow that -- you know, what they normally produce and then we take 60% of that and that's what our people look for in order to determine that their samples are valid. Under the 2003 proposed rule, it requires the 10th highest production level to verify plan effectiveness. The 10th highest production in the last 30 shifts. I'll show you a chart as an example of how this works and what level we will say actually collecting samples at. It also requires the recording of production and maintaining those records for a period of six months. The operators will now be required under this proposal to record production on each and every MMU and maintain those records then for a six month period so that they can be reviewed by MSHA and representatives. Those records for production is for actual production, not clean coal. It's for coal, rock, whatever is mined. They have to -- they have to report the total production, raw tonnage for that particular section. When we say the 10th highest production, what is that? What's it equate to? This is an example of a longwall in northern West Virginia. The last 30 shifts of production are represented by each of the little ovals. If we come in and look, the average production was shown to be 6,295 tons over those 30 shifts. Under the current regulations, MSHA collects samples to approve a plan at 60% minimum. So instead of 6295 tons we would approve a plan at about 3700 tons. That would indicate valid samples to us. We were asked at one time to bump our approval of production up to 90% of average. Well, 90% of average still wouldn't get you but to about 6600 tons, so -- I'm sorry, 5600 tons. So we're still below the average. What the proposed rule does, it says the 10th highest. And the 10th highest production on this particular example is about 7500 tons. So you can see from the example that we're showing is that we're looking for operators to collect samples to prove that their plan works at much greater than what the 60% of average that we currently use, even greater than what the average is. It goes to the 10th highest. What that means is that we end up at the 67 percentile. That is, two-thirds of the shifts that miners operate, production is going to be less than that number. One of the third of the shifts it will be higher. So we're faced -- we think with this that we are getting more representative samples that truly will show whether the controls are in place and the samples show that they are in compliance, that those controls really are working to maintain control of the dust. Use of PAPRs, or powered air-purifying respirators, everybody calls them PAPRs. Under the current rule, the current rule allows the use of this type of respirator. If it's used in accordance to a respiratory detection program as spelled out under 72.700 of the current regulations, then an operator can get credit for any citation that's issued to be classed as a non-S&S violation. And what that effectively does is it lowers the penalty to a much lower level and because it assumes that there are -- there is a degree of protection provided to the miner. Under the 2003 proposed rule, this proposal permits the use of PAPRs when all feasible engineering controls have been exhausted. Again, like I said, only after they have exhausted all feasible engineering controls. And that's a determination that will be made by the Agency at the highest levels. Currently that is written into the rule that the Administrator for Coal is the person that would actually make that. Only loose-fitting powered respirators with MSHA and NIOSH approval may be used. Currently that is one unit. It's referred to as the 3M Raytel helmet. No other unit has both approvals and fits this criteria. If the operator opts to do this, they must provide a respiratory protection program as part of the approved ventilation plan. The approved plan will incorporate the respiratory protection program. That respiratory protection program has to have elements that says who's in charge of the program. One person at that mine has to be responsible for it. Who's going to take care of the units, who's responsible for cleaning it. How often do they have to be cleaned? Who checks the filters? How often are the filters replaced? Which filters are being used? Who's going to go in and disinfect the units? Is the helmet assigned to individuals as opposed to multiple people? If it's assigned to an individual, how is it marked? How are they stored in between shifts? All that is spelled out in the approved respiratory protection program that becomes part of the plan. That means it's part of the plan, it's part of the regulations for that particular mine. And anybody that doesn't follow those, the operator is subject to a violation. You must maintain the dust levels as low as possible with feasible engineering controls. Before you're allowed to use respirators, as far as the PAPR, the operator will have to go through a series of testing by putting engineering controls in place and seeing what the test results are. Once we get the dust levels to the lowest attainable level, then we'll have exhausted all feasible controls at that point, all those controls have to be maintained. The operator cannot remove anything just because he's going to use a PAPR program. So whatever levels of control -- ventilation, whatever levels of water, sprays, scrubbers, whatever else is being put into that MMU to control dust, whatever is able to get it down as low as possible, has to be maintained from that point forward. The use of a PAPR has a protection factor of 2 to 4. It's depending on the ventilation air velocity assigned to -- and it's assigned to that particular mechanized mining unit. We assign the protection factors to the MMU, not to the class of respirator. That is because this particular type of respirator is effected by the ventilating air quantity on the face. The faster the velocity of air going down the face, the less the protection afforded by the PAPR. So they give a lower protection factor. The protection factor, what does that mean? Well, the protection factor of -- as an example of 4, is an indication that the air being breathed by the miner inside the PAPR is one-fourth the concentration of the air outside the PAPR. So if you're exposed to outside the PAPR at 2.0, as an example, the air inside the PAPR would be .5. Sampling requirements. Under the current rule, operator bimonthly compliance sampling at underground mines. Again, like I said, we're only looking at underground mines here. This has no effect on the surface mines. The operators are cited for failure to submit the required samples. And there can be citations issued for exceeding the applicable standard. Operators collect abatement samples to determine compliance after citations are issued under the current program. And MSHA conducts quarterly sampling at this time on MMUs, section DAs and Part 90 miners. Citations can be issued those for exceeding the standard as well. Under the 2003 proposed rule, the operator will be required to collect plan verification samples for initial approval. And in the designated MMUs will be collected one sample each quarter for a confirmation that the controls continue to be effective. What that amounts to is that the operator will be collecting samples to verify their plan. When they initially submit it to the Agency, they'll have to show that that plan is capable of working. Those areas where MSHA finds a potential problem, that is, we find a sample that exceeds the applicable standard, those entities or those MMUs will be designated that they will have to collect a sample each quarter to prove to the Agency that their plan is still effective in controlling dust. There will be no citations issued for exceeding the applicable standard based on any of these operator samples. The operator, however, is required to take action to reduce concentrations when any sample exceeds the standard. And that corrective action has to be recorded so the Agency can review it then during our inspections. Failure to take that corrective action can result in a citation. This mirrors what we do currently and have for a number of years on such things as methane readings that the operator is required to take on themselves. They take a reading, find high methane, they have to report it and record what corrective action they've taken to get rid of that high concentration. Failure to take corrective action on their own can be a violation. We did did not cite high methane content, we cite the fact that they failed to take corrective action to address that situation. It's the same thing we would do now for dust samples. MSHA collects all samples to determine compliance and abatement of citations. All MSHA determinations will be made on a single full shift measurement and the citations issued for exceeding the applicable standard. I won't get into what levels we issue citations at and how these determinations are made, but the key word is -- here for us is that all MSHA determinations will be made based on single samples, single full shift measurements. Not the average of multiple samples. Compliance and noncompliance determinations. Under the current rule we've used the average of multiple samples to make compliance/noncompliance determinations at all coal mines, surface and underground. It's basically the average of 5 samples on 5 different shifts. If the average concentration exceeds the applicable standard by 0.1 or more, than that's an indication of noncompliance. But we're looking at the average of 5 samples on 5 shifts to make that determination. Under the 2003 proposed rule, single sample determinations at all coal mines. This effects both surface and underground. The single sample provision is for all coal mines. So the single sample determinations will be applied uniformly across. Noncompliance or a citation level is, for example, on a 2.0 mg standard, would be 2.33 mg per cubic meter. That means if we take a sample, one single sample, one shift, if it's 2.33 and they're on a 2.0 mg standard, that indicates noncompliance. That level of 2.33 gives us a 95% confidence that the 2.0 mg standard has been exceeded based on one sample. Now remember the previous ones that were 5 five samples on 5 shifts and averaging them to come up with the same level of confidence that you'd exceeded the standard by 0.1. The citation levels for all standards, 2.0 mg all the way down, are specified in the rule itself. There is a table in there, so there's no calculation that you have to go through. You can look. If you're on a 1.5 standard, you can go across and see what the citation level would be for that particular standard. Why are we looking at averaging and trying to get rid of it? Well, this is an example of an actual series of samples that were submitted to the Agency. It's an operator samples, 5 different samples submitted on a continuous miner operator. You can see we have the first sample at 3.2; the second sample at 1.6; third at 1.5; fourth at 0.8; fifth sample of 3.1. You average those 5, it comes out to 2.0. The operator would be considered in compliance, no actions taken whatsoever to address the two samples that show over 3.0 mg. We can see from this example that we currently are finding people being overexposed on individual shifts. That overexposure on individual shifts if what we want to address with these particular rules. We think it's important that we try to control exposures on each and every shift. Controlling exposures on each and every shift will bring the prevalence of black lung down, so that we have fewer people getting the disease. When you have those situations, that's currently, the operator has engineering controls in place right now. But yet the samples that we collect and that the operator collects, while we're showing the average as being in compliance, we're showing that people are actually being exposed to higher dust levels, but it's okay because the average is in compliance. Under this situation, if we took, for example, that this was -- the operator was doing everything possible, there were no further engineering controls available to them, we would still insist that they look at these results and we would say, okay, we've gotten this amount of dust, we've got good compliance on three situations, but two situations here we can see that it's not. We want to try to drive that as low as possible. Now, we've got all the engineering controls in that are possible right now, we recognize that there's nothing else available, therefore, they put something, say a PAPR program in place. That PAPR program provides a degree of protection to the miners in those situations so that they are not being exposed to those high dust concentrations. In the meantime, the Agency will still continue to review what the operator is doing, the engineering controls, the situations in that mine as to how they operate. And as any additional controls become available, that operate will be required to put those controls in place to drive those concentrations of 3.2 and 3.1 down to the 2.0 mg standard whenever possible. Those plans will be reviewed every six months by the Agency to insure that we are checking every place to find out if those additional controls or additional changes in the mine system that we've allowed controls to be used. We've made it a point that the controls that are being put in place are important. We want to verify that controls indeed are capable of maintaining compliance. Controls are only as good as long as they're actually there and working. Under the current rules, under Part 75, there is a requirement that every mine operator has to examine the dust controls that are listed in his plans at the beginning of each shift. Now is that the beginning of the shift before production starts, or if it's a hot-seat operation where they don't stop production, then it has to be done within the first hour of a shift. Those controls have to be looked at, have to determine whether they're producing -- they're putting enough air up there, enough water, the