IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES ) Pages: 1 through 314 Place: Prestonsburg, Kentucky Date: August 10, 2000 UNITED STATES DEPARTMENT OF LABOR IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) DUST RULES ) Holiday Inn Highway 23 Prestonsburg, Kentucky Thursday, August 10, 2000 The parties met, pursuant to the notice, at 8:30 a.m. BEFORE: MARVIN NICHOLS, Moderator APPEARANCES: Panel Members: RON SCHELL, CHIEF, HEALTH DIVISION COAL MINE SAFETY AND HEALTH LARRY REYNOLDS, OFFICE OF THE SOLICITOR CAROL JONES, DIRECTOR OFFICE OF STANDARDS, REGULATIONS AND VARIANCES GEORGE NIEWIADOMSKI MINE SAFETY AND HEALTH SPECIALIST COAL MINE SAFETY AND HEALTH THOMAS THOM, CHIEF, DUST DIVISION PITTSBURGH SAFETY AND HEALTH TECHNOLOGY CENTER JOHN KOGUT, MATHEMATICAL STATISTICS OFFICE OF PROGRAM, POLICY AND EVALUATION APPEARANCES: (CONT'D.) PANEL MEMBERS: REBECCA ROPER, SENIOR HEALTH SPECIALIST OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES RON FORWARD, ECONOMIST OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES ALSO IN ATTENDANCE: PAUL HEWETT, INDUSTRIAL HYGIENIST, NIOSH EILEEN KUEMPEL, SENIOR PHYSICAL SCIENTIST, NIOSH RODNEY BROWN OFFICE OF INFORMATION AND PUBLIC AFFAIRS PAM KING OFFICE OF STANDARDS, REGULATIONS AND VARIANCES I N D E X PAGE JOSEPH MAIN, UNITED MINE WORKERS OF AMERICA 24 TOM WILSON, UNITED MINE WORKERS OF AMERICA 38 DARYL DEWBERRY, INTERNATIONAL EXECUTIVE BOARD MEMBER, 59 UNITED MINE WORKERS OF AMERICA, DISTRICT 20 WILLIAM BOLTS WILLIS, CHAIRMAN, MINE HEALTH AND 80 SAFETY COMMITTEE, UNITED MINE WORKERS OF AMERICA LOCAL UNION 8843 BO WILLIS, PRESIDENT, UNITED MINE WORKERS OF AMERICA 89 LOCAL UNION 2274, DISTRICT 20, SUBDISTRICT 28 RANDY CLEMENTS, PRESIDENT, UNITED MINE WORKERS OF 94 AMERICA LOCAL UNION 2368 RICK GLOVER, UNITED MINE WORKERS OF AMERICA 102 LARRY TOLLIVER, CHAIRMAN, SAFETY COMMITTEE, UNITED 124 MINE WORKERS OF AMERICA LOCAL UNION 1713 DANNY SPARKS, PRESIDENT, UNITED MINE WORKERS OF 129 AMERICA LOCAL UNION 2232 RICKEY PARKER, CHAIRMAN, SAFETY AND HEALTH COMMITTEE, 137 UNITED MINE WORKERS OF AMERICA LOCAL UNION 2368 RALPH LONEY, UNITED MINE WORKERS OF AMERICA LOCAL 147 UNION 2232 ERIC BARNES, UNITED MINE WORKERS OF AMERICA 148 TOM SWEETEN, CHAIRMAN, HEALTH AND SAFETY COMMITTEE, 154 UNITED MINE WORKERS OF AMERICA LOCAL UNION 1545 THOMAS KLAUSING, UNITED MINE WORKERS OF AMERICA 161 LOCAL UNION 2161 J.R. PATSEY, UNITED MINE WORKERS OF AMERICA LOCAL 172 UNION 1713 LARRY PASQUALE, UNITED MINE WORKERS OF AMERICA 176 LOCAL UNION 2133, DISTRICT 20 I N D E X PAGE WILLIAM CHAPMAN, PRESIDENT, UNITED MINE WORKERS OF 180 AMERICA LOCAL UNION 1793 RICKEY KORNEGAY, EXECUTIVE BOARD MEMBER, UNITED MINE 181 WORKERS OF AMERICA, DISTRICT 20 REGGIE STALLARD, UNITED MINE WORKERS OF AMERICA 185 LOCAL UNION 1760 WILLIAM SAWYER, SAFETY COMMITTEE, UNITED MINE WORKERS 188 OF AMERICA LOCAL UNION 1926, DISTRICT 20 TOM MESSER, UNITED MINE WORKERS OF AMERICA LOCAL 205 UNION 1760 TERRY HUNTER, CHAIRMAN, SAFETY COMMITTEE, UNITED MINE 208 WORKERS OF AMERICA LOCAL 1926, DISTRICT 20 GARY TRAMELL 214 EDMOND COOK 222 CHUCK WILSON, PRESIDENT, UNITED MINE WORKERS OF 225 AMERICA LOCAL UNION 1545 MAX KENNEDY 229 JIM BRACKNER, UNITED MINE WORKERS OF AMERICA LOCAL 242 UNION 2245 BILL CAYLOR, KENTUCKY COAL ASSOCIATION 245 DAN SPINNIE, UNITED MINE WORKERS OF AMERICA LOCAL 259 UNION 2161 STEVE WOLFE, UNITED MINE WORKERS OF AMERICA LOCAL 263 UNION 1969 KEITH FLOWER, CHAIRMAN, HEALTH AND SAFETY COMMITTEE, 266 UNITED MINE WORKERS LOCAL UNION 2397 DAVID MCATEER, UNITED MINE WORKERS OF AMERICA 291 SAFETY REPRESENTATIVE, JIM WALTERS NO. 4 MINE I N D E X PAGE GREG MAHAN, PRESIDENT, UNITED MINE WORKERS OF AMERICA 292 LOCAL UNION RANDY KLAUSING, CHAIRMAN, SAFETY COMMITTEE, OLD BEN 298 COAL COMPANY DWIGHT CAGEL, HEALTH AND SAFETY COMMITTEE, UNITED 307 MINE WORKERS OF AMERICA LOCAL UNION 2397 MIKE NELSON, UNITED MINE WORKERS OF AMERICA LOCAL 310 UNION 1867, DISTRICT 20 P R O C E E D I N G S (8:30 a.m.) MR. NICHOLS: Good morning. Can you hear me in the back? Can you hear okay in the back? ALL: Yes. MR. NICHOLS: Okay. Good. Good morning. My name is Marvin Nichols. I'm the Administrator for Coal Mine Safety and Health with MSHA. I'll be the moderator for today's public hearing. On behalf of Davitt McAteer, the Assistant Secretary for MSHA, and Dr. Linda Rosenstock, the Director for NIOSH, I want to welcome all of you here today. This morning we will begin the public hearings on two proposals which were published on July 7 in the Federal Register, the joint single sample proposal and plan verification proposal. Your comments here today will be included in the record with both proposals. Let me introduce our panel. To my left is Ron Schell, the Chief of the Health Division for Coal Mine Safety and Health, and to my right is Larry Reynolds with the Office of the Solicitor. Behind me we have Carol Jones, Director of MSHA's Office of Standards, Regulations and Variances; George Niewiadomski, Mine Safety and Health Specialist, Coal Mine Safety and Health; Thomas Thom, Chief, Dust Division, Pittsburgh Safety and Health Technology Center; John Kogut, Mathematical Statistics, Office of Program, Policy and Evaluation; Rebecca Roper, Senior Health Specialist, and Ron Forward, Economist, both for the Office of Standards and Regulations and Variances. Because the simple sample is a joint MSHA/NIOSH proposal, Paul Hewett, Industrial Hygienist, and Eileen Kuempel, Senior Physical Scientist, are here from NIOSH. Rodney Brown from MSHA's Office of Information and Public Affairs is also present at the hearing. Rodney, raise your hand. Rodney is in the back. He will provide press kits for the media in attendance and will be available to answer any press inquiries. We also have Pam King from MSHA's Office of Standards, Regulations and Variances. Pam greeted you when you came in. If you have not signed in yet, please see Pam, or if you wish to speak to get your name on the list of speakers. MALE VOICE: Sir, we can't hear in the back here. MR. NICHOLS: You can't hear? Can you hear me now? MALE VOICE: Yes. Sounds good. MR. NICHOLS: Okay. Good. I finished up with Pam. Raise your hand, Pam. If anyone wishes to speak that's not on the sign up sheet, please see Pam to do that. Let me talk a little bit about how the hearing will be conducted. The formal rules of evidence do not apply, and the hearings are conducted in an informal manner. Those of you who have notified MSHA in advance will be allowed to make your presentations first, and following these presentations others, others who request an opportunity to speak, will be allowed to do so. I would ask that all questions regarding these rules be made on the public record and that you refrain from asking the panel members questions when we're not in session. A verbatim transcript of the hearing is being taken, and it will be made part of the official record. Please submit any overheads, slides, tapes and copies of your presentations to me so that these items may be made part of the record. The hearing transcript, along with all of the comments that MSHA has received to date on the proposed rule, will be available for review. If you wish a personal copy of the hearing transcript, you should make your own arrangements with the court reporter sitting to my left. We will also accept additional written comments and other appropriate data on the proposed rule from any interested parties, including those who have not presented oral statements today. These written comments may be submitted to me during the course of this hearing or sent to the address listed in the hearing notice. All written comments and data submitted to MSHA will be included in the official record. If you wish to present any written statements or information for the record today, please identify them. When you give them to me, I will identify them by title as being submitted for the record. Once again, Pam King sitting at the back at the door has an attendance sheet that you may wish to register your presence here today. To allow for the submission of post-hearing comments and data, the record will remain open until September 8, 2000. As you may know, we held a hearing on Monday, August 7, in Morgantown, West Virginia. We have another hearing scheduled for Salt Lake City on August 16 from 8:30 a.m. until 5:30 p.m. or, excuse me, 5:00 p.m. We scheduled this hearing to run all day today, and, if necessary, we'll continue tomorrow morning. Before we begin, let me give you some background on the proposals we're addressing here this morning. First, the single sample joint proposal. In it, the Secretary of Labor and the Secretary of Health and Human Resources announced their proposed finding in accordance with the Federal Mine Safety and Health Act of 1977 that the average concentration of respirable dust which each miner in the active workings of the coal mine is exposed can accurately be measured over a single shift. In this proposal, the Secretaries are proposing to rescind a 1972 finding on the accuracy of such single shift sampling. The joint proposal also addresses the final decision and Order in the National Mining Association v. Secretary of Labor issued by the United States Court of Appeals for the Eleventh Circuit on September 4, 1998. That case vacated a 1998 joint finding and MSHA's proposed policy concerning the use of single full shift respirable dust measurements to determine non-compliance when the applicable respirable dust standard was exceeded. As most of you know, the single sample issue has been through a long public process, which is outlined in the preamble to the proposal. That process ended with the September 4, 1998, ruling by the United States Court of Appeals for the Eleventh Circuit. The Court vacated the 1998 joint finding concluding that the record contained no finding of economic feasibility and that MSHA failed to comply with Section 8811(a)(6) of the Mine Act. Therefore, in response to the Court's ruling, the Secretaries are proposing to add a new mandatory health standard to 30 CFR, Part 72. The 1972 joint notice of finding would be rescinded, and a new finding would be made that a single full shift measurement will accurately represent atmospheric conditions to which a miner is exposed during such shift. This finding is the basis for the new proposed mandatory health standard. MSHA believes that single shift, single sample measurements are more protective of miner's health than the current practice of averaging multiple samples. The process of averaging dilutes a high measurement made at one location with lower measurements made elsewhere. MSHA recognizes that single full shift samples have been used for years by OSHA and at metal and non-metal mines in this country. The coal mining community had the opportunity to experience use of single full shift measurements for a two year period in 1992 and 1993 and from May, 1998, until September, 1998, when the Court of Appeals vacated the agency's finding. We're interested in your comments concerning the application of single full shift samples at your mine during those two periods. Additionally, because the proposal would be implemented as a mandatory health standard, all elements of Section 101(a)(6)(A) of the Mine Act have been addressed in this proposal. These include the portions of the proposal which addressed health effects, develop a quantitative risk assessment and the significance of risk. We're seeking your comments on this proposal as well as on plan verification. The plan verification proposal is based in significant part on recommendations contained in the 1996 report of the Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis. That report was based on the studies and discussions of representatives from labor, industry and neutral experts. They believe that if the recommended changes were made, black lung disease could be eliminated, and confidence would be restored to the federal program to control coal mine respirable dust levels. The plan verification proposal adopts three key recommendations of the advisory committee. One, MSHA should take full responsibility for all respirable dust sampling for compliance purposes; two, MSHA should verify ventilation plans at typical production levels; and, three, MSHA should require operators to record production levels and dust control parameters to monitor dust levels. Under the plan verification rule, all the existing requirements in our regulations at 30 CFR, Parts 70 and 90, for underground coal mine operators to conduct respirable dust sampling would be revoked. MSHA would assume responsibility for all sampling to determine if miners were overexposed to respirable coal mine dust. This includes bimonthly sampling, abatement sampling, sampling to establish a reduced standard in mines for quartz as present and Part 90 sampling for miners who have evidence of the development of pneumoconiosis. Since MSHA would conduct all sampling, the miners' representative would have the right to observe sampling with no loss of pay. Before approving ventilation plans, MSHA would conduct verification sampling under typical production levels with only the controls listed in the plan in effect and for the full shift. This would assure that miners are not overexposed to respirable dust. The results of these verification samples must be below the critical values listed in Section 70.209 of the proposal before MSHA would approve the plan. The proposal defines full shift differently for purposes of plan verification and abatement sampling and for bimonthly compliance determination. The proposal would revise the existing definition of concentration so that it is an eight hour equivalent measure even if the work shift is longer than eight hours. In addition, under the proposal only MSHA samples would be used to establish a reduced standard in the underground coal mines for quartz as present. This would change the existing procedure, which allows operators to submit samples which are averaged with MSHA samples. Finally, MSHA would allow mine wall mine operators to use on a limited basis either powered air purifying respirators or administrative controls when all feasible engineering controls cannot maintain respirable dust levels at or below the applicable standard. Coal mine operators must first request that the Administrator for Coal Mine Safety and Health determine that all feasible engineering controls are in place. If so, MSHA would grant the operator interim ventilation plan approval. However, the operator must implement any new feasible engineering control which may become available. In response to comments we got at our Morgantown hearing, we'd like to spend just a few minutes outlining in greater detail the major provisions of these rules. Ron is going to give a short presentation, and then we'll begin taking comments. MR. SCHELL: Would you just give us a second to set up? Some of the guys in the back, there are some chairs up here if you'd like to come up in about the second or third row. This would be a good time to do it. (Pause.) MR. SCHELL: Can you guys hear me in the back? Can you hear me now? Is this better? ALL: Yes. MR. SCHELL: Okay. I'm just going to have to hold this. Guys, I'm going to try to make this short. We're doing it based on a request that came out of the hearing in Morgantown. I hope all of you can see the charts up there because I'm not going to take the time to read everything that's on this chart. The thing I do want you to know -- move to that next slide, would you, John? What I do want you to know is the way we've set this up is on the left-hand side are the current requirements under the rules, and you guys are familiar with that. Then on the other side of the chart what we've done is put the new requirements so you can sort of visually get an idea of what the current requirements are and then how we're proposing to change those requirements in this rule. Like I say, I'm going to try to keep this short. Go ahead to the next one. Basically there are four things that we're doing with these proposed rules. We're addressing effective plans, we're addressing compliance with these plans, we're addressing monitoring of plan effectiveness, and we're addressing abatement. The point I want to make, guys, is mining isn't like any other industry. In most industries the first thing you do is you go out to sample to determine if there's a hazard. We don't have to do that in the mining industry. We know that when you cut coal or when you transport coal, coal dust is being generated, and that coal dust, whether it be respirable coal mine dust or quartz dust, can be unhealthy for you, so you have to start out recognizing you have to control dust. What keeps miners healthy are dust controls in place that limit your exposure, and those controls have to be in place every shift because you're going to be exposed to that hazard every shift, so to us the key of these new rules are to have an effective control plan that works and have an effective control plan that works every shift. I'm not saying that monitoring isn't important. It is. Monitoring is key to making certain that that control plan continues to work. MALE VOICE: The mike is out. MR. SCHELL: The mike is out? MALE VOICE: You're back on. MR. SCHELL: Back on? Can you hear to me now if I don't touch it? MALE VOICE: Yes. MR. SCHELL: Okay. I'm going to pretend like I'm eating this. You guys in the back, if it goes down yell at me again, would you? Again, controls are keys to protecting you guys. Monitoring ought to tell us if those controls are working. Abatement ought to assure us that those controls are working, so in this proposal we are really focusing primarily on getting effective controls and making certain those controls are placed every shift that you're working. On average -- on average -- you guys work 400 shifts a year. We want you to be protected on 400 shifts a year. How are we proposing to have effective plans? Again, like I say, this is key to these regulations. Simple. We want dust control plans in place that limit your exposure to acceptable levels. Secondly, we want those dust controls in place so that you're protected even at the upper limits of production. What these rules say is from now on we want those dust controls to protect you for the full shift, not just for the eight hours that we were sampling in the past. The key to this proposal, and you guys all know what an average is. Somewhere in the middle. You've got the low and the high, and the average is somewhere in the middle. Right now we're verifying those plans at about 60 percent of the average. Sixty percent of the average. We're proposing that in these rules we're going to make sure that those plans work above the average. A key ingredient. To make sure we know it's working above the average in terms of production, we're going to require operators to maintain records on what the production is on every MMU so we can go in and see what the production is. Lastly, or, excuse me, next, we're going to verify those plans. MSHA is going to verify the plans through full shift sampling at the upper limits of production, and the only controls that the operator can have in place when we're verifying are the ones specified in the plan. I know some of you here I've had discussions where we've had conversations about the operator having controls greater than those in the plan in place when we sample. Verification sampling. They have to reduce those controls to what they say is in the plan. We give them a range of up to 15 percent above because we know we can't always reach 100 percent. Another key point. That plan has to be verified on both the high risk occupation, the designated occupation, and on continuous miner sections on the roof bolting, and we don't just look at respirable coal mine dust. We look at respirable coal mine dust, the two milligram standard, and we look at quartz separately, so that plan has to be verified on total dust and on quartz, 100 micrograms of quartz. That verification sampling could take anywhere from one to ten shifts or even more because again it's got to be at high production with only the controls specified in the plan in place. We do have a provision in there that says if we can't verify that plan on long walls -- if we can't verify that plan on a long wall -- and all engineering controls are in place, we will consider the use of PAPRs, airstream helmets or administrative controls downwind of the shear operator. Only downwind of the shear operator. You have to control to the standard to the shear operator. With people going downwind, we recognize there might be some occasions where they aren't protected. There we're going to consider PAPRs and administrative controls. A plan is no good unless it's in place every shift. MALE VOICE: The mike is out. MR. SCHELL: Back on? MALE VOICE: No. MR. SCHELL: Let me try this again. Can you hear me back there? Okay, guys? Now? ALL: Yes. MR. SCHELL: A plan is no good unless it operates every shift. So what are we going to do to make sure that that plan is operating every shift? We're going to do what we currently do, and that's require mine operators to check that plan before production on every shift. The difference? What they're going to be checking is that plan that's been verified at the upper limits of production with only the controls listed in the plan in place. In addition to that, we're going to continue to check it when we check to make sure the operator is doing their on shift examinations during our regular inspections, but we're going to be there six times a year sampling where we're going to check it, and when abatement sampling occurs MSHA is going to do that abatement sampling. We're going to be looking to make sure they're doing their on shift examinations. Also, we're going to be looking at their production records because if we see that their production is way above what that plan was verified at, they're going to have to go back and reverify that plan at that higher production. The key, guys. You've got to have a good plan that protects you. You've got to have that plan working every shift. That's what we're trying to do with these rules, and we're really soliciting your comments on what we can do to make that more effective. How are we going to address monitoring? Marvin mentioned that we're going to assume responsibility for all compliance sampling. The key to that is that sampling is no longer -- compliance determinations under that sampling are no longer going to be made based on averaging low dust samples with high dust samples. We're going to use single sample determinations. Each sample stands on its own, so if one of those samples exceeds a standard a citation will be issued. No more averaging. Significant improvement, guys. The rule does propose that we continue sampling only eight hours like we're doing now. We have, however, asked for comments as to whether or not we ought to be conducting full shift sampling during compliance sampling. The reason we went with eight hours is since the primary purpose of that sampling was to tell us whether that plan continues to protect you or not, we thought an eight hour sample would give us a good feel because, remember, we're there so we're going to know what dust controls are in place. We're going to know what the production is because we're doing the sampling. That doesn't happen now with operator sampling because we're not there. We don't know what's happening, but we are soliciting your comments on whether MSHA compliance sampling should be full shift sampling. Also, when we sample we won't just sample one occupation for five shifts. We're going to sample at least five occupations on the MMU for one shift, so we're going to be sampling six times and taking five samples. Right now the operators sample one occupation. They do it on five shifts. We will, as the operator does, sample the roof bolter six times a year, and we'll sample those designated areas near the MMU six