water spray is working, the scrubber is working, the dust collection system or roof bolter is working. All those things have to be checked at the beginning of each shift. Under the 2003 proposed rule, we're maintaining that requirement. However, it becomes a little more important now because we are going to get plans that are going to have to be verified. Those controls that are in the plan are going to be more representative of what's actually necessary to maintain compliance at all times. Miner participation. Under the current rule miners have a right to accompany, with pay, MSHA personnel during MSHA sampling. If an operator is submitting a plan, the operator notifies the miners' representative of plan submission, revisions and posts it on the bulletin board. The miners' reps may submit comments during the answer review then for consideration. Under the 2003 proposed rule, miner participation during operator sampling. Remember now, we're saying that the operators will be required to collect verification samples and some operations will be required to collect quarterly samples. The operator has to notify miners of the date and time prior to the verification or quarterly sampling. So they'll be -- it could be posted on the bulletin board, it can be announced. Somehow they're going to have to notify miners before the date and time that the sample is to be collected under these conditions. The miners must be provided an opportunity to observe that sampling, but there is no guarantee of pay. There's no special pay provisions for that. This mirrors what's in the current noise regulations which says that miners have the right to observe noise samples being collected but there is no guarantee of pay. Miner participation during MSHA sampling, there is no change. MSHA comes in to collect samples for compliance or abatement sampling, the miners' rep has the right to accompany MSHA with pay. The requirements for plan submissions for -- initial or revisions, remain the same. They will be posted. Miners' rep has the right to submit any comments to the Agency while we're doing the review of that plan. Use of personal continuous dust monitors or PCDMs as -- the acronym. Personal continuous dust monitors that are a technology that's under development. It's not currently commercially available. The current rule has no consideration for those units. They're not permitted to be used. Only an approved sampling device approved under the regulations can be utilized for sampling at a coal mine at this time. The 2003 proposed rule stipulates that any unit that the Secretary of Labor approves with a conversation factor will be acceptable. What this means is that the units that are under development right now, if they are approved, the Secretary of Labor develops a conversion factor that is related to the current sampling technique, then it would be allowed to be used. What it amounts to is that you see the units that are used right now have a formula for calculating what's called an MRE equipment. The original dust standards were set up under an MRE instrument. The current sampling devices have a conversion factor that converts what concentrations are determined from that to the MRE equipment. Any new instrument that comes out would have to have a similar conversion factor that would bring you back to the same standard that we originally started with. Under the use of personal continuous dust monitors, designated miners must wear the full shift, portal-to-portal. Anybody that comes under the program to utilize these -- miners assigned to wear a PCDM would be required to put the unit on the beginning of the shift, wear it for a full shift and not take it off until the end of the shift. It's portal-to-portal, full shift. Use of that instrument though permits the operator to use administrative controls without first exhausting engineering controls. Because they're now taking a sample on an individual for the full shift. So moving people around can be done without effecting an approval from the Agency first. Because you're doing continuous monitoring of that individual. There would still be no citations for overexposure. Because again, it's an operator sample. But they may be cited for failure to take action to reduce overexposures. Anybody that uses personal continuous dust monitors, they would be required to record those readings at the end of each shift. Any indication of an overexposure that is not addressed could be cited. Because the operator has to take corrective action any time they're notified of an overexposure. What are the benefits of those two rules as a package? One, plan parameters that reflect actual mining conditions that have been verified at high production levels. Again, we're trying to get all the controls in place that are actually necessary to maintain compliance. The operator then has to collect those samples at that high production level, submit them to the Agency and they have to meet the criteria for the sample results under both the respirable dust and quartz to show that that plan truly provides control of the respirable dust in that section. No operator collected samples used to determine compliance. It's been a thorn in everybody's side for a long time. That the operator collects samples, they turn into the Agency. This does away with that. All compliance determinations, all compliance sampling will be performed by the Agency. Provide protection for miners when feasible engineering controls have been exhausted. We have situations as I showed you in that example where we make -- we have engineering controls in place right now and the average shows the compliance. But we see that there are people being exposed to high concentrations. If that example is an example also of all feasible controls being in place, then we ought to do something to protect those people while they're in those situations. And that's what this rule provides for is some protection when they've exhausted those controls. It also has provisions for the use of personal continuous dust monitors. It's a technology that's coming out. It is not available at this time, it's not commercially available, has not been proven. However, if it does become available and is proven in the future, then we wanted to have something in here that would at least allow them to start coming into the mine industry. The effect of this rule package is that we see that there will be a reduction in the prevalence or the number of cases of black lung. Now, we used a very conservative estimate for the simple reason there's not a lot of data available that reflects what the new rules would provide. So we used data that we have currently available. And from that we've projected a reduction of 42 cases of black lung. Forty-two may not sound like a whole lot but if you're one of those 42 that's important. We have broken that down for the number of DO, which are designated occupations, the people that are continuous miner operators, shearer operators, the person working the furthest down wind on a longwall shearer. NDOs, other people working in the face. Roofbolters. And a total for all those occupations combined of 42. The combination of these two rules, there's a lot of little nuances that you can go through. What does that mean? So we put together three scenarios here that we'd like to walk through that will take you through and give you an indication of what this will mean. As an example, you've got an operator that's going in to verification of his plan. The first verification sample is collected. Now it's not one sample. It's multiple samples collected on one shift. So the operator collecting on this particular one, the miner operator and the roofbolter. The miner operator's first sample is 1.6 mg on dust, roofbolter 1.7. The miner operator gets 72 micrograms of quartz, the roofbolter gets 92. Remember, I said that there are critical values for both respirable dust and quartz that the operator has to meet to verify their plan. The critical values for one shift of samples is 1.71 in respirable dust and 87 micrograms on quartz. Well, they meet the 1.71 for respirable dust but you can see the roofbolter quartz level exceed the 87 micrograms. This indicates that the plan has not been verified on one shift of samples. The operator then gives notification. He takes a second shift of samples. Samples the same occupation and you get the same readings, dust and quartz. And you can see now that we get 1.63 and 1.69 on the dust and 71 micrograms and 91 micrograms on quartz. Now, the 91 still exceeds the 87. But we've got two shifts of samples now. And just by this table it will show you for two shifts of samples the two critical values have to be at or below 1.85 on respirable dust now and 93 micrograms on quartz. All four reads, the two shifts of samples, are at or below those two critical values. So, therefore, the Agency determines based on that that the plan has been verified. The controls that the operator has in place will result in compliance with 95% confidence. We've got a verified plan in place, now MSHA comes in collects the first bimonthly series of samples. We collect give samples normally, miner operator gets 1.62 on dust, 78 micrograms on quartz; miner helper gets 1.71 mg on dust; the shuttle car operator gets 1.41, excuse me that it's not in the right column; roofbolter number 1 gets 2.38 on dust, 138 micrograms of quartz; roofbolter 2 gets 2.42 on respirable dust, 141 micrograms of quartz. The Agency writes one citation for the roofbolter occupations exceeding 2.0 standard, citation threshold value of 2.33. Because the roofbolters exceeded the 2.33. If both roofbolters exceeded, we only write one violation because the roofbolter is one dust generating source. Whatever the operator does to address the dust concentration for that particular machine is going to address both occupations. So we only write one violation. But it's based on one shift of samples, not the average of five shifts. The operator has to take corrective action and then notify MSHA within 24 hours that the action has been taken. The notification within 24 hours of the completion of the corrective action is so that the Agency then can schedule to come in and collect abatement samples if necessary. That doesn't mean at the end of the 24 hours that the Agency's automatically going to be there. So it's not prior notification to the Agency. It's just the operator's way of telling us that they have completed the corrective action that's necessary. They have to maintain that from that point forward. The Agency may come in a week later to do the abatement sampling. It still will be an unannounced inspection. MSHA collects the abatement samples in this situation. We determine -- we will determine compliance and noncompliance and will terminate the citation. At the same time though, we have indicated here that this is beyond the 2.0 mg standard. We have an indication of high quartz exposures, greater than five percent, because of that the Agency needs to make sure -- find out what the people are exposed to truly so that we can get an appropriate standard in place that will protect people from the high quartz. Typically with the -- the determination of quartz is based on the last three MSHA samples collected on each occupation. If we come in and do a bimonthly series of samples, we're only collecting one sample. You would think that you may need to wait two additional bimonthly periods before MSHA will get three samples that can be averaged in this situation. However, the Agency has put in a document into -- onto our web site that represents our inspection procedures that are in draft form as to what we expect to do when these two rules go out. What we've said in that draft document is that because of this situation of an indication of exposure to high levels of quartz, we think it's very important to go out and get those additional samples and quickly so that we can establish whether there truly is an exposure to high levels of quartz and get an appropriate reduced standard in place. So what we do is we collect two additional shifts of samples in the next 15 days. Those samples will be utilized then as the true samples total to establish whether there is a problem with quartz and we will set an appropriate standard based on that. Now the next thing is is those samples are also full shift, just like you'd normally collect. But it's two additional shifts of samples. They will all be looked at for compliance, noncompliance. So it's a full investigation on dust and quartz. Because of these high sample results, the operator also exceeds the criteria that we have set for doing quarterly sampling. The quarterly sampling because we look -- we're taking single shift samples. One shift of samples. We use the criteria levels of 1.71 on respirable dust and 87 micrograms on quartz. Any sample by MSHA that exceeds either one of those two numbers, kicks the operator into quarterly sampling of their own to verify the plan. As you can see from these readings, the operator exceeds that, so this particular MMU would be required to submit quarterly samples to show that the plan continues to be effective in monitoring and protecting people. I made a slight change in that scenario. Number 2. The first samples that are collected up here for verifying the plan are identical to the first scenario. So we still are verifying the plan on two results. Do we have a verified plan in effect? MSHA comes in and collects bimonthly samples. This is where I make a change. Here we show all samples collected by the Agency are below 2.0 mg. The quartz levels are 78 micrograms as the high, down to a low of 47 micrograms. We are showing on this single shift of samples that this entity is in compliance. There is no overexposures found. However, like I said, we have an inspection procedure that we put out at the same time that we put these two rules out so that people could look at them. Under that inspection procedure, we have a situation where we say a person is able to maintain compliance below the critical values for single samples, which is the 1.71 on respirable dust and 87 micrograms on quartz, on a series of MSHA samples, then we would skip the next bimonthly period. We didn't need to expend manpower to sample that entity again because we think it's well within compliance. We make that decision because MSHA is only collecting samples for eight hours, portal-to-portal and it's not necessarily the full time that you're on a production shift. And because, like I said, the samples that the operator collects to verify their plan have to be in the 10th highest production or higher. Two thirds of the shifts are going to be below that. So it's likely when the Agency comes in to collect its samples, that we're probably going to have lower production than what the plan was verified at. At the same token, mine operators usually say, okay, this is my air quantity that's in the plan. They usually put a little more in there because they don't want to be right on the minimum, they want to have a cushion so that they're not in violation. So we want to take those things into account and we do a conversion, relational factors, so we can address -- add that to our dust concentrations before we make a decision whether that entity actually qualifies to be skipped the next bimonthly period. Under this particular one, I'm going to show that the verification was conducted at 800 tons production, when MSHA collected the samples there was 750 tons. We show that the air quantity for verification is at 9800 cfm and MSHA's sample was collected at 10,000 cfm. We do a relational factor between the 750 and 800 and the 9800 and 10,000 and we come up with factors of 1.06 for the production and 1.02 for ventilation air quantity. We take the highest dust concentration, the highest quartz concentration, multiply it by those factors. From that we see that the 1.62 highest dust concentration goes to 1.75 and the 78 micrograms of quartz goes to 84 micrograms. Remember, I said for them to get us to skip the next bimonthly cycle for sampling, they have to meet the 1.71 and the 87 microgram limits. So you can see automatically the 1.75 that we calculate exceeds the 1.71. This entity does not quality to be skipped the next bimonthly period. They will be sampled the next bimonthly period by MSHA. We will only skip those entities that we feel highly confident are maintaining good and highest dust practice. So that's why we -- we do not want to take samples at lower production and higher plan quantities and saying that you meet the qualifications to skip a cycle. We want those related back to the verification numbers as close as possible. The third scenario is the use of PAPRs. For a PAPR use scenario we've taken a Mine A, it's a longwall. We're saying that they have installed a shearer clearer, shelf sprays, pan sprays. They have a maximum air velocity of 500 feet per minute along the longwall face and their verification production level is 16,000 tons per shift. For argument sake and for demonstration, we're going to say that this is the only controls and the maximums that this particular entity can put in place. And because of that, the operator goes in, collects their verification samples and it's not just one set of samples. You're going to see this go through -- the operator's going to have to go through probably multiple sets of time to verify a plan, with appropriate controls. Once they have gone through this entire scenario, just for demonstration purposes and showing that the concentration found for the shearer operator during all the verification sampling came out to 1.9 mg of dust, 130 micrograms of quartz. For the 060 occupation, which is the person working furthest down wind on the longwall face, was 2.0 and 145 micrograms of quartz. We're showing now that -- MSHA has determined that you cannot -- this plan cannot be verified. It's not meeting the 2.0 mg levels and 100 microgram level. So we've -- but we've also made the determination now that all feasible engineering controls are in place or in use. So there's nothing else that can be required under the engineering side. So the operator says I'm going to go to a PAPR program. He does that. That full program has to be included with the ventilation plan. When he says it becomes the law for that particular MMU, just like the ventilation plan becomes the law for that mine at this time. This will be rolled in as a part of that approved plan and has to be complied with at all times. All miners working inby the shearer must wear a PAPR in accordance with the approved plan. On this particular one we're showing that down wind from the shearer operator on, there's a problem with compliance. So we're saying on this particular plan, anybody that works from the shearer operator inby, has to wear a PAPR at all times. If the Agency comes in and does an inspection and somebody's not wearing their PAPR, the PAPRs are not being used in accordance with the approved plan, that is, the full respiration protection program, they're in violation of the plan and citations will be issued. And the operator risks losing that particular provision of his plan. On this particular longwall the average velocity across the longwall face was found to be 490 feet per minute. The protection factor assigned to the MMU will be 3.2. Remember I said protection factors can be somewhere between 2 and 4. 2 is the minimum, 4 is maximum. It can be inbetween there, based on the velocity of air going across the face. On this particular longwall we have 490 feet per minute as the average velocity across the longwall face. To calculate the protection factors the formula of 2 times the quantity of 800 divided by whatever velocity is found on that particular entity. So in this case it's 800 divided by 490. That formula results in a 3.2 protection factor. The plan that's submitted must maintain all engineering controls that were determined to be feasible by MSHA. All those controls as far as the velocities, the water sprays, scrubbers, anything else that's found to be able to reduce dust to some extent on that longwall, at that point we'd say, okay, have you exhausted all feasible engineering controls? All engineering controls in place at that time must be included on the plan and must be maintained from that point forward. They cannot reduce them or take anything off. The equivalent concentration of 2.0 mg would be 0.62. Remember, we said it's -- the equivalent concentration is for somebody wearing a PAPR. It's the protection factor divided into the concentration outside. So you take 2 and divide by 3.2. It's equivalent to .062 millimeters per cubic meter. That would give you the equivalent concentration for that particular miner working down there. That concludes the overview. MR. NICHOLS: Okay, Bob, thanks. As I mentioned in my opinion statement, MSHA and NIOSH are partners on the single sample rule. And Frank Hearl would like to make a statement and give us an update on the development of the personal dust monitor parameters. MR. HEARL: Thank you, Marvin. Good morning. The National Institute for Occupational Safety and Health, NIOSH, joins MSHA at the table today to hear your comments on the proposed rule for single full shift measurement of respirable coal mine dust. This proposed rule amends Section 72.500 in Title 30. That the Secretary may use a single full shift measurement to determine the average concentration of respirable dust on a shift. The Mine Act made this provision a joint action by NIOSH and MSHA, which is why I'm at this table today. I'm also here to provide you with a brief update on research that's being conducted by our Pittsburgh Research Laboratory on a continuous -- personal continuous respirable dust monitor and a research that's ongoing. The device that we are currently testing as a prototype looks like this and I'll pass these pictures around for you. But essentially it's an integrated monitor that's integrated with the CAP lamp. The device has -- works on the principle that's called a TEOM, which stands for tapered element oscillating microbalance. And that language means that basically there's a device inside that's vibrating and the degree that it vibrates at or the rate that it vibrates at is based on the amount of -- or the mass of that thing, how much weight it has. As the device samples, it picks up mass from the respirable dust in the environment and that rate change for that amount of mass that's being picked up is -- causes a rate change in the vibration of the element that's inside it. And that can be related to the amount of dust that's in the environment. It records the concentration of dust instantaneously and accumulates that reading in the processor inside the instrument. So that a miner could look down and see what the instantaneous dust concentration is, what -- how much he has accumulated in exposure over his shift and also can give you a projection as to what the final dust load would have been over the full shift if they continue to be exposed at that rate of dust concentrations. The device right now has undergone lab tests and was successfully tested in the laboratory to be able to measure dust equivalent to what is now done by the conventional filter and cyclone pump sampler. For the next two months, starting in May actually and running through August, the device is going to be actually taken out into underground mines. This hasn't happened yet but it's starting basically this week actually. If the device passes the field test, then it would be ready for commercialization from that point on and testing for acceptability under the approval for equivalent instrument. So that's where we are at with the device right now. Like I said, it's successfully passed its lab tests and it's just beginning to be tested in the field. How that will come out we don't know. Whether there might be other adjustments that might need to be made, that's a possibility because as you know things don't always perform in actual -- in the coal mining environment in the same way they might perform in the lab. But the tests to date have been successful. So that's where we're at right now. MR. NICHOLS: Thank you, Frank. I have about 9:15. Let's take a short break until 9:30 and we'll start back up then with taking comments. (Off the record.) MR. NICHOLS: Our first presenter will be Joe Main, the Administrator for Occupational Safety and Health, United Mine Workers. And if you would, since we use different court reporters in different hearings, if the presenters would please spell their names for the court reporter. MR. MAIN: Yes, my name is Joe Main, M-A-I-N. And I represent coal miners and as pointed out, I'm the Administrator of Health and Safety for the United Mine Workers of America. And I'm here today representing a lot of coal miners that couldn't be here. And as I pointed out earlier in my testimony in previous hearings, we're learning more about this rule as we go and it is very complicated and complex rule that was launched by MSHA in the midst of a number of activities that are very draining on those of us in the mine or in the health and safety field. A number of mine accidents and the investigation is still ongoing in those, the rule making, one which involves overhauling the standards which we want to make appropriate in reducing air belt increase in coal faces. And what is concerning to us is that it actually ties into this proposal that we finally realized. What I want to do today is -- I just got a copy of the new document that MSHA put out due to these rules, which is called prudently asked questions. And there's some information in here that's now being provided to the public and it actually begins to interpret some of the rule making that we want to address as part of my testimony this morning. I haven't had a chance, just only briefly, to look at this, so we'll probably have some more questions with regard to that later. I also want to address some issues and -- as we try to clear up the confusion here about this rule. And this is a complicated rule that miners or us, the safety professionals, can't understand. I'd like to begin this morning, if I could, with some questions to NIOSH regarding the proposed rule. And one of the things I think is a problem here, there's no clear addressing of what this rule actually does. And I think the public and miners deserve that. And I'm concerned about some of the messages coming out about this rule, what it does or doesn't do. It does not really address the true nature of it and I hope to help clear some of that up today for all of us. With regard to the rule making, and part of this rule making as I indicated, involves the 1995 NIOSH criteria document that was submitted by NIOSH to MSHA for rule making, as proposed recommendations for standards. Addressing some of the very issues engaged in this type of rule making. In looking at that NIOSH document, it explicitly said that they recommended to MSHA to introduce a standard to reduce the respirable dust standard from the existing 2.0 mg that's been in the Mine Act since 1969, to 1.0 mg and taking into account extended work days and work weeks. Does NIOSH still stand behind that document? MR. HEARL: NIOSH hasn't changed -- or has no new evidence to suggest that we wanted to change our document. So that is our current policy. MR. MAIN: So NIOSH does recommend a 1.0 mg standard as laid out in the NIOSH document? MR. HEARL: Yes. And you need to also recognize that NIOSH does have different mandates than MSHA has in coming up with recommendations -- MR. MAIN: Let's be sure that -- yes, we'll clear the record, what NIOSH has recommended. Now, NIOSH did an extensive study of the mining industry, of miners' exposure, I understanding in developing that document. By monitors, by x-rays that the Agency has taken and looked at, in a natural picture on miners' exposure. They've clearly done a thorough job of trying to assess the current state of affairs when it comes to miners getting pneumonoconiosis and what the standards appear to be and was leading to that, based on the