times a year just the way the operator is doing now. Likewise, we'll be sampling Part 90 miners at the same rate that operators do now. There is one difference. The outby DAs. We're proposing that we sample those once a year. Right now the operators sample them six times a year. The reason we're proposing that is if we look at the data we issue very few citations on outby DAs. Remember, I said we're going to be sampling it at least once a year. If we've got a problem DA, we're going to be sampling it more than once a year. Again, a key ingredient we believe to MSHA taking over all compliance sampling is we're going to be there. We will know what the dust controls are that are in place. We will know what the production is. We will be able to assess the adequacy of that plan every time we sample, again going back to my point. The way to protect you guys is good plans that work every shift. Abatement. Abatement sampling. Right now operators do abatement sampling. We don't know what the dust controls are in place. We don't know what the production is. We're proposing to change that. MSHA will do the abatement sampling. Because we're doing it, you have a right to participate in that abatement sampling, a right that you don't have currently. Also, abatement sampling will be based on single sample measurements. Again, no diluting high exposures with low exposures. When we sample on an MMU, we'll sample all five occupations, not just the occupation that was out of compliance. If it's a DA, we'll sample that DA, and compliance will be made on the basis of a single sample measurement. Production will be higher than when operators sampled, and, key, we will sample the full shift on abatement sampling. If you're working ten hours, we're going to sample ten hours. We want to be comfortable when we finish that abatement sampling that that plan works to protect you on every shift. I keep coming back to that, guys, because that's the key, the way to protect your health; a good plan that works every shift. I've taken more time than I intended. Marvin? MR. NICHOLS: Is this mike on? Can you hear me? ALL: No. MR. NICHOLS: Can you hear me now? ALL: No. MR. NICHOLS: Let's take a five minute -- oh, it's on now. There went your break. Okay. We are having copies of the presentation Ron made put together. We will have that by probably sometime late afternoon or earlier for anybody that wants a copy of that. We'll put it on the back table where Pam is. Okay. I think kind of the way the hearing is going to go, right now we've got 63 individuals signed up to present comments. MS. KING: Sixty-seven. MR. NICHOLS: How many? MS. KING: Sixty-seven. MR. NICHOLS: Sixty-seven and growing, so I would expect that we'll be here for sure all day today and whatever time it takes tomorrow. Probably we will run until about noon and take an hour break and then come back and start again. I was asked by the hotel folks to mention that there's an all-you-can-eat buffet lunch here, so it's up to you guys. Why don't we get started? We have a shortage of mikes. It would help when you come up and do your presentation if you could use the podium. If you prefer to use the table, then we can pass this mike back and forth. When you come up and start your presentation, if you would please state your name, the organization and spell it for the court reporter. Spell your name. Okay. Anything else? Okay. We'll get started. Our first presenter is Joe Main with the United Mine Workers of America. Joe? MR. MAIN: Is it working back there? My voice is about gone, so if it fades out just holler at me. I'm Joe Main with the United Mine Workers. Since I presented some extensive testimony on Monday, I'm not going to be saying too much here this morning. I had planned on doing some document introductions. We're going to wait until the end of the hearing to do that because there are some very important documents that we need to get on the record, and we believe that we need to explain those clearly to the panel so they understand those. I would just like to start off this morning saying that we appreciate the opportunity to be here and address the proposal issued by MSHA. I sometimes feel that we're in this Mexican standoff, and I'm trying to figure out in my mind how this is all playing out, but I think it's a safe thing to say that we have said from the beginning there is improvements in this rule. Those deal directly with plan verification and single sampling. The problem with those two is that they are in need of redrafting, in our opinion, and we're going to give a lot of reasons why, as we already started to do on the record in Morgantown. I think the presentation that was given this morning, we do appreciate that, Ron, but I still think it leaves a lot of things missing in those pictures, and it always worries me if people don't have a good appreciation for this whole process. In the plan verification process, as we pointed out in Morgantown, the way that's drafted is so discretionary that I think in comments I've also heard from the operators both sides have a belief that the proposal is too discretionary to the point that nobody knows what to expect when MSHA shows up at the mine. That's one major problem from the outset. I think there's some technical problems that are going to be addressed here today with the formulas that's used, the production levels, the production rates, how verification will actually take place, and really in this plan verification process there is a miner participation issue, which is not in the rule. We keep saying that. You know, as we look through the rule from front to back there's no miner participation rules at all that address, you know, the issues that needed to be. We all know that the operators have made clear their plans to oppose miner participation in plan verification since it's going to be an announced proposal, and that for starters we know we're in a big hold before we ever get out of the box. If you look at this whole plan verification process, it's the operators will do this, and MSHA will do this. Other than the tag along role, there is no provisions in there for miner participation involvement. You know, as I sat down and started looking through this, and miners kept asking me questions. Joe, what rights do we have there? I said well, if MSHA would prevail in this policy you would have a right to participate, which we know is going to be challenged unless the operators change position, but as far as having any influence over that proposal or over that process just hopefully you can influence an inspector, but we have no legal rights at all. That's something we're taking a hard look at in terms of this plan supposedly protecting miners with a lack of any clear cut legal rights that miners would have in this plan verification process. The single shift sampling. Just to put it bluntly, it ain't what miners asked for. That's been an issue, one of many public hearings and much testimony before in the past. Miners expect a full shift sampling to represent their actual exposures, not on spotty sampling. I also go back to the plan verification because as MSHA pointed out, it's going to take a long time to get these plan verifications in place, and if an operator passes the first test, which is a pretty stringent standard, which we appreciate, but once they pass that test then the real back up is compliance sampling to assure that miners are not in dust. We get over to that side of the aisle, and we look at what compliance sampling is. Hey, it's far short of what miners have been saying for years. I went back through, and I hope everybody has a copy of the Dust Advisory Committee report because those recommendations, we took them very seriously and we've recorded those, but I went back through there last night just flipping through here and just looked at some of the comments that miners made, the abbreviated version. You need to read the full text to really give you a feel, but how miners talked about the need for more frequent sampling, and that was based on the sampling that was taking place at the time, which I understand was four MSHA samples underground, two on the surface, and 30 shift samples by the operator. Despite this overwhelming plea from miners to increase sampling, when we look at the proposal it does not do that, and there is a decrease in sampling by 83 percent of the shifts sampled under this proposal any way that you slice it. I had miners in Morgantown after the hearing ask me Jim, when is the next time you think we're going to get sampled on the midnight shift? I said well, I didn't know what the deal is; if it was six samples a year. They said well, when are we going to get sampled on the afternoon shifts? I said, you know, those are very logical questions that, given the nature of the beast that we've had to deal with with MSHA, there's not a whole lot of folks that rush to the well that want to work overtime shifts in MSHA, particularly midnights and the afternoon. I said you basically run an opinion on your past history. I think it will get picked up. Going to the six shifts a year, sampling is an issue that just cannot and will not be supported by miners in the union. It's contrary to everything that's been said by miners and mine workers over the years. The outby sampling. There was some discussion in Morgantown about that, and I think some miners made it very clear that the old system or the current system is inadequate. There is an entry for the sampling. I read back through the notes of the July, 1998, meeting that was held on plan verification, and that was one point that was raised that MSHA had committed to go back and take another look at. When they did, we wasn't happy with the end result. They went from bimonthly sampling outby to one shift outby. That's not the direction that miners had perceived this whole rule to go in or the direction of the reform. There are several other issues that we've already pointed out in the record that I think have not been clearly stated here. The compliance sample. Miners have to understand, and it's not in the rule, but it's the position that the agency has taken, which they've informed us of, that the two milligram standard as contained in the proposed rule under 70.100 is not a two milligram standard when it goes to be applied for compliance. It's going to be a 2.33 standard which the citation is going to be issued on. That is not contained in the rule. It's in the reference on page whatever it is there in the preamble by some formula that miners, unless we tell them all this, has no clue. We think that's very unfair for the agency not to have stated that equivocally since I understand I have been told that is their plan. It's not in the rule. It wasn't publicly noticed properly for miners to have a chance to respond to it. Additionally, miners who work outby and miners who work as Part 90 miners are going to have their standard increased for compliance purposes to 1.26. Again, I think that's unfair not to have that kind of standard noticed in the rule for miners to clearly know these compliance standards are being elevated. So when you look at it you go back and say okay, we're going to have six samples a year. There are going to be eight hour samples, not full shift samples. They're going to be based not on the two milligram standard, but on the 2.33 milligram standard or 1.26 milligram standard. The rules have changed there. That is not, I don't think, favorable to miners. If you look at the Dust Advisory Committee in the recommendations of miners, I can't find anywhere where any miner has gone on record where the DHC was on record saying increase the dust levels. That is just totally contrary to the direction of I think the entire record on reform. Now, there might have been some mine operators had asked for that, and I think there was some mine operators that asked for some increases somewhere along the line, but there is no evidence that I found where miners have come to this agency and said reduce and eliminate black lung by raising our dust levels. It's just not there. That's a real problem that this union is not going to support, and I don't think you're going to find miners who support that. The whole idea of jacking up dust levels to four milligrams on long walls. As we said before, that is part of the deal, and this is a deal that we've sort of kind of realized because there was a lot of tradeoffs for miners to get two things, of course, that are still inadequate, but as part of the deal a lot of miners are going to find themselves working some of them in the same scheme like what the miner has here now with their dust levels jacked up two more milligrams, and we think that's a deterioration of the protections for miners. We sit back and say how in the world does that accomplish the eradication of pneumoconiosis by raising the dust level to four milligrams? It doesn't make sense in our heads, and again we will not support that kind of a proposal. As we said, too, the standards by which miners can point a finger to and say MSHA, go do this, or, operator, go do this, those have been wiped out of the standard or out of the rules with regard to the whole sampling scheme. Miners have to rely on running up to Marvin Nichols and whoever the new administrator will be after the next President, who could be another Ford B. Ford, who made a decision in 1981, whenever it was, to cut the dust inspections back in coal mines right after we come out of one of these reform periods and ask gee, would you come and do my six dust samplings a year because you're not guaranteed under the law, and there's no firm guarantee that those samples will even take place two and three years from now. It was a pig in a poke proposal. The style of the proposal itself is laced with so much policy application and laced with so much discretionary control by the agency that the operators nor the miners know exactly what to expect when MSHA comes out. It's sort of like hopefully you're good friends with the inspector when he makes a decision on a plan verification. If he happens to be PO'd at you because you got on his case for something that he didn't cite, I mean, this whole standard is just designed in a way that allows too much personal influence in the decision making process. It's not good for miners and not good for mine operators. There's where we have the rules played out there. In terms of the ability of miners to understand this rule, it is so complex it has taken lawyers, safety reps. I've pointed this out to safety committees and let them sit down and take a look at it. The rule is so complex that if you don't have a lawyer, and I had to have a lawyer with me and the good help of some MSHA folks like you to really understand it. I'm saying I know so much about this whole process. I've served on the DAC committee to help make these recommendations, and if I can't figure this stuff out how on earth is the coal miner supposed to? I've got access to all these resources. It's a very complicated rule, and it doesn't say what it means and doesn't mean what it says because of the policies that apply throughout the rules. There is so much that is problematic with this rule that it overshadows the good steps forward it's taken. The actions taken by MSHA that they responded to the four issues in a lawsuit filed by the UMWA. I'm telling you here now I swear to God those ain't taken care of. I think it was a disservice to the public and to the mine workers for the agency to say, given the immense amount of work that has been done by miners and by the union, to have those four issues addressed to just chart them back in some discussion in the preamble and claim to the world we addressed those because that's exactly what you folks did. Until I see a rule that says those, until miners see a rule that says those things that we asked for, those are not taken care of. We're not going to settle for policy statements that could be changed by the next Administration, and we're not going to settle for some assertation that these had been addressed in rule making when in fact they are nothing out there tangible that the miner has. There is no takeover of the operator program as we had envisioned. There is no takeover of the operator program as recommended by the advisory committee. There is no takeover of the program that would at least maintain the frequency of sampling that we had in 1996, let alone today. Until those things are accomplished, there will be no support for the mine workers. The record on the Dust Advisory Committee I think is quite clear. There was a lot of big discussion. I remember I think it was at the Lexington meeting you came forward and talked about the possibility of MSHA doing a monthly sampling scheme. I think it was 12 a year. During this whole discussion, I think the advisory committee in its final action made it clear that that was not acceptable to the advisory committee, and when it issued its final recommendation calling for at least the frequency in number of those of MSHA and the operator that meant what it said. At least that number. For anybody to think that -- we had miners that testified in Morgantown that their mine, 900 shifts a year, to say on three shifts a year we're going to validate those miners' exposure and say we're comfortable with that that those miners are being protected and we're eradicating black lung with those kinds of approaches is dead wrong. It's a wrong headed approach. It flies in the face of what miners have demanded for years. It flies in the face of the findings of the advisory committee, and it's just totally unacceptable. I'm not going to spend a lot of time up here today going through these, but I think that what's happened here is MSHA has made a calculated decision, and maybe rightfully in their own mind, that this thing is going to work. I think whenever miners saw it, when we see it at the bottom, and understand how this thing is really going to be implemented, it's not going to work. My fear is that this is the last reform that miners are going to see. It took us -- to get to the stage we're at today, it took us over 20 years to get here. With the pace of regulatory reform in this country, I'll probably be in a grave somewhere by the time this thing gets reformed again, and so will a lot of miners. I am not going to be one to stand up and say this is the kind of reform that we need to protect the miners in this country when I know it's dead wrong. I don't agree with it. I think it's wrong headed, and I think the agency missed the big mark when they failed to follow the recommendations of that advisory committee. The next time I get asked to serve on an advisory committee I'm going to ask a simple question. Are you really going to do what the advisory committee requests us to do? If the answer is no, I'm not wasting my time. I apologize to a lot of miners out there that I had to come to this hearing to testify to tell what was going on in the coal mines because a lot of them told me Joe, the government ain't going to listen to us. They ain't listened to us in the past. They're not going to listen to us again. I said this time, guys, I think they will. There's so much on the record here. There is such a case that's been built that miners have been put in unhealthy dust for so much of their lives. We've had just thousands and thousands of miners dying from this disease. We've got all this corruption going on in this country with the sampling program. I think this time they will listen. I was wrong, and I apologize, and I will not bring miners back to go through that exercise again. If the government ain't going to follow the recommendations of their own committee, by golly, don't appoint them and waste the public's time. Now that you've done it, I think the proclamation on this rule is not fair. I think there's a lot that we pointed out here in the hearings that we have said that we verified that are not in the rule, not in the rule, not in the rule. Things have been stripped out of the rule. There is protections that are being diminished. Miners' participation marginally, only by policy, has seen some improvements, and those are not guaranteed; only by the Mine Act that's been in effect for years. What we said at Morgantown is this proposal is fatally flawed. It needs to be sent back. Go back to the drawing board and come out with another one that really reflects the needs of the nation's miners, reflects the findings of the advisory committee because our lawyers in our department and others have taken a look at this and come to the conclusion the kind of reforms that need to take place to fix those things that follow the recommendations of the advisory committee, that institute the lawsuit issues, to respond to the needs of miners, cannot be done legitimately in this rule making. You're too far off the path to go back and mandate it. This is a proposal that bandaids won't work. It needs to go to the emergency room. It needs to come back out of there with the whole body that really addresses the issues that face the nation's miners. As far as trying to do something here, what this proposal represents is give a little bit to the miners and give some to the operators here. We are for reforming the program in the best interest of the miners in this country; nothing short of that. We fully expect the government to at least once in its long string of activity to take the concerns and the needs of miners to heart by thinking for a while how this affects MSHA and think for a while how this really affects miners and what miners really said they want and need and come back out with a proposal that reflects the changes that are necessary. Thank you very much. MR. NICHOLS: Thank you, Joe. (Applause.) MR. NICHOLS: Our next presenter will be Tom Wilson, United Mine Workers of America. MR. WILSON: I'm Tom Wilson, T-O-M, W-I-L-S-O-N. I work for the United Mine Workers of America International Union. It was suggested yesterday to me that probably a good thing for me to do today would be cover the -- give an overview and cover the history of what got us here today. As I was sitting in my room last night at 2:00 a.m., I got so frustrated with that approach that I decided just go back and explain in my view what's occurred since July 7. Joe Main just mentioned the complexity of these rules. That's an understatement. On July 7, I received a phone call and was asked to get my hands on the proposals that MSHA had just released by the end of the day, while I'm to start reviewing those proposals over the weekend and to give an opinion of them on the following Monday, on July 10. Right here in my hands is what was on the Internet on July 7 that MSHA had released that morning. I started reading that. By Monday morning, by no way, shape or form was I completed reviewing it, but I had formed an opinion that somewhere along the line MSHA obviously didn't look at the record and didn't listen to the testimony. Between July 7 and the 10th, I reviewed the package. I shared my opinion on July 10, and I immediately ordered this material, which was the background of what should have got us a proposed rule. In here is the task group report done in 1992, and in the preamble, which I had read over the weekend, MSHA mentions the task group report. They mention their findings, or at least in part, and they state, "The effort to implement these changes was suspended pending the recommendations of the Advisory Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers, which was convened in 1996." There's another way of saying that. There's a Tom Wilson way of saying that. From 1992 to 1996 nothing was done, and we formed another committee and we looked at it again. Also in what I requested on the 10th was NIOSH's document, Occupational Exposure to Respirable Coal Mine Dust: Criteria for a Recommended Standard. I believe that was done around 1995. I could be wrong on that. Then, in 1996, the