data that was available. Is that a fair assumption? MR. HEARL: Yes. MR. MAIN: Okay. Now, as I read the proposal that MSHA has issued, and there is some differences here which we'll get into about what this rule does or doesn't do, and we've got -- getting from some of you guys from the Agency itself. But as we read the rule, there is a significant change in terms of the dust, respirable dust levels, in the coal mines. As we read the rule, the standard basically says that the respirable dust levels in the -- MR. REYNOLDS: Joe, I just wanted to clarify where you're going here. And that the purpose of the hearing was to hear testimony. NIOSH's rule here was -- FROM THE FLOOR: Could you speak up? MR. REYNOLDS: I just wanted to clarify where we're going with this. NIOSH's rule in this public hearing is to hear testimony on the single sample measurement proposal. That's the role of -- MR. MAIN: This gets to part of that -- MR. REYNOLDS: Okay, but this -- I just want to clarify for everybody here that NIOSH has no rule making authority and the reason they're here is for the single sample measurement, the proposal which would determine that we could determine the level of respirable dust in a single shift. MR. MAIN: That he believes -- MR. REYNOLDS: And that they have no authority for the plan verification proposal. They're not involved in that rule. MR. MAIN: I do believe you've used NIOSH data as a foundation that you are concerning as part of this. The -- MR. REYNOLDS: NIOSH data as well as compliance data, okay? Which they do not have. MR. MAIN: And what we're trying to do is just get an understanding -- MR. NICHOLS: Well, how much more will you have on NIOSH, Joe? MR. MAIN: I know you guys don't want me asking questions of NIOSH and I think it's important to the public and to the miners that we just get -- get the truth, whatever it is, about how this rule has actually impacted and how that comports with some stated findings of the Agency which you guys feel is part of the rule making. And I plan to go on through the number of questions here that I think will help clear -- you know, clear some of the issues up. In that regard we feel that the proposal does -- this gets into what the whole intent of this single sample is and where all this stacks up. The proposal, as we read it, allows the dust levels in active work places to be increased up to 3.0 mg, 4.0 mg, 6.0 mg and even up to 8.0 mg. And MSHA has confirmed that that would be allowed under this rule. Whether they do it or not, you know, we understand there's a debate there with regard to the Agency's stated intentions. Now, I just have to raise a series of questions of here with regard to this rule making that you have submitted -- your Agency has submitted to MSHA referencing the 1.0 mg as the standard. Does the 4.0, 6.0, 8.0 mg of dust that would be allowed under this rule conform or conflict with that 1.0 mg proposal? MR. HEARL: I think with regards to the dust plan verification part of the rule that MSHA is proposing, NIOSH is in fact studying that and from that side of the table will be submitting our comments on how the implementation of rule relates and, you know -- with respect to our evaluation of it. And we'll be submitting our comments to the record on that later in writing. MR. MAIN: Well, I -- MR. REYNOLDS: I also wanted to interject here that MSHA has addressed the NIOSH document within the preamble on pages 10788 and 10789 and explained to the public how we have dealt with all of those recommendations within the rule, in detail. So you can refer to that for a response. MR. MAIN: Well, People, this is a very voluminous document and I know a lot of coal miners have had time to read it -- scanned it and I've scanned it and I have great difficulties as well. So I'm just trying to sort of like get some clarifications on some key issues here. MR. REYNOLDS: I just want to clarify that that would be the Agency's response as explained in the preamble at those pages. MR. MAIN: Well, in regard to the question that we're raising here though, and I'll clarify this, and this appears to bring out that NIOSH has recommended that the 2.0 mg standard be reduced to 1.0 and we have standards that goes to up to 8.0, that that's a clear conflict. And I understand that you want to more thoroughly respond to that. But, you know, just as a lay person here, you just have to draw that simple conclusion. 1 is 1, 4 is 4, 6 is 6 and 8 is 8. Now, on to the next question. MSHA announced that NIOSH was a party to the single sample rule. Did NIOSH participate in the decision, as part of that single sample rule, to increase the dust levels to 2.33 -- yes, to 2.33 before an operator could be cited? Which is part of the application in your sample rule. MR. REYNOLDS: What I can read to you directly -- MR. MAIN: Could I have the -- I mean NIOSH is the -- MR. REYNOLDS: Okay, I'm just reading what NIOSH has stated in the document. NIOSH does support efforts by MSHA and anyone else that will reduce miners' exposures to dust and also eliminate or at least reduced significantly the incidence of disease. And that is their official comment on -- MR. MAIN: That doesn't really answer the question. I want to -- MR. NICHOLS: Frank has answered your question. NIOSH stands by its criteria document. MR. MAIN: It's a very simple question and I would appreciate an answer from NIOSH who's part of the rule making, which was announced to us. Did NIOSH participate in the decision to increase the 2.0 mg standard to 2.33 before an operator can be cited, yes or no? MR. REYNOLDS: That's not a part of the single sample proposal, Joe. That's in the -- MR. NICHOLS: That's correct. MR. MAIN: So you're saying they were not part of that decision? MR. REYNOLDS: They are not part of the plan verification rule. MR. MAIN: Okay. MR. REYNOLDS: The plan -- the protection factor which you're referencing is in the plan verification proposal. MR. MAIN: I want to ask a real simple question and it would be helpful to clear this up if we could get a simple answer. My question is, did MSHA participate -- did NIOSH participate in a decision to allow the dust levels to go to 2.33 before an operator would be cited, yes or no? MR. NICHOLS: You can answer that question. MR. MAIN: Thank you. MR. HEARL: Our participation in the rule making that's going on today was limited to the determination that an average concentration during a shift can be accurately measured using a single sample. And that -- MR. MAIN: But did NIOSH participate in the decision to increase that to 2.33 -- MR. HEARL: Okay, no. MR. MAIN: Thank you very much. MR. REYNOLDS: And the answer is they would not have had the authority to get involved in that, Joe. It's not their rule. MR. MAIN: There's a reason I asked that. Because it clearly, again, conflicts with what the NIOSH criteria document recommends in terms of reducing exposure to miners. I'm just trying to get the answer clear, Fellows. That's why we're here. NIOSH approves the PAPRs that's used in mines as I understand. Would that be part of NIOSH's -- MR. HEARL: That's correct. MR. MAIN: And the Mine Act currently requires miners to be provided with respirators approved by NIOSH to protect them from the effective dust. Is that correct, Marvin? I'll just ask you that question. MR. HEARL: That's correct only when there is an overexposure determined. MR. MAIN: Okay. But for -- I'm just trying to establish that those respirators have to be approved that are used. If they aren't -- MR. HEARL: They do need to be NIOSH approved and made available to the miners at the times when overexposures are present. MR. MAIN: Okay. Now, if a different filter is used -- let me just get this clear. I think this has been stated by the panel before. I understand there's only one PAPR unit that has been approved for use by NIOSH, is that correct? MR. HEARL: No. As I understand it, we -- NIOSH approves a number of PAPRs but I believe there's only one PAPR that's approved that also has MSHA approval, which would also be required. MR. MAIN: Okay. So, in essence, there's only one PAPR that is approved for use in mines by both NIOSH and MSHA, is that correct? MR. HEARL: The proposed rule says that they have to meet both MSHA and NIOSH approval. MR. MAIN: I'm saying currently -- MR. HEARL: The current rule requires both NIOSH and -- requires that a NIOSH approved respiratory be made available. MR. MAIN: Okay. MR. HEARL: The proposed rule requires both the NIOSH and MSHA approved loose fitting respirator, which is only the one PAPR at this time. MR. MAIN: Okay. So the rule then would address that one PAPR as far as the one that is approved. MR. HEARL: That's correct. At this time there is only one unit that meets those criteria. MR. MAIN: Now, if -- in the approval of these PAPRs, if a different filter is used than what was approved or a different substance was used in the filter that was approved, or if the neck skirt was removed from the PAPR, which I understand is a part of that approval, and if the face shield is raised on that PAPR, does that maintain the approval status of that PAPR? MR. HEARL: Actually -- I'm going to say that, first up, we certify the PAPRs and approval and certification makes a difference. But we do certify the units. Any modification to the unit from what was originally certified voids the certification. But I don't think that the last item that you had of raising the shield would not void the certification of it. That wouldn't provide the protection that one would expect from using the PAPR if it's not being used properly. But as far as the certification of the unit, using a non-certified filter would void the certification of the unit. MR. MAIN: By the design of the units, all of those pieces are apparently all connected to have the PAPR perform as it was intended to, the face shield down, the neck skirt on and proper filter in, is that -- MR. HEARL: That's correct. MR. MAIN: Okay. MR. REYNOLDS: One thing I think we ought to interject just to clarify is what would be the protection -- the protection factor that NIOSH would have assigned to an approved PAPR? MR. HEARL: Well, it would be -- right now according to the NIOSH -- MR. MAIN: Is this a defense question here for the panel? MR. REYNOLDS: No, I think it's something that we need to just explain so people understand. What protection factor would the -- would NIOSH have assigned to the PAPR? MR. HEARL: For general industry use the respirator decision logic offers a protection factor of 25 for an approved factor. MR. REYNOLDS: And what is it that MSHA assigned, Bob? MR. THAXTON: The protection factor maximum is 4 from the Agency. MR. REYNOLDS: And were there reasons why MSHA chose 4 rather than 25? This is all described in the preamble on page 10802 and 10803. MR. MAIN: If you want me to come to it when you finish your questions, I'll do that. MR. REYNOLDS: I'll continue to -- MR. NICHOLS: Yeah, we're having a full discussion package. MR. REYNOLDS: It's really necessary that everybody in the hearing understand, you know, the question. MR. MAIN: Just don't throw me off here early. MR. THAXTON: The protection factors that the Agency established are based on the data that was available through the testing that showed that velocities along the longwall face where the PAPRs are being used, effects the protection factor that can be generated. Also the way the PAPRs are used in mining effects that protection factor. So the test data reflected only up to a maximum of 4. MR. MAIN: To follow up on my questions, with regard to the testing that has been done on these PAPRs, in real life use, and let's say the last three or four years, are you aware of any testing that's done to determine the use of those PAPRs in the factors that you folks lay out here. Whether or not they conform to those factors or not. MR. HEARL: I'm not aware of any right now, personally. MR. MAIN: I'm not aware of any either but I mean -- I didn't know if you folks had been -- MR. REYNOLDS: For that reason we specifically ask for comments in this area and ask the public to provide us any information they may be aware of. But we've asked for that information because the information we have is limited. MR. MAIN: Because over the last three or four years there's been a lot of information put on the record showing that these PAPRs are not used in their approved state. That the filters are a problem, the neck skirts come off of these because of conditions that miners work in. The face shields were black. And that's not new information. That's something that's been known for some time. As a matter of fact, it was a part of the rule making record in 2000. And I was just curious to see if either MSHA or NIOSH had done any investigations in this important information to determine what the real safety factor or whatever factor you want to call this. MR. THAXTON: I think you've asked this question at a previous hearing, Joe, in a different manner. But there has been no checking of the current use of PAPRs in the mining industry as to determine whether they're being used as approved. For the simple reason they're not being required as part of an approved respiratory protection program. As such, to my knowledge, no unit has been utilized in a manner that would meet the requirements in order to say that it is an approved respiratory protection program. That's why we're saying it's so important in this proposed rule that anybody that does elect to use them, just incorporate an improved respiratory protection program as a part of their plan, so that that way it becomes requirements for that mine. It does cover all the issues that you're bringing up. That the units have to be maintained with the neck skirts, that they have to have the proper filter in them, they have to be cleaned, maintained, disinfected if they're used by multiple people. They have to be utilized in certain areas. And if they fail to follow all those provisions, then there would be a violation of the plan. MR. REYNOLDS: And in the preamble at 10863 and 10864 and 10865, we had an example of the stringent