advisory committee report. Now, the UMWA had Joe Main and Dr. Weiss as members of the advisory committee. Short of them, I probably attended more advisory committee meetings and worked in conjunction with Joe and Jim throughout those hearings, and I guess it was because of that I got the phone call on July 7 asking me to take a look and form an opinion. Also in the material I ordered on July 10 was the UMWA's lawsuit against MSHA. Now, that was filed early 2000. Another four years, just like the task group report, had gone by, and there had been no movement. Even though I had formed an early opinion on July 10, between July 10 and July 17 I continued to review Packages 1 and 2, and this was continuously during that process. The more I reviewed, the more frustrated I got; the more need I felt for going even deeper into the record. I remember back there in the advisory committee meetings observing something and having a thought. Whether right or wrong, the thought entered my mind. I see top MSHA officials pop in, maybe speak for a few minutes and pop out of that process. The thought entered my mind at that time and again this week what possible chance was there to understand the problems and find a solution by just popping in and popping out? I assume they had read the report and the transcripts of what was said at those meetings. I'm sitting here today. I don't believe it because on July 18 I started reviewing the transcripts of the advisory committee hearings, and just like the process of starting and trying to absorb everything in the July 7 document, which I'll be very honest. To this date I have not accomplished reading and absorbing all of this information. To this date, I have not accomplished reading and absorbing all this information, and by no means did I accomplish reading word for word the transcripts. I got so frustrated with this process that between July 18 and 31, day after day, I called my local unions and asked them to come and assist in reviewing these transcripts and had as many as three per day volunteers assisting me going through the transcripts. Even with that team, we didn't make a dent in it. I remember getting frustrated, and along about that time I called MSHA-Arlington thinking that possibly they had a shortcut to what I was seeking to find in these documents. Possibly they had an index by topic of where it was found in those transcripts. I was assured no such index existed at MSHA. Well, by this time we're at the end of July. August 1 through August 9 I, to the best of my ability, myself and the safety committees and miners' reps, started preparing for today's hearing while continuing to do this review. The history on this subject, the record on this subject, and this is just the tip of the iceberg, and everybody on this panel knows this. There hasn't been a decade gone by that miners haven't came to the mike and testified, that a record hasn't been made, and for a big part that record is pretty much consistent. I stopped at the office yesterday morning. You know, one great thing is that we get to come to these public hearings and state how we feel and why we feel that way. I picked up a bulletin yesterday morning released by MSHA on best practices on mine fires. Whether the thought is right or wrong, it's a thought that Tom Wilson had that I'm surprised we're even having public hearings on dust. Instead, it wouldn't surprise me just getting a memo on MSHA's best practices on dust. I view MSHA. There's been a change in my heart and in my mind over the years. Back in 1996, as I was attending those advisory committee meetings, I believe that I still felt and believed that MSHA was an agency that was after the best interests of the miners, that at that time they was going to take the advisory committee report, and they was going to do what was right. Today, Tom Wilson is of the opinion that MSHA is an agency that avoids enforcement and doesn't always look at what's in the best interests of the miners. I believe some of the proposals in this rule speak specifically to that, and I would like to go into that in a minute. Ron, as you spoke I started making a few notes. Your diagram showed -- in fact, the one on the screen now -- a proposed approach. Now, I believe what you're going to hear today, and I don't think I disagree that that's MSHA proposed approach. That lays it out, but it's what's not up on that screen. It's what MSHA's proposal doesn't do. It's the many areas that you turn a deaf ear to the reports that you commissioned to have done, the recommendations that came forth from those experts studying the problem in detail, not just popping in and out for an appearance, but studying it, giving it thoughtfulness, identifying the problems and searching for a solution. Those are the things that I view that's missing from this proposal. It's the pages and pages of transcripts of testimony, of discussions and intent between panel members that's missing from today's proposal. I view that even though all that was commissioned, all that was done and all that was finalized, MSHA still went of on a path of their own saying disregard what our past group has said. Disregard what our advisory committee said. We've got a better solution. I believe with all my heart that you're wrong; that your solution will not solve the problems identified by the miners and discussed by the panels and the committees over the years. Ron, your demonstration pointed out effectiveness of plans; that 60 percent of the average production is currently required, that under the proposal higher than average production. I personally believe that's a play on words. The question must then be asked how much higher because I know, and I believe everybody on this panel knows, that it's nowhere close to the percentage suggested by the advisory committee. In my frustrations last night at 2:00 a.m., I decided just to go back to the basics. By no means have I read enough or am I smart enough to talk a great deal about each and every one of these recommendations, but I am going to touch on some, and I'm going to go down the list. It's Section 6, Statement of Committee Recommendations, found in the advisory committee report. Recommendation No. 1. MSHA should consider lowering the level of allowable exposure to coal mine dust. Any reduction in the level should include a phase in period to allow allocation of sufficient resources to a compliant effort. In the interim, the operators, MSHA and miners should develop a comprehensive program to assure compliance with the current permissible exposure level. This effort should include at least targeted compliance efforts, sharing of documented exposure for reduction approaches, e.g., increased water sprays, scrubbers on continuous miners, dust control plan parameters and increased good faith effort consideration in enforcement actions. When you read 72.12, it puts miners working downwind of the DO, which are required to wear PAPBs, at two times the verification limit. I believe that's four milligrams. MSHA should consider lowering the level of allowable exposure to coal mine dust. I don't know how we get from that to miners work working downwind in four milligrams. MSHA makes adjustments to the PELs to account for measurements of uncertainty. I hear MSHA's reasoning for that, but again from my perspective it's going the opposite direction of the recommendation. I believe both of those are just examples of where MSHA has turned a deaf ear to what's in the records. Recommendation No. 4. Environmental control measures should continue to be the primary means of maintaining respirable dust levels in the mine atmosphere in the active workings in compliance. Respiratory protective equipment should not replace these control measures, but should continue to be provided to miners until environmental controls are implemented that are capable of maintaining the respirable dust levels in compliance. Administrative controls should only be utilized in situations similar to respiratory controls as interim control measures while environmental controls are being installed. Again, 72.12 allows use of PAPRs to supplement engineering controls. 72.14 uses language like all feasible engineering controls. I know I've heard about this panel of experts that's going to be assisting you, Marvin, in making that decision on when that's approved, but for the life of me I'm going to say it like it is. I have absolutely no faith that that panel of experts is going to make the right decision. I come from Alabama. I know we have the most grindability coal in the nation, the highest air velocities, and you all know where our long walls was and you know where are long walls are at today. I've seen teams of management and labor go overseas to the manufacturers of long walls and implement engineering controls that Tom Wilson never thought of and I have no assurance that the panel of experts will think of that not only reduce dust levels on their long walls, but allowed them to operate those long walls at a reduced standard of one milligram and be in compliance. I've seen other long walls where a few years back, and you all know I was screaming. I was pushing every button I could push to turn things around. Long walls that had eight milligrams on them. These are long walls that are producing the highest grindability coal in the nation under the highest air velocities. It was not uncommon to have one milligram coming in at the headgate and eight milligrams leaving at the tailgate. We was all called into a room and gave an ultimatum. Either give us airstream helmets or we're going to shut these long walls down. You know what the UMWA did. There's no airstream helmets introduced, and those dust levels, because of the engineering controls that came down, engineering controls that MSHA top personnel traveled to Alabama to see. Now, in my mind I just gave you some examples of the worst case scenarios, and because of the engineering controls and a lot of hard effort by everybody those dust levels came down. I believe in this case MSHA is trying to take the easy way out. They know it can be done. They've seen it done. They know the advisory committee recommended against airstream helmets replacing engineering controls, but under this proposed rule we're saying there's going to be occasions where the administrator and his panel of experts need to go the opposite direction with this. I strongly disagree. 72.14, like I mentioned, uses language like all feasible engineering controls. What are all these feasible engineering controls? What the hell is feasible? I think you know sitting here today the argument that's going to be presented as to what is feasible and what's not. I've heard it for years. 72.14 also states continue to look for improvements that you can make. I've heard those arguments for years. We've looked. That scrubber is too big, or that scrubber is too small, when the bottom line was they just didn't want to install a scrubber. It also uses language like implement feasible solutions. With all that said, I have no confidence that this system is going to turn us any direction but backwards. Recommendation No. 6. During this verification visit, miners and their representatives should have the same paid 103(f) walk around rights as they do under MSHA inspections. I stated earlier by no means did I finish reading those transcripts word for word, but I did get far enough to review the total conversation between committee members on notified visits. The problem was perceived and detected early back in 1996 by the operators that once MSHA notifies of a visit it cannot be considered an inspection, and, therefore, they was not obligated to pay 103(f) walk around rights. It's in the record. The complete discussion is in the record, and after that complete discussion the advisory committee comes out with Recommendation No. 6, the advisory committee that you formed, you appointed and selected to study the problem and come up with a solution. Now, if there's no other example that leads you to how did Tom Wilson form his opinion that MSHA turned a deaf ear to those parts they didn't like or didn't support, I think that one should point pretty clear to it. Recommendation No. 8. MSHA should complete research in consultation with outer agencies such as NIOSH to study the relation between -- I have to apologize; the pages are starting to blur -- indices collected from continuous monitors and the traditional methods of assessing exposure to respirable dust when these different methods are applied to the functions of hazards surveillance, as well as developing other potential uses of continuous monitoring data; for example, compliance activity. Where is it? One brief little sentence? The advisory committee clearly recognized that part of the solution to the total pie approach of fixing the problem was continuous monitoring. I can't say that my opinion represents all the miners here, but my opinion is MSHA, with their one, brief little statement about continuous monitoring, all but put the knife in the back of continuous monitoring. It continues on. Once the technology for continuous dust monitors has been verified, these monitors should be broadly applied in conjunction with other sampling methods for surveillance and determination of dust control at all MMUs and other locations at high risk of elevated dust exposure. Once verified as reliable, as in (1) above, MSHA should use continuous monitored data for assessing operator compliance efforts and controlling miner exposure and should continue use of continuous monitored data directly in compliance. MSHA should take whatever action possible to expedite the development and field testing of a continuous personal monitor to serve a variety of purposes, among them identifying sources and levels of exposure to respirable dust and, as appropriate, for compliance. Again, I feel MSHA has failed the coal miner. Machine mounted continuous monitors is just briefly mentioned in this package, and we all know that the personal wearable continuous monitor that MSHA went after to design is not worth refinement. Recommendation No. 15. MSHA reliance on dust sampling for compliance should be based on the appropriate balance of personal, occupational and environmental sampling. Some of the comments here will also apply in Recommendation No. 16. I don't believe MSHA went after that proper balance as Recommendation No. 15 speaks to. I believe MSHA looked at, and the term was used to me last week and I immediately wrote it down because it struck a chord with me as being the truth. I believe MSHA looked at the sampling burden on themselves; not on the health, what was the best for the health of the miners, but again on the sampling burden. When MSHA currently does bimonthlies, what percentage of production do they require for a sample to be valid? I believe it's 60 percent. MR. SCHELL: Of the average. MR. WILSON: Of the average. And under the rules what would it be? MR. SCHELL: It would be roughly 70, the 70th percentile, so it would be significantly above the average. Rather than 60 percent of the average, it would be significantly above. MALE VOICE: Use the mike, please. MR. SCHELL: I'm sorry. I'm sorry. Tom, I'm sorry. You're asking about compliance sampling. Compliance sampling would still be what it is today, which is 60 percent of the average. MR. WILSON: The same. MR. SCHELL: What I was referring to, and this is a bad microphone. Are you hearing anything at all back there? What I was referring to was above the average, the verification. Tom, that is an improvement over what the operators do now. As you know, they use 50 percent. MR. WILSON: Ron, as you know, it's far under what was recommended by the advisory committee. MR. SCHELL: Tom, I honestly don't remember what the advisory committee recommended for compliance sampling. Clearly they recommended in verification sampling that it should be near the upper limits of production, and that's why upon verification we went significantly above the average. MR. WILSON: You use words like significantly. 70.2(a)(8) defines verification production levels, VPL, as the tenth high production level recorded in the most recent 30 production shifts. I've heard numbers that that calculates out to 67 percent. You just used 70 percent. I again believe that it's far less than what the advisory committee spoke to, and I believe 16 gets into it even further. MSHA should adjust the PELs to account for extended work weeks. MSHA should develop a formal targeting mechanism for more frequent sampling of mining sections, mining units and operators found to have a history of non- compliance with the respirable dust standards or sampling procedures. MSHA should explore innovative ways to enhance its presence in mines for compliance sampling. (b), The committee believes that any MSHA resource constraints should be overcome by mine operator support for MSHA compliance sampling. The committee recommends that to the degree that MSHA's resources cannot serve the objective identified, resource constraints should be overcome by mine operator funding for such incremental MSHA compliance sampling. 16(c), The committee considers it a high priority that MSHA take full responsibility for all compliance sampling at a level which assures representative samples of respirable dust exposure under usual conditions of work. In this regard, MSHA should explore all possible means to secure adequate resources to achieve this end without adverse impact on the remainder of the agency's resources and responsibilities. Compliance sampling should be carried out at a number and frequency at least at the level currently required of the operators and MSHA. The miners' representatives would be afforded the opportunity to participate in these inspection activities as provided in Section 103(f) of the Mine Act. Operator compliance sampling in the interim should continue with substantial improvements to increase credibility of the program based on the committee's recommendation. (f), MSHA should increase the number of samples collected by the agency to determine compliance with respirable dust standards. MSHA should place major emphasis on the use of personal monitoring for determining compliance with PELs. However, MSHA should continue the practice of designated occupational sampling for determining non- compliance. (e), MSHA should make no upward adjustments to the PELs to account for measurement uncertainty. (g), Mine operators should continue to measure exposure to respirable dust for DOs, DWPs and DA compliance sampling as provided in 30 CFR 71 and 90. Additionally, mine operators should sample as part of plan verification operator sampling. (i), Samples taken to determine non-compliance should be taken when production is sufficiently close to the noraml production shift. The production level should be 90 percent of the average production of the last 30 production shifts, and MSHA should require the mine operator to maintain the appropriate records. (j), MSHA should adjust the PELs to account for extended work shifts. Again, when you look at that language, you look at the transcript that supports that language, I do not believe your rule, proposed rule, follows those recommendations. Recommendation 17. Continuous monitors for dust control parameters should be utilized to evaluate and assess the quality of dust control measure as part of mine respirable dust control plans. And 19, Recommendation No. 19. Again, as I mentioned earlier, if there's any doubt how Tom Wilson formed his opinion that MSHA went off on their own path by trying to address parts of the problem and failed to look at the whole problem and the whole solution, this is one of the clearest examples that I can draw to. In an earlier recommendation we already heard the committee's recommendation on 103(f) walk arounds during plan verifications. This is Recommendation No. 19(a). Miners' participation in the interim operator dust sampling program should be increased to provide assurances that a credible and effective dust sampling program is in place. To that end, miners at each mine should select designated representatives who are employed at that mine for compliance sampling. Miners designated as representatives of the miners should be afforded the opportunity to participate in all aspects of respirable dust sampling for compliance at the mine. That participation would include protection against loss of pay as provided under Section 103(f) of the federal Mine Act. 19(b), Miners' representatives should have a right to participate in dust sampling activities that would be carried out by the employer for verification of dust control plans at no loss of pay. Miners' representatives should also have a right to participate in any activities involving any handling of continuous dust monitoring devices or the extraction of data from continuous dust monitoring devices without loss of pay. 19(c), Miners' representatives should receive training and certification to conduct respirable dust sampling paid by the employer. Miners' representatives should be afforded the opportunity without loss of pay from the mine operator to participate in the training of the miners. As stated earlier, if you review the transcripts of the advisory committee, the discussion between the committee members, recognize that they foreseen the problem back in 1996. It was addressed by the operators then. The proposal simply doesn't address it. MSHA has skirted the issues, again I believe took an easy route and failed to look at the whole problem and the whole solution. Today you're going to hear probably in excess of 60 miners that I'm sure will give their examples and lay the case out far better than I can, but I echo the message that Joe stated earlier. You have failed to follow the committee's recommendations. The proposals are flawed. Go back to the drawing board and fix these proposed rules. Thank you. (Applause.) MR. SCHELL: Thanks, Tom. Just a couple comments. Tom, I would like to just clarify one point. I'm not trying to be argumentative here. I'm trying to explain why we did what we did so you'll understand. You still certainly have a right to object to it. One of the concerns I think that we all agree with is the impact that averaging multiple samples has on the protection of miners. You can go out, and you can sample and take five samples, and you can get a 3.5, a 4.1, and then you come in with 1.0 or .8 or whatever else. You add them all up and you divide them, and if they come below 2.1 under the current system everybody is okay. They're not okay. One of those miners is exposed to three milligrams. We've done actual cases where miners have been exposed to four milligrams of dust, and when you average it we say the miner is okay because you dilute the high exposures with the low exposures. What we're talking about is going to single samples, so no more do you get the 4.5s, the 3.5s. The reason that we have proposed going to citing at 2.33 is a legal reason, and that reason simply is that the Secretary of Labor bears the burden legally if there's a contest of proving that there was a violation. I'm not a mathematician, but if we cite 2.0 or 2.1, and I think Dr. Weeks will probably address this. There's about a 50/50 chance that there was a violation, there was a violation of the standard or there wasn't. We have problems sustaining before a Judge that there was a violation of 2.0, a 50/50 chance. If we cite at 2.33, we have or we can statistically prove a very high confidence level that that miner was overexposed. The point I want to make is the great advantage to the miner in citing on single samples. We don't have that many between the range of 2.1 and 2.33. The great advantage to the miner again is using single sampling. I can appreciate you can be concerned that we're not citing at 2.0, I wanted you to understand that we're doing it for legal reasons. Again, the great advantage to the miner