requirements we would expect in a protection program. And most of those requirements would address the -- from what I've heard, the information about the problems with the PAPRs. A lot of those are maintenance, proper use, keeping them clean, the sanitary problems that they had, being able to see. A lot of those would be addressed within the PAPR protection program that would be required of any operator that was given -- was allowed to use PAPRs. MR. MAIN: Let me go back to my question. I have a thought track I've been trying to stay on here. Bob, you said that these are not required to be that -- I believe under the current standard. And I'm going to step back. Mine operators know that they're put in high or low levels of dust if they get a citation for exceeding the dust standard. Aren't they required to provide the miners approved respirators? MR. THAXTON: The current requirements under the current regulations do require that an approved respirator be made available. Not that they have to wear it and it's not the point it has to be used. In most cases where we have PAPRs being used that are considered in an unapproved state, there are approved respirators that are available to miners to utilize. So that, therefore, the operator meets the requirements of the regs at that point. So there is no requirement that we have to go out and see that a particular respirator is in an approved condition. The law only requires that approved respirators be made available to miners at any time there is an overexposure. MR. MAIN: So at those mines where they're providing these respirators, as I understand you said about 50% of the longwalls at some point in time, that they're currently using these. And if those respirators that miners have that they're using to protect themselves from this dust currently aren't meeting those standards, you're saying that's not a problem under the law, current law? MR. THAXTON: It's not a violation under the current regulations, that's correct. MR. MAIN: So the operator -- MR. THAXTON: It would be under the current -- under the proposed rules if an operator has a PAPR protection program. Situations as you've discussed with skirts being torn off, face shields not working right, not having the proper filter, those would be violations of the approved plan if -- under the 2003 proposal if an operator has a PAPR use program as part of his -- MR. MAIN: I'm going to go back to my question here because I'm a little bit confused. Mine operator A provides miners with a PAPR currently. That operator goes in and out of dust levels that may exceed the standard. A situation where you would use a citation. That's the so called respirator protection that the miners have given to -- the operators have given to the miners to wear. In situations where they have been claimed to be faulty by industry, by labor, you're saying that that is -- even though they don't -- MR. REYNOLDS: Joe, I think we're trying to -- I mean our purpose here was to take testimony on the 2003 proposal and I -- MR. MAIN: This has to do with the 2003 proposal. MR. REYNOLDS: You're talking about the existing program. MR. MAIN: Yeah, it's an existing program that has a standard that has to be met now. That our concern is that they're faulty, people know it, they don't -- MR. REYNOLDS: But you're talking about the existing program. We are here to talk about the -- MR. MAIN: The same kind of PAPR with beefed up, mind you, standards. But falling into the same kind of problems we have. The simple one is when you put all that gear on, the -- MR. REYNOLDS: Well, the major difference in the 2003 proposal is that there would be incorporated in their ventilation plan. All of that would be part of the plan and they would be required to follow these requirements. MR. MAIN: That's not being followed, that's our point. But to clear up a point that you've raised, one of the complaints that miners have is that because of the design of these, they fog up. That's one of the main points that I've heard. And that is a creature of the unit that causes of the some problems that requires -- you know, at times, the face shield, the neck skirts to come off. And that's a practical problem with these units that has been in existence for some time and would be believed to be continued in regardless of what's in the plans for the future. Let me just shift gears here for a second on -- those are minor issues. Because we do have some real concerns about these PAPRs and the fact that MSHA has condoned the use of these faulty PAPRs over the years that we've complained about. And we're still setting with the same problems from three years ago in permitting mine operators to provide those faulty respirators to the miners that isn't working. And we're getting ready to say that we can now take those respirators, the same respirator that's used, and use it in this proposed rule. MR. REYNOLDS: Joe, might I point out that we had response to virtually identical comments on page 10801 in the third column. It's almost word for word the things that you're saying now. Where we've responded to those comments. MR. MAIN: For the 2000? MR. REYNOLDS: It's in response to problems with the shroud and -- MR. MAIN: But it is an ongoing problem the Agency had an obligation to fix and they haven't. Let me go on to another question on the PAPRs because as I -- and I'm going to ask a few questions on this sheet. And I apologize, I just got them this morning. Now, let's take these miners that you said was wearing these PAPRs currently on these longwalls. Under this rule, with the current use of those PAPRs under the 2.0 mg standard, will any of those miners face the risk of having, through the use of that PAPR, the dust levels increased through the proposed rule? MR. REYNOLDS: We've been through this before. I think under the proposed rule -- MR. MAIN: Well, your question here is a little confusing and I'm just trying to -- is the dust and the air that miners breathe who is currently wearing PAPRs, won't they have an increase in the respirable dust levels under this rule? Yes or no? MR. REYNOLDS: What is your question? Are you talking about under the proposed rule or are you talking about -- MR. MAIN: Miners today working on -- let's say longwall A, we have miners today working with a PAPR on -- MR. NICHOLS: Which question are you working off of? MR. MAIN: Those would be off of question -- well, they're not numbered. It's on the back side. By allowing the use of PAPRs with protection factor of 4 -- oh, it's probably the one right before. There's about two or three PAPR questions I had on this. My question is, this is sort of connected with these to the extent that -- it actually gets into the following answering to the next question. It's real simple. I don't mind today working with a PAPR on. The maximum exposure is 2.0 mg. Does this rule do anything to increase the dust exposure on this longwall I'm working on today with this same PAPR on, to increase the dust that's going to be coming into my environment, beyond the 2.0 mg? Can it go up to 2, 3, 4, 5, 6, 7 where I'm currently working with a PAPR on today? MR. REYNOLDS: So just to clarify, you're on page 2 of the question and answers, with the questions on the left hand side, is that where you're -- MR. MAIN: Yeah, it's one of the questions. Because I went through it and was confused about what all this does or doesn't do. I just believe that what we have here is a situation where miners are using these PAPRs today, is that the dust levels in those areas can't be increase above the 2.0 mg level. And just a simple question, will the rule allow the dust levels to be increased in those locations or could it be increased in those locations where miners are currently wearing the PAPRs today? MR. NICHOLS: At our previous four hearings we've been through the enforcement policy of MSHA on numerous occasions. And it goes kind of like this. The 2.0 mg standard remains in place. MR. MAIN: By your assertions, I understand that. MR. NICHOLS: The 2.0 mg standard remains in place. In reality, 44% of the underground mines today operated on a reduced standard because of the quartz content. Now what our enforcement people do now and they'll do with this new rule is insist on all engineering controls being applied in every area in an underground mine. Now, once that's done, if there's a situation that's been determined where the operator cannot engineer the problem out to below the 2.0 mg standard or the reduced standard because of quartz, a determination will be made as to whether they can use supplemental controls. That decision will be made by the Agency's experts and a final decision will be made by the Administrator for Coal Mine Safety and Health, who is a career employee. That is currently Ray McKinney. If the Agency considers allowing supplemental controls, it has made the determination that the 2.0 mg standard or the reduced standard cannot be handled by engineering controls. That does not mean that our enforcement people are not going to require these areas to be maintained to the lowest level possible. MR. MAIN: I'll ask my question again. And I think it's an important one for miners who are now working in the coal mines so they understand what this rule does. I'm working on a longwall. Right now I've got a PAPR on, the same one you're talking about. And the standard is currently 2.0 mg. As a miner working, do I expect any change in this rule that will allow the operator to increase that same dust level of 2.0 mg up to 2 or up to 3, 4, 6 or 8, yes or no? MR. NICHOLS: We're not going to talk about extreme hypotheticals. I have laid out what this package is intended to do. Now if it's not clear, we need to try to clarify that. MR. MAIN: That's what I'm trying to do. There's miners back here that's going to be working on longwalls. There's miners setting back there that have PAPRs on now and they've been wearing them for the full shift, Marvin. The only question is a real simple minded one. Under this rule can those -- can an operator get approval to raise that dust level up in the same environment that PAPR is in from 2.0 mg to 4, 6 or 8 mg? Is that possible for that to happen under this rule, yes or no? MR. NICHOLS: If the miner cannot -- if the mine operator cannot engineer out the problem and the final call is the Agency's, it's not the operator's it's the Agency's. Then the operator can request to use supplemental controls. The Agency will take that into consideration. MR. MAIN: Well, let me ask a question. It's on the record that yes they can do that, they can do it up to 8 mg, and according to what we were told by the panel on Tuesday, that could actually rise to 9.33 before a mine operator was cited. Which, in our opinion, diminishes the protections afforded miners and conflicts directly with the recommendations that NIOSH made and the others have made about reducing the overall dust standards in the nations' mines. Now, along this same path, there's a question in this -- and it's on this back sheet. It says by allowing the use of PAPRs with a protection factor (PF) of up to 4, is the Agency allowing miners to be exposed to dust levels up to 8.0 mg? I'm going to just change that question, which I don't want to ask it directly in conformity with the Mine Act, which I think is what we need to be doing under the regulations. And I'm going to ask the question this way. Because you've got to ask the right question to get the right answer here I guess. By allowing the use of PAPRs with a protection factor (PF) of up to 4, could the dust in the mine environment, in active workings, increase above the mandated 2.0 mg set by Congress up to 8.0 mg? MR. NICHOLS: The 2.0 mg standard is in place. And operators will have to resolve all engineering controls. Now, if it cannot engineer the problem -- the concentration to below 2.0, then I think we've made it clear this proposal allows for them to ask for supplemental controls. Which means that the dust will be above 2.0. MR. MAIN: Could it be up to 8.0? MR. NICHOLS: You're confusing a protection factor with what -- MR. MAIN: No, no, no, no. Here's what I'm trying to do, Marvin. I apologize for asking the question wrong. The Mine Act -- and just let me read it because I think it's probably better to do that. I'm just trying to figure out how this conforms or don't conform with the Mine Act. Because that question was a little confusing the way it was drafted and I think that if you look at it in direct terms of the Mine Act, it's not asked right and I'm going to try to ask it right. Because here's what the Mine Act says. It's under Section 202(b)(2). Effective three years after the effective date of the enactment of this act, each operator shall continuously maintain the average concentration of respirable dust in the mining atmosphere during each shift to which each miner in the active workings that such miner is exposed, to at or below 2.0 mg of respirable dust per cubic meter. Now, as I read that question, it didn't direct itself to the actual requirements of the Mine Act, okay? Now what I'm asking you is, and I'll do it a different way here. Would this basically say at the end, effective three years after the effective date of this Mine Act each operator should continuously maintain the average dust concentration of respirable dust in the mine atmosphere during each shift in which each miner in the active working will subsequently be exposed to up to 8.0 mg of respirable dust per cubic meter or greater. Isn't that what we're doing here? Because what this standard says, in the mine atmosphere in active workings. And the concern I have with the way that this is drafted, it does not address what the current direction of Congress was and where that dust has to be maintained at, at what locations and what number. MR. NICHOLS: I've done the best I can do. I'll let one of the technical experts here have a go at it. MR. THAXTON: Part of what you read, Joe, you said -- you know, it's the dust to which each miner is exposed. MR. MAIN: I read straight from the Mine Act. MR. THAXTON: But part of what you read was to which each miner is exposed, the dust which each miner is exposed. If you read the proposed rule, we calculate the concentrations through equivalent -- MR. MAIN: Well, but that's -- MR. THAXTON: -- concentrations. MR. MAIN: So -- MR. NICHOLS: I'm going to allow some back and forth here but -- MR. MAIN: Okay. That is not answering my question. Go ahead though, answer the question. I'll set back here and relax. MR. NICHOLS: We won't interrupt you. You don't interrupt us. MR. MAIN: Go right ahead. MR. THAXTON: The determination of the equivalent concentration that the miner is actually being exposed to is what we're calculating under the 2003 proposal, is that we're taking into consideration as much as what we can get in a reduction with the engineering controls that are available and then we're applying the supplemental controls. And it doesn't necessarily have to be a PAPR, it can be administrative controls, that they can float people in and out. It's still what the miner is actually being exposed to in his work environment. And what we're saying is that if you've gone to as much as what you have -- I mean right now mine operators are producing and we have situations where we have high dust concentrations on an individual shift, as we've shown with the samples that we've seen and you've seen. We know that there are situations out there with today's actions, with engineering controls being relied on, and people saying right now that the engineering controls are the only thing that's being used and you're saying that you're meeting the 2.0 mg standard. We've shown what the sample -- the results that was showed on the example this morning. Two out of the five shifts, people were overexposed. But because it's an average, it looks okay. What we're saying is that we need to look at each of those individual shifts, protect people on each of those shifts, push the engineering control envelope as far as we can and get it as low as possible today and then allow the use of either administrative controls or PAPRs to protect people in those situations when they're being exposed to those levels. And the same token, every six months go back and look and if there's any changes in the mining system or additional controls that have been developed through experimentation or work with NIOSH, that those controls then will be pushed to push those concentrations down even further. But we should be protecting people and evaluating the concentrations that miners are actually breathing and being exposed to so that we can get them protected from being exposed to concentrations that are likely to cause lung disease. MR. MAIN: I'll ask you the question and you can either say I'm wrong or right. But you've already answered this before, but it's a different style than this question and answer thing that came out. But as we read the clear language of the Section 202(b)(2), it is very clear that you cannot raise the dust levels in the mine environment active workings above 2.0 and you're going to raise it under this rule in circumstances up to 8.0 mg, okay? And we believe that conflicts with that. It's a little confusing the way that the rule was -- or this question and answer was laid out here. Because I don't think it really gives a full measure of what's happening. Now, just on this whole issue, and just try to understand where we're all at here because I think there is a lot of confusion. Under the current rule and the law, can they jack that dust level up to this factor of 4 and use respirators in the circumstances you're talking about? Under the current rule. MR. THAXTON: Under the current rule they can have a high concentration of 8.0 mg on one shift and the samples on the other four shifts be .5. That would still be on an average of 2.0 mg and they would be in compliance. There would be no requirement for any additional controls whatsoever. MR. MAIN: Then I will ask the question in this way. Can they legally raise the dust exposure levels beyond 2.0 mg and have PAPRs on miners as an approved means of raising those dust levels up under the current law? MR. THAXTON: Under the current regulations if the average concentration of multiple samples collected on the five shifts was greater than 2.0 mg, we would not accept respirators as a means of compliance. MR. MAIN: That's not -- MR. THAXTON: It would not be accepted as a means of compliance. MR. MAIN: So we are changing the law here? MR. THAXTON: That's why we have a proposed rule, yes. We are changing regulations -- MR. MAIN: And we're changing the law in a way that will allow the dust levels in a mine environment, the active workings, to increase above them 2.0 mg, yes or no? MR. NICHOLS: Only if they can't be -- if the problem cannot be engineered away. At some point here we need to move on. MR. MAIN: Well, again, just yes or no. So I mean -- I know it's going to take a little time to ask some questions, Marvin, and I apologize for maybe the confusion in some of the questions, but it's pretty straightforward. The law says you can't use respirators in place of engineering controls and essentially you can't allow above 2.0 mg in the mine environment, the active workings, and the rule quite frankly is contrary to both of those standards. And, you know, that's the point that we're trying to get cleared up here. With regard to the changes that's coming about or would come about with this rule, which would allow the use of respirators where there is a claim the operator has exhausted the engineering controls and MSHA would approve that, and in looking at the 1969 Mine Act, because I've been spending a lot of time reading that and how Congress crafted that, what's puzzling is that in 1969 we had much dustier mines to deal with. We had less controls. We didn't have shield spray, we didn't have the different controls we have today. What is so different today that would allow the replacement of engineering controls that are claimed to be exhausted with respirators and what Congress looked at in 1969? I think that's something we're all setting here puzzled about. And Congress clearly said in 1969 in those dustiest mines with less controls, you're not going to do what you're saying that you're going to do with the proposed rules. And that's -- you know, and I take it you could understand, you know, how people's having a hard time trying to figure this one out. It just does not make sense. It violates the Mine Act. MR. NIEWIADOMSKI: I'd like to respond to you, Joe. In 1970, and apparently this is being ignored because we're talking about a very important variable here which has changed significantly since 1970. I'll take longwalls because that's -- when you talked about PAPRs, all the PAPRs -- the last survey we did, the only PAPRs that are being used is on longwalls. In 1970, true, there were very few longwalls. The average production was 520 tons per shift. And this is in the record. That's 520 tons. In 2002, that's 5,500 tons per shift. That's that a significant, significant increase. And one of the things we've said is, and this is something that I was going to pose a question to Joe, since he's asking the panel and the panel has an opportunity to ask Joe a question, is that assuming that we have a situation where, as I just said, we've had this significant increase in production since 1970. Unfortunately, as you well all know, is that control technology has not kept up with that. And there's a detailed explanation in the preamble that we know of no new developments in engineering controls that have been implemented in the past ten years. And so we've got a situation here where an operator is implementing all available controls and which we in fact -- our position is to try to control the mining environment. But when you get to a situation where you cannot continuously control the environment at the applicable standard, as is the current situation out there, because you are well aware that we have thousands of shifts where we've got overexposures. That's during sampling periods we're talking about. The best conditions. So now we're in the situation where -- whether it's a hypothetical situation or real case situation where you know the operator is using everything and the MSHA experts and NIOSH experts conclude that, yes, there's absolutely nothing else that can be implemented. Then the question is, what do we do? We have to protect individual miners that have to work in these certain locations. That's our charter. We're trying to protect -- initially, we want to control the entire environment. That was the intent. That's the ideal situation. Then it doesn't matter where a miner works, he's being protected. But if we don't have that assurance, we don't have the technology to provide that, then the question is what do we do? Do we require that production be totally reduced? Do we in fact shut down the section, whatever? The question is, when we have a situation like that, what's the alternative. MR. MAIN: I think the alternative is, and I think you answered a question that sort of lines up where we think this rule is going, to allow increased production and take the cap off the 2.0 mg and allow mine operators to implement mining systems that doesn't have the dust controls with them. It gives them the break that, the dust level is already up, so they can increase production. I disagree with you 100% your whole theory, George. I can tell you this, that if it wasn't for the stand we had to make, we wouldn't have sprays on longwalls now, we wouldn't have a lot of things. But the industry understands this, we have a standard that has 24/7 monitoring and we have the real evidence about what's best on this to fix this for these miners. Change the rule, put some more pressure on them. If you take the pressure off by developing engineering controls, they will develop them. Since you raised the question, I just want to have the opportunity to answer here and just tell you that, you know, you've laid out a case. You're saying okay, let's take the hamper off of these engineering controls for future mining operations to increase productivity and jack up the dust levels. Now there's a whole ton of ways to fix this problem. Just because the mine operator wants to produce 30,000 tons a shift and jack the dust up, should they be allowed to do that or should they be required to -- whatever system we're going to build to keep that dust level in conjunction with the 2.0 mg standard set by Congress. That's the whole debate here. You know, our whole view is if you're going to build it for the mining of coal and you're going to build to keep in compliance with this standard, that the miners -- as NIOSH pointed out, to lower that dust level and as the miners have pointed out, we need continuous monitoring to double check that system every day. I'm fearful the way this rule is drafted, it's already taken operators off the hook with regard to having sufficient ventilation in the mine. You have this ventilation standard that triggers the use of these PAPRs at the highest levels. If a mine operator doesn't exceed what's permitted, they would be eligible for the upper levels. And as one of the commenters pointed out the other day and a thing that concerns us, for Peabody may develop the air shaft, the entries, and the sub-veins to supply the air. Operator decided not to do that and so when you get up on the section you haven't got enough air and guess what, you've already condoned it and set us all to -- you know, to raise the standard. And MSHA in the past has been reluctant to require mine operators to put sufficient air in these mines. And what your proposal is about ready to do is set a standard here that's going to encourage operators not to put in enough air, that would enable them to go to higher dust standards. I mean that's, you know, pretty clear to us. As far as the speed of the shearer -- you know, let's talk about this feasibility. The speed of that shearer has a lot to do with the dust concentrations and that can be controlled. The depth of the cut, the speed of the pan line. Putting your belt air on -- you know, on sections which are proposed to do with high velocities. Where are we going with this? If you don't use those as -- you know, if an operator wants to mine coal, as Congress said in '69, get with the program here. We are setting up a stage to really liberalize the dust levels in a coal mine to increase productivity and we are not aiming at what NIOSH aimed at, lowering the dust levels in these coal mines to get the miners out of the dust. And we think it's that simple. And we think you've laid out a case to support that concern. With regard to -- you know, I'm probably going to save a number of these questions. I think this question, the last thing, is somewhat favoring -- embracing of a rule as opposed to some real truisms here that people need to understand about what this rule is about. And we do take exception to the way that this is crafted. That it doesn't really ask the whole questions that we would ask. But, you know, I'll part with this last question. Why is it that you're proposing to remove the miner operator responsibility to do dust sampling six times a year? And why is MSHA not bidding to take as many samples as the operators are taking now? It says, the proposal still calls for mine operators to take dust samples only the purpose is different, to verify that their dust control plans will control the dust as required. Then it also says MSHA also intends to take samples for compliance purposes at least every two months. Without the cumbersome system of averaging, we will not need as many samples and will be able to determine compliance more quickly and efficiently. Single sample determines make it possible for MSHA inspectors to conduct more spot check inspections. What's not stated in here is a couple things and I just want to be clear to make sure I'm right on this. The current proposal does have specific requirements, regulatory requirements that compliance has to be met. For sections, the thought here is, where