is using single sample measurements and looking at every sample and not allowing them to be averaged. MR. NICHOLS: Okay. Daryl Dewberry will be up next, but let's break until 10:30. Daryl, if you could be back and ready to go at 10:30. (Whereupon, a short recess was taken.) MR. NICHOLS: Okay, Daryl. Go ahead. MR. DEWBERRY: Thank you, sir. My name is Daryl Dewberry, D-A-R-Y-L, D-E-W-B-E-R-R-Y. Before I make my presentation, I think that I need to get Joe to come back to the mike to straighten out something or rebut something that Ron had stated. At this time, I would yield to Joe Main. MR. MAIN: Thank you, Daryl. As we go through this, I'm not going to be interrupting. I'm going to try to wait until the end, but I think this is such an important issue, Ron, that people need to understand what's really going here with the dust exposure levels. I understand the position MSHA has taken with regard to they jacked up to two milligrams and 2.23 for the legal issue. That may be all well and good if you want to wed yourself to saying that you want to use two as a base. I'd like to introduce into the record, and I think there's enough to go around, a document. I want to introduce into the record a document that was published in the Federal Register on April 24, 2000, by MSHA. I don't want to add a lot more confusion to this whole debate over dust levels. Not that I'm going to; I think the MSHA already has. What it is is a notice of potential rule making by MSHA, and what it says is that the 1996 Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis Amongst Coal Miners recommended that we consider lowering the dust permissible exposure limit, PEL. In 1995, the National Institute for Occupation Safety and Health issued a criteria document in which they recommended that the respirable dust level or dust PEL be cut in half. We're considering rule making to lower the dust PEL because miners continue to be at risk of developing dust condition occupation lung disease. Now, for the record I would like to say that on April 24, 2000, less than three months before MSHA issued this proposed rule, they put out an announcement that they were considering cutting the PEL in half, which means two would be one as I read it, and that was consistent with what the NIOSH criteria document is. Now we sit here, and we have a proposal on the heels of this announcement saying we're raising up the PELs to actually be an exposure level of 2.3 and 1.6, and a lot of operators will go from two milligrams to four milligrams. I'll tell you, if you guys haven't left me totally confused as to where the agency is at. I mean, I don't know what any miner or what any of us should think, but I think the agency on one hand issuing a public notice saying we're considering going to one milligram and then having a proposal that increases these across the board is outrageous. It's outrageous for government policy to do that. Secondly, with regard to the 2.3, if MSHA wanted to have a two milligram standard they could have followed the recommendation of the advisory committee and lowered the dust standard. They could have followed their own notice and lowered the darn thing down to where they ended up with the two milligram standard if they chose to do that. The agency is thinking -- I'm not sure exactly what the heck the agency is thinking, to be honest with you, given the fact that this proposal comes out in April and we have one in July that goes completely in a different direction. I understand the legal argument there, but I don't think it's fair in the context of what has been placed on the record, the demands for lowering the standard, the agency's own position as noticed in April, 2000, of considering cutting the standard in half. I don't think I'm the only one that's totally confused in this room about where MSHA is at on dust standards in this country. (Applause.) MR. NICHOLS: Thanks, Jim. MR. MAIN: Okay. MR. DEWBERRY: As I stated earlier, my name is Daryl Dewberry. I am the international executive board member for District 20, which encompasses Alabama, Mississippi, Georgia, Florida, South Carolina, North Carolina, Tennessee, Virginia and eastern Kentucky. With that said, I welcome each and every one of you to District 20, United Mine Workers of America. I'll give you a little background about myself. I'm going on my third term as international executive board member. I've been in that position since 1993. Prior to that I was a District 20 executive board member from 1985 to 1993. My duties are to represent the miners in all phases of their problems, such as arbitration, mediation, litigation and resolution of their problems and negotiate their collective bargaining agreements. Prior to that I was a local union president, 2397. I served as the chair of the safety committee, served on the mine committee, compact committee and organizing committee. My mining experience is I went to work at North River Energy in 1975, which was Republic Steel then -- it's P&M Coal Company now -- and then on to underground development sinking the shafts at Jim Walter Resources, a hard rock miner. From there I went to Mulville Coal Company, from there to Jim Walter Resources No. 7 Mine. I left No. 7 Mine and went to work for the district as a district rep. I've held the classifications of a miner operator. Mostly that's what I was in my tenure employment there. I've been a fireball, shot fireman, first class welder, pumper. Prior to that I was a journeyman ironworker. I'm registered with the State of Alabama as a certified competent mine foreman since October of 1981. My certificate number is 5284. I also served on the state board of examiners, which was appointed by the Governor of the State of Alabama. That's a state mining board of examiners. I'm also certified with MSHA in dust sampling. A few weeks ago, as a matter of fact on the morning of July 7, I started my day like most mornings. I put on a pot of coffee, and I went out to get the newspaper. I opened it up, and right on the very front page -- let me get the right one here -- it says Rules Aimed At Protecting Coal Miners. It goes on to state, "After a lawsuit for United Mine Workers of America, federal officials have proposed new rules to keep miners from developing black lung disease." I instantly started wondering and thinking is this true? I read on into the article and saw quotes by Davitt McAteer, the Assistant Secretary of Labor for Mine Health and Safety. He was singing the praises of the proposal. I saw quotes by Bruce Watson, the vice-president of health and safety for the National Mining Association that was packaged in that article in a way that appeared to be endorsed and a sanction of the United Mine Workers of America. But guess what I didn't find? I didn't find in that article any quotes from my great president, Cecil E. Roberts. Even in the early morning I found it very odd that this front page article, which gave the appearance of a UMWA picture, that it had quotes by everyone but the plaintiffs in that original lawsuit, and that was United Mine Workers of America. I really started wondering was Davitt McAteer and MSHA trying to mislead the public by this release? One thing that really seemed odd to me was what method, what miracle, had they come up with to eliminate black lung disease in the mining industry? I wanted to see this. My great union has been good to me. I've been to the Georgia Main Center for Labor Studies. I've arbitrated over 400 cases in my tenure of business, and I couldn't believe that we had come up with some type of miracle that would eliminate black lung disease in the coal industry. Well, I couldn't wait to get my hands on the proposal. I contacted Tom Wilson immediately. He is a staff employee in District 20 over health and safety. I asked him what about it? He said I don't know. I haven't got my hands on it yet. I said I want to see this miracle. I accompanied Tom Wilson that day. He got some information over the Internet. We went to the district office, the MSHA district office, and obtained the proposals. I immediately went back, had my secretary get me a copy right off the top of those proposals, those new rules, and I immediately started reading and reviewing. I've seen some ambiguous rules before in my life, and I call myself at least an average educated man, but the ambiguous language and, in my opinion, in some cases deceptive language, the discretionary proposals of some of the rules went over my head. At that point, and even in your own quotes of the proposal it refers back to the formulas. I know that we've got John, who's a mathematician, back there. I've also got a cousin that's a CPA. Two and two in my book equals four. It always has, but some of the math we can't even get experts to agree on on the formulas. I'm speaking of the quartz and sampling. I went back to the proposed rules or the advisory committee's proposed rules, and I reviewed those 20 rules. They're simple. They're unambiguous. They have a clear definition of what kind of conclusion that MSHA should draw to make a rule. Your rules that are proposed rules that you have addressed in no way, shape, form or fashion come close. They do in some case. The single sample, and we appreciate that. That's long overdue. However, I think we missed the benchmark as far as the hours worked. April 1 is a holiday for the United Mine Workers. It's supposed to be the eight hour work day. You can ask any active member in this room. We don't have an eight hour work day. Most people change out at the faces. They call it a hot seat swap out, and they work in general ten hours a day. Not just those face people, but the outby people, too, that are on these belt headers, which are going to be samples one time per year. That is absurd. After reading the proposals, and I earlier stated that I was proud to welcome everybody to District 20, but I'm absolutely appalled at the rules or the proposed rules that we're asked to be considered at this hearing today unless I'm wrong in reading, and I'm not because I've got the opinions of every safety committee in my district, the people that I rely on for knowledge. As Tom stated, we have worked those people to death since these rules came out. They spent countless hours reading and re-reading. I guess it's like anything else. You'll come up with a different conclusion after you read it again and again. However, it comes back to the same bases. The point of the advisory commission on their 20 rules that they recommended were missed by MSHA. As far as the rules and the advisory committee's recommendation, as I stated, the ambiguous discretionary rules that leave it up to and put the burden really on an MSHA inspector. Let me say that I have personal friends that are MSHA inspectors and glad to see some of them. However, I don't want to put this burden on them. They need it in black and white rather than to make a judgement call, and they do in most cases have to do that, but as far as leaving the discretion to one individual MSHA inspector as to whether or not to write a citation or what, I can't understand putting this burden on him. I think that the law should be clear. There's too much room for ambiguous language for problems to be when we wind up going with an ALJ. You all know. I understand your 2.33. If it's two percent, leave it at two percent. As a matter of fact, I've done a lot of reviewing on this thing. I went back to the basis for this right here. I compared Part 90, and that's one of my -- let me say this. That's a pet peeve with me because we've lost over 18,000 people to mine related respiratory diseases over the years. I've got a personal friend that hired in at Jim Walters 7, Sammy Walter. He is my age, 49, or he would have been my age. However, he passed away about three years ago from this disease. Another young man named Scott Capell, who was removed from the coal mines at Jim Walter No. 7 Mine at 33 years of age because he had black lung. I guess that's why Tom used the