is it in the new rule that I can find the specifics of the requirements for those dust standards? Sections or outby areas. Where specifically in the rule can I find that? MR. THAXTON: For the sampling? MR. MAIN: For the compliance of sections and outby areas? MR. THAXTON: As I stated earlier, Joe, during the summary, the requirements for sampling are in MSHA's inspection procedures which are not part of the rule. They're on the web site now as a draft for people to look at in conjunction with the rule. MR. MAIN: So those standards are no longer in the regulations? MR. THAXTON: There are no standards in the regs because there is no operator requirement for sampling at that point. The Agency does not write standards -- the compliance sampling is going to be taken -- that function will be taken by the Agency. MR. REYNOLDS: We mentioned this before, but the Agency decided that the enforcement procedures and policies should be in their inspection handbook. And it's in Chapter 1 of the inspection handbook, which is available along with the proposed rule for people to look at. MR. MAIN: Which -- MR. REYNOLDS: And I think we've taken your -- and I think we understood it was your position that you think this should be within the CFR text. MR. MAIN: We say that. I think we told the panel very clearly that the last time in 2000, which didn't get too much of an ear. Now, this policy which is subject to change, is that correct? The policy on dust sampling subject to change without regulatory action. MR. REYNOLDS: Again, it's in the inspection handbook which the Agency could change, yes. MR. MAIN: Yes, okay. And in that policy, as I understand, which is no guarantee, what MSHA plans to do as far as sampling is on some sections as little as three samples, three samples a year, is that correct? MR. THAXTON: As we showed in the presentation this morning, Joe, in those scenarios, is that certain MMUs, if they qualify with low dust levels, then they can be skipped every other bimonthly period. It doesn't mean that you only get three a year. Each bimonthly period stands on its own. At this point we've also only projected that about 10% of the current MMUs would qualify under that program, which is only about 80 MMUs throughout the country at this time. Eighty out of 800. MR. MAIN: But there is mining units that would only have three -- by policy, three compliance samples a year, is that correct? MR. THAXTON: Only if each of the samples that we do collect meets the critical values that we've stated. So each -- if we take one bimonthly period sample and it's low enough, then, yes, we would skip the next. But if we come back the next one and it's high, they're back to every bimonthly period. So it's not necessarily if somebody skips one is not only going to get three. They may skip one and get four. They may skip two, they may skip three. Only the very best ones are going to get to skip three in a year. MR. MAIN: The point I'm trying to make is, just so some miners understand this, some miners, probably miners set in this room, may wind up with only three compliance samples on their section a year. MR. THAXTON: If they do, it will be on sections that we have shown through sampling as having very good controls in place that result in compliance at 95% confidence. MR. MAIN: Okay. With regard to outby sampling, as I understand what MSHA claims they're going to do, they would do one sample a year in outby areas, is that correct? MR. THAXTON: The proposed inspection procedures do call for us to sample outby areas once a year. MR. MAIN: And with regard to the NIOSH criteria document by the Federal Advisory Committee, and NIOSH could dispute this if they want to, but it seems to me that the plan actions of sampling fall far, far short of that recommended or anticipated by either of those two recommendations. But it appears what we're going to do here is determine a miner's exposure to unhealthy coal dust in these outby areas and one sample is taken a year. Now, with regard to the questions here on how to insure samples -- MR. NICHOLS: Joe, we have Q's and we have A's. So I think these stand on their own. MR. MAIN: But the questions -- MR. NICHOLS: We've got -- okay, but we've spent a lot of time at the last four hearings and you're going to be at the next two hearings. We've got 25 miners signed up -- MR. MAIN: I understand. MR. NICHOLS: -- that I'd like to hear from. And as soon as we can here, I'd like to kind of move on. MR. MAIN: I know. And I think what miners have told us recently -- they really what to understand what this rule does and, you know, I think there's some real concern here whether these questions ask -- but I'll hold those off and ask them later. I want to do two quick things here. One is, at the first hearing there was discussions about the dust fraud in the industry and claims that the -- that those were rhetoric. And I just want to clear the air that those are not rhetoric. And just provide for the record -- MR. NICHOLS: I don't remember the rhetoric. MR. MAIN: It was one of the witnesses from the industry that testified that -- I believe he used that word. At least that's what my memory is. MR. NICHOLS: Yeah, but I hope I've made it clear that the Agency takes full credit for prosecuting those. MR. MAIN: No, I didn't say that MSHA said it was rhetoric. I want to make that clear. It was one of the witnesses. And we do appreciate that action, Marvin. The action didn't have to be taken and we view MSHA's policy to reduce dust sampling in coal mines, that we've said things about that, but opened up the door for these kind of activities to take place. In any event, I want to put in the record a list of criminal cases that were prosecuted for fraudulent dust sampling practices and these came from your own Agency. I received these some time back, in the summer of '99. It's not even a total inclusive list. And I did say in my testimony that there was about 160. After refining this list, actually there appears to be about 200 -- I think 199 cases in total of dust fraud. One was in Kentucky here by the way. And I want to put that in the record. There is a ton of companies, a ton of individuals here that have been prosecuted for conducting fraudulent dust sampling. And there was another case in particular which was the Triangle case, which is -- which was prosecuted by Glibner, that involves a sampling company and a number of mine operators. And what is concerning about this, when you look at the 200 that I mentioned doesn't even get to the depths of the problem -- MR. REYNOLDS: Joe, could I clarify that you're putting this in the record to show your support of MSHA doing all the compliance sampling under the new proposal? MR. MAIN: I'm putting this in the record for a number of reasons. Thank you for asking the question. MR. REYNOLDS: I mean is that the purpose of it? MR. MAIN: The purpose of it is to establish a fact that we have had a major problem in this industry with fraudulent dust sampling. Where operators have tried to hide the dust that miners were exposed to -- MR. REYNOLDS: Under the 2003 proposal MSHA would be doing all the compliance sampling. MR. MAIN: The limited compliance sampling, okay. Now this gets to a bigger point here. The compliance sample proposed by MSHA doesn't do the trick and I want to explain here. But there was 33 companies -- and I won't take the time now, but 33 companies was identified by this one case. It's not part of the 200. But this thing is widespread, far beyond what these numbers show. That there is people in companies that have been prosecuted for violating that law and exposing miners to dust conditions. And the theory is, or where the regulations fall short is that -- while the cat's away, the mice will play. And if there isn't constant surveillance of that dust in those mines, verify any plan that you want, it doesn't make any difference when MSHA's not there. If you look at the thrust of what these cases tell you, the dust control is not in place. And in many of these mines it was miners that had no miners representative to speak out. MR. REYNOLDS: I have a question. Is the logical that during sampling the operators do something different, is that what you're trying to tell us? MR. MAIN: Well, let me put it this way, I think there's been a ton of miners come here that recognize that and hopefully you've heard -- MR. REYNOLDS: We've never gone through this process but let's talk about the intent of the rule. The intent of the rule was to require the operators to do all those things that everybody says they do during sampling, all the time. I mean I think we've never gone down this street, but the purpose of the rule is to impose an obligation on the operator to do everything that they do when the sampling is going one. Which means put all the controls in place all the time on all shifts. And to beef up the requirements for the ventilation plan so that they have to do that on every shift. We've never talked about that. The sampling -- I mean what we're hearing -- what we hear is that during sampling the operators take -- they do things that they don't ordinarily do. And the purpose of the plan verification proposal is to make them do that on every shift. To put all those requirements in the ventilation plan and they have -- instead of sampling, to go in and make sure that the controls are there and that they're in place on every shift. MR. MAIN: I think the point -- we're talking about two different issues here and let me explain what my issue is and what these court cases, criminal cases, has taught us. Is that when the samplers are gone, verify anything that you want, those controls are not in place. Line curtain is not put up, water pressure not checked -- MR. REYNOLDS: What I'm saying is, under the plan verification rule there would be -- the operator would have to have those up all the time. That would be the focus of MSHA's enforcement, making sure that controls are there. MR. MAIN: But you're missing my point here. I'm trying to explain to you, if you give me just a second, that the plan verification doesn't work in these schemes. Verify the best plan that you want. When you walk away from there the plans, as verified, are not being followed, okay? And what's happened is that miners are exposed to dust levels and there needs to be a better way to deal with that. The MSHA proposal on plan verification does not fix that problem. And what does fix the problem, there's only one or two things that we saw is have an MSHA inspector there fulltime where you have these widespread kind of problems to identify, or have a continuous monitor there to monitor -- build it as tamper proof as you can to prevent those practices. Because at the end of the day, we believe that that group of miners is the most harmed here. And that's one of the arguments that's been raised for years about getting the continuous dust monitors in the mines. Plan verification don't fix that problem. But I'll introduce in the record the criminal cases and the cases from Triangle Research, which had a lot of companies involved as well. One final thing and then I'll get off of here. Is I just want to read a section out of the law. Now this is the legislative history on the Mine Act dealing with respirators, which Congress soundly rejected as being used as an alternative to engineering controls. And this was what the original language, which states that basically this was a committee report with regard to that. This is on page -- I'll give you my book but this -- MR. REYNOLDS: Okay, this would be in regard to substituting respirators for engineering controls? MR. MAIN: That's primarily what it says -- MR. REYNOLDS: Okay, and under the proposal we're talking about supplementing and exhausting all feasible engineering controls. MR. MAIN: A play of words, substitute or exchange. In any event, Congress wouldn't let -- would not allow to be done what you're trying to do in this rule. But I'm going to read this. The use of respirators. The committee expressly prohibits as a general policy the use of protection, personal protective devices, including respirators, as a substitute for environmental control measures. Both the Public Health Service and the Bureau of Mines consider such a device to be neither desirable or practical for rigorous physical operations involved in coal mining. Admittedly, certain types of respirators such as those built with built-in air supplies were attached to a source -- a filter -- fresh air commonly called supplied air respirators can provide virtually 100% protection. Use of this equipment has been for emergency situation for persons exposed to -- which have a rapid effect on life or health after short periods. And for non-emergency situations which control measures or other measures -- means of minimizing the exposure are not practical, the mechanical -- respirable filter respirator, a more compact device, which might be used in a coal mine situation, present special problems. The medical testimony raised serious doubts as to the abilities of the filter to trap the particulates and respirable dust which cause pneumoconiosis. Secondly, the Department of Interior reported the use of such devices significantly reduced the ability of miners afflicted with pneumoconiosis to breathe. The ability of air to pass through the filter decreases with the increase of contaminates. There is a resulting possibility that the worker will remove the filter and not replace it, thereby negating the protection he's been provided. In the case of supplied air respirators, the possibility of carbon monoxide going into the supply line also cannot be -- the record demonstrates that there are extreme difficulties in obtaining cooperation from workers asking about personal protective equipment. It should also be noted that with regard to respirators and similar devices, a comprehensive maintenance problem is necessary to keep them effective. Unlike the miners' health and safety goggles, respiratory protection equipment may be defective, although there's no obvious external indication. Respiratory equipment requires careful fitting and there must be a continuous technical effect to clean, inspection and maintenance. Accordingly, it is the view of the committee that this type of equipment cannot be used as a substitute for environmental control measures but rather should be used only in those specialized occasions -- or capable situations specifically authorized in the bill. And I think it's pretty well straightforward on that. And when you say that, gee, we're going to let them get out of putting engineering and administrative controls on respirators, call it anything you want. It does what Congress prohibited under the Mine Act. Thank you very much. MR. NICHOLS: All right, thank you, Joe. Let's take a ten minute break and then we'll pick up with Linda Chapman. (Off the record.) MR. NICHOLS: Okay, our next presenter will be Linda Chapman. Hey, back in the back there, could you close that door and if you need to talk, how about stepping outside. Okay, Linda, go ahead. MS. CHAPMAN: Thank you. My name is Linda Chapman, C-H-A-P-M-A-N. My husband's name was Carson Chapman, better known as Bear. I was at the meeting in Charleston a week ago and addressed the panel. They was gracious enough to be patient with me while I talked to you and I thank you for that. But since we met here and there a week ago, there's 32 new widows. That's how devastating this disease is. Every six hours we lose a new miner and there's a new widow. I've been hearing a lot about this continuous monitor that the miners are really excited about and what they think that it will do for them. I was told that what is maybe really the issue is the cost of these monitors. And that this monitor could run as high as $7,000 a unit, per miner. Let's look at the cost of this disease for just a minute, from my perspective, from my level. Now, the last ten years of this disease that my husband endured, believe it or not the cost -- the medical cost went over $1 million. Now, a lot of us would think now that's just ridiculous, there's no way. But it does. I can give you another example. A miner by the name of Mike Self died at the age of 51 years old. A lung transplant that failed. What did that lung transplant cost? Mike got in a helicopter going back to Pittsburgh because he was in trouble. His lungs was filling. Even the new lung failed. What was the cost? If each miner's disease has a medical cost of $1 million, that would buy 143 units. That would buy 143 units a $7,000 a pop. If we lost 32 miners since last week when we met in Charleston, that would purchase -- if their cost went to an average of $1 million in medical cost for each miner that died, that would buy over 4500 units. And we could measure the dust. We would know whether they were safe in the air qualities that they were breathing. If we only check one time, one sample, to cut out all this averaging, I don't think we're going to save miners' lives doing that. You know, I heard that if they would save 42 miners lives, and I think, Bob, you said that's not much. I think that's a lot, to save 42 miners lives. So 42 other women don't have to walk the walk I walk every day. I just told you a little bit about the medical cost. Once this miner contracts this disease and he's been diagnosed, one of the first things he does, he files a claim. And there a new battle begins. A new cost factor is figured in. Administrative law judges, law firms, doctors being hired to say the miner doesn't even have the disease. The bounty on a miner right now, I call it a bounty because I've been through this process for ten years. When that company sends that miner to one of his hired doctors, it's $500 a pop. And he's paid to tell that coal company that miner doesn't have this disease. And this is a practice that goes on every day. Every day. On March the 6th, '96, the company sent my husband to their doctor. And I took a day off from work and took him. We got there and the doctor says, you know, I think your husband is in congestive heart failure, I won't examine him today. And I said, what? He said I won't examine your husband today. As a matter of fact, I think he needs to see his heart doctor. And Carson's heart doctor happened to be in the same medical building, so we just went straight upstairs and did that. That doctor called this doctor back and said, listen, he's in some congestion but you need to go ahead and do your test. He'll be okay, you can do your test. He refused. He says I won't do the test. I don't think I'll get the results that I need to get. And then later when we went to court before an administrative law judge, there was a 72 page report on where he examined my husband that day. So then I had to get busy and prove that he didn't even examine my husband, which I was able to do that. Had this doctor disqualified. But he got paid to examine my husband for an examination that never even took place. That's what we face every day out there. Eight to ten year battle is what the average coal miner will fight the system to try to get benefits once he's been diagnosed with this disease. What's the cost factor in that? And after an eight to ten year battle, 7% are awarded their money. Do you know what usually happens before that 7% are awarded? He dies. And then by the law that Reagan passed in '81, the widow starts all over, proving again that her husband had the disease. They won't go off of his proof. She has to go back to court. There's the cost. And her battle, if she can live long enough, is eight to ten years. She's not successful. The miner's not successful in court. Because the Labor Department says we can't hire lawyers. If you can't hire a lawyer, he's not going to represent you. I went before an administrative law judge, asked my husband six months before he died, where's your representation, Mr. Chapman? He says, we can't get representation. He says I find that hard to believe. What world is he living in? He's an administrative law judge, he sets there every day looking at miners that don't have representation. Do they think we're in it just for the fun of it? What's the cost there? I fight a law firm, 243 strong. That's how many lawyers is in the law firm that the coal company that fights me every day has on their side. And I go to court without representation. There's only 16 lawyers taking federal black lung cases in the United States. Did you know that? You know, we've been talking about a lot of numbers here today. Sixteen lawyers. If you had 1500 lawyers die a year -- or miners die in a year from this disease, how many of them are actually being represented? How many is actually going to fight for them? Nobody. Two nights after my husband passed away, we didn't go to the funeral home because he'd been sent off for an autopsy. You're usually at the funeral home the second night. When they finally brought him back, we went to the funeral home that night -- the night before I was crying, I couldn't sleep. And I had a little nephew who's three years old. He come up and he patted my arm and he said, it will be all right. Aunt Linda, it will be all right. And I picked him up and I hugged him and I said, no, honey, I lost my bear. Now I didn't know the impact I was having on that young child when I said that. The next night when we went to the funeral home, my mom tapped me on the shoulder. I was standing up by the casket. My mom tapped me on the shoulder and he said look back there. And I turned around and Sam was coming through the back door dragging his favorite teddy bear. He brought it up front and he said, Aunt Linda, you can have my bear, you don't have to be sad any more. Now here was a child three years old was living the scripture where it tells us to take up the cause of the widow and comfort her. That little child was doing that. And you all have an opportunity to fix some of these rules. You don't lower -- or higher the numbers up. You go lower. Keep them safe so there won't be any more widows. I know a man by the name of Charlie Harman. He's a businessman in our town. Charlie was in World War II and he told me of an incident where he was trapped behind enemy lines. His whole company had been slaughtered. And he said when he heard the first missile coming from an air strike, he said he only had time to say three words of prayer, Please, God, no. When the shock from the shell hit him, he said he doesn't remember how far he was thrown through the air. But he survived that attack. 173 of his comrades did not. Seventy-one more died later. And the point Charlie was making with me was, that was World War II and they were killed by friendly fire. Something we didn't hear of back then. Friendly fire was something that we became known to us during the Vietnam war. The reason I bring this point up is, it's your job to keep these men safe. And I think you try very hard. I really do. I think you're trying to be true to what you do. But I think if you start lowering the bar, are you going to be killing men? Will it be friendly fire on your part? You know, ask yourself that. I do think we're trying to save lives here. I really do. But we need a continuous monitor going so that the numbers can't be fixed and they can't be falsified. Because that's what the operators do. And they're looking for loopholes. They constantly look for loopholes, how they can get around the standards that you're setting. And I think this new rule, this one sample rule, is exactly what that is. It's a loophole. And we can't afford to lose any more miners. You know, when our birthdays come around, my husband and I we would really make that a special day for each other. You know, a nice dinner, a gift, a card. He would get me roses, maybe a box of candy. I miss that. I really do. And I miss it a lot. I shouldn't maybe, but I do, I miss it. And I miss doing things for him. The miner that dies from this disease, it's a horrible death. It's not quick and sudden and peaceful. It's horrendous. It's like living your life with a sock in your mouth and a clothespin over your nose. There's no quality of life. Today is my birthday. There will be no roses, there will be no special dinner. There will be no card. So then I'd have to ask the question, what's my cost? How do I measure my cost of loss? I just beseech you, you know, just keep those rules stiff. Keep these operators measured. Don't let them pull the wool over anybody's eyes. You know, they do trick you, they do pull the wool, they do find the loopholes. But the bottom line is, they're not fooling anybody. The miners are still dying. You tell us if the levels are 2.0 mg that we're cutting it back, we're saving lives. The miners are still dying. NIOSH knows that, that's why they're saying maybe we ought to go lower. You know that, too, the numbers are there. I don't see how I could say anything more to get my point across, I really don't. It's a cost -- I know you can't measure cost. I mean I gave you some measures here today but you really can't measure the cost. Thank you. MS. NICHOLS: Thank you, Linda. Bob Cox? MR. COX: My proper name is Robert Cox, but living in a small town everybody calls me Bob. I guess because that -- you know, if you get mixed up and spell it backwards, it's still okay. But anyways, my concern here today, being a 35 year underground coal miner, doing that every day of my life for 35 years, as well as representing the men I work with at the mines, the six mines that I've worked at in my long career has taught me one thing about coal mining underground. You don't do anything before you weigh the cost. You don't flip the switch just to see if the light's going to come on. Once you flip that switch, if that light does come on or don't come on, it can set off a reaction that cannot be stopped by no one. And a lot of times coal dust is involved in what I'm talking about, stuff of that nature. I've watched a lot of my friends and neighbors die with years from black lung as this lady previously noted. And it's not a pretty sight. And I think probably some of you all have seen it. If you come from mining communities, most people that's involved in mining comes from mining communities or families that was involved in mining. And I appreciate you all's concern about the safety of the miner. You all are about all we have got to keep us alive. I worked for 35 years knowing every day that I might die at any minute. And that's a terrible burden on you. But it's still in the back of my mind where I might die from related causes also. But I still don't want to see any more of my friends and neighbors do it. And that's why I traveled some 200 miles today. I live down in western Kentucky, a little town called Beaver Dam, a little mining community, next to Muhlenburg County, it's Ohio County where I live. But I can't for the life of me -- you know, I consider myself modern and I don't fight all the changes. Especially if they're for the good. But I can't imagine raising the dust limit in the mines and that being good. Because the first thing that hits my mind is, even outside of black lung, you've got fires, you've got explosions, everything is related to coal dust in a coal mine. And when you talk about putting an Airstream helmet on someone, I never even seen one of them. And I heard people talk about them and I was at the hearing in Evansville the other day and I heard a little about that. I mean to me that's looking backwards. You need to eliminate the problem, not try to leave the problem there and work within it. That would be like putting a deep sea diving outfit on a baby to give it a bath. Just don't put so much water in the pan, you know. The same way about the coal dust. Just don't put so much dust in the mines. That way you don't have to put a helmet on somebody like they're fixing to play football or something. And, you know, just taking simple terms like that. Because that may be the reason I'm still alive to be here today, too. Always, like I said, before I do anything I always think about, well, what's this going to cost? What's this going to do? You know, and that's why I really w