word frustrated. I use the word angry, mad, because I've seen brothers fall to this disease. Don Hood, a personal friend of mine, can't walk across this room. He's contracted it. He didn't think a thing about it at the time working downwind or being involved or around it. It didn't have an immediate impact on him other than choking to death right then. Now he's choking to death in fresh air. He walks around with an oxygen bottle behind him. The dust is still killing people today, and the miracle that MSHA has proposed in my opinion won't do it. There are some advances such as the single shift sample, but 480 minutes is not what these people work. It should be tied to their work schedule from portal to portal. If the equipment won't do it, we have the technology and the ability to change it, to monitor the environment that that person works in. If discretion is going to be used, use the discretion of when he gets on the man bus and gets to the work section. Start it then. In general, we've probably got about 30 minutes to the face, so you're talking about an hour off of ten, so instead of 480 minutes they need to be at least monitored nine hours, so you would have to adopt that employee working on the face, his specific time that he's worked. I'm sorry, but the MSHA inspector needs to stay down there. Six samples a year? All we're doing is giving them an average opportunity of missing the boat. All they've got to be right is six times out of the year. The rest of the time they can be wrong unless you catch them, and then we'll go back to an abatement situation. Let's get back to Part 90 miner sampling. Nowhere in this, and I would take you to page 32 through 35 of the '77 Act. This is promulgated -- I mean, this is the Act itself as enacted by the Congress, Senators and House of Representatives and signed into law. It specifically deals with the standards. I don't see anywhere in here, and I've read. I know that in the beginning we allowed up to at some places never to exceed 4.5 milligrams. It goes on to state, however, at no time would this be extended let's say past 18 months, and it goes on with the waiver. It even addresses on page 34 effective three years after the date of this Act we would go at two, not 2.33, and I understand you're trying to give yourself a little buffer there because these operators are going to litigate it. They're going to try to challenge your ability to prove that they've got two milligrams. I think you've got a mandate by the Congress. I think that it's not discretionary on your part. We didn't ask you to legislate the law. We didn't ask you to be legislators. We asked you to enforce what Congress has guaranteed us as citizens of this great country. I would also go on to page 36. I see the brother back there with the airstream helmet on, and I know that he'll get into some testimony on that, but I would refer you to page 36. It says use of respirators shall not be substituted for environmental control measures in the active workings. Each operator shall maintain a supply of respirator equipment adequate to deal with the occurrence of the concentrations of respirable dust in the mine atmosphere in excess of the levels required to be maintained under this Act. Gentlemen, I would ask you all to consider the proposals and the recommendations of the committee that was formed. I mean, you all put this committee together. If you're going to throw good money out there to get their advice, and let me say that I have the utmost confidence in Joe Main and Dr. Weeks both. I know what Congress intended. Congress intended for MSHA not to assist in coal production or the monetary value of coal. It guaranteed us right on the front page the protection for its most important resources. That's the coal miner. I think we've missed the benchmark, even though we have raised some pertinent issues such as single sampling, and I appreciate that. That's been a long sought after mechanism to try to curtail dust, but this won't do it. I would ask that this committee, this panel, go back to the drawing board, go back and read and consider the measures of the advisory committee. They've got some good stuff in there. We have technology today. I mean, I'd say 20 years ago you'd take -- I'll give you an example. The Jim Walter mines are over 2,000 foot deep, most of them, varied from I'd say 1,800 to 2,200. They deliver somewhere around 36,000,000 cubic foot of methane in a 24 hour period. I had the very first ignition at Jim Walter No. 7 Mine and velocities of greater than 30,000 cubic foot of air over a continuous miner. I've been on a long wall when it took 100,000 cubic foot of air off the face, and then it feels like you're working in a sand storm with the dust. Again, I don't know if the airstream helmets are more or less to keep the dust out of your face and eyes because it pits you. It feels just like somebody has a sand blasting hose blowing you in the face at times. What I would appreciate, and I guess what would make you I guess more sympathetic, more in tune with what these people have to work under, is on a normal day, and I'm not asking much, go spend the entire day with these panel members on that long wall face or out by one of the belt headers or deal directly with one of these people that have black lung. Their life is already shortened. To expose them to 1.26 or anything greater than one milligram and, you know, the standard -- there's quartz in the Jim Walter mines in the Blue Creek seam and Shell Creek. It's on the Blue Creek seam in Alabama. I have personal knowledge of what's taken place there, and that's why I'm -- I'm not shorting any of them, Pittston or any other operations anywhere else. They have similar problems, and they will address those specifically, but I want you to go back to the drawing board. This, what we've got right now, won't work. I'd appreciate, and I guess I probably got angry right out of the chute when that proposal, and I don't know what I did with it, came out for doing away with black lung. I don't know if that was a typo. It indicated that it was a quote from MSHA. Fellows, what you all got planned will not do away with black lung disease or coal related diseases as far as respiratory systems are concerned. Thank you. MR. NICHOLS: Do you think those Alabama long walls are in compliance day after day after day downwind of the shear operator? MR. DEWBERRY: Now, sir, but I'll say this. At one time the operators screamed that they couldn't live with those 60 samplings. In most cases, they beg for it now. The technology is there. I don't want to steal the thunder from any people, but we've got committees that have worked on a collaborative effort with the operators that have gotten the long wall standard to one percent, and they'll elaborate on that. The technology is there. When those operators are required to do it, and we're talking 33 samples a year. That's all they've got to dodge. You've got -- let me tell you what you've done for those operators, and I know some are here today. You've given them the opportunity. You've lifted the burden of proof out of dust problems. They're no longer going to be accountable for that. We pushed for that. However, they've only got six shots a year that they've got to dodge -- that's it -- instead of 33. MR. NICHOLS: Let's back up there a minute. Would you not agree that a good plan that has been verified to work at a high production level gives a lot of people the opportunity to look on a daily basis to see that compliance is going to be achieved, that the mine operator, the miner, the inspector, that those controls are in place on a daily basis, and they've been demonstrated to work to achieve compliance for the two milligram standard? MR. DEWBERRY: I would agree that if we leave it at two milligram standard and if there is verification that they're in compliance -- not just six times per year, but on a normal production day and I'd say within the parameters of what the advisory committee had recommended; not 68 percent, but at least, you know, 90 percent or something like that -- this is what these people work under is the 90 percent when they're sampled there under there every day not for 480 minutes, but for nine, nine and a half hours, whatever their work day may be. Yes, sir, I think that -- and I have confidence in the technology. Nobody ever dreamed that we would be able to mine coal in 36,000,000 cubic foot in a 24 hour period of methane, that deliberation. The dust levels I've seen? I've worked in Wind Gone running a continuous miner trying to allay the dust when it would choke you, the thick atmospheric -- the dust wasn't as bad as the Wind Gone, the wetting agent. The same is true on these long walls, but there is technology there, and that's what we need to hold them to the letter of the law and the promise of Congress and the '77 Act and make them have the controls necessary to maintain it at that level. I think in line with what you're saying, if we had verified controls, how are you going to verify it if you don't check it but six times per year? I mean, you're talking bimonthly. What happens to the rest of the time? Are we going to set up I guess a preliminary investigation to get them in line? I don't have a problem with checking them at random or whatever, but these operators know when the schedules come around, especially if you've just got six times. They gear up for it. MR. NICHOLS: Well, bimonthly is intended to be a minimum. There are other times we choose to sample. MR. DEWBERRY: I understand that, and I read that, but let me assure you, and you and I both know the budget cuts, the money that you all have had to work with as far as an agency. We'd like to see you get all the money you could to continue on, but it's not there. In some cases, we would like to have I know six is a minimum on the point, but I think that the operators should be under the gun, so to speak, you know. The advisory commission had recommended continuous monitoring. We monitored CO continuously. They had the technology and the ability to monitor the dust, I mean, on a continuous basis. That would give us a true reading of what our people were exposed to. I don't know if you've been at any black lung hearings where somebody has contracted black lung where they've already died and they've cut them open and they've said yes, he had it and still fighting to get it. The person is deceased, but his family, you know, they're entitled to black lung. These people are dying every day from it. I know. I've got some close friends, as I stated, that I worked with that have passed on from this disease. MR. NICHOLS: I don't disagree, but Davitt McAteer has put a lot of emphasis on trying to identify black lung with his pre-test x-ray program, and then a package of dust rules here that we can agree to disagree on, but I can tell you he's trying to get at the problem. Now, with all the discussion about the four milligram standard, the dust standard being raised on the long wall, that's not true. I mean, we're talking about some number of people working downwind where the problems cannot be engineered away. If there's engineering controls in place that are taking care of the problem, companies need not ask for the use of airstream helmets. The four milligrams is the protection factor for that helmet. That's not to say that people are going to be allowed to go up the standard to four milligrams. What we're trying to do is identify any situation where there's some protection for the miner, either engineering controls or, in the small case, some consideration for these airstream helmets. MR. DEWBERRY: In addressing that, I could understand this plea for giving that much leeway if our industry was just developing. Long walls has been in the mines since 1978 in Alabama. When they have to, they comply. When they're put under the gun, I've seen so many times these operators come up with a brilliant idea along with the union to abate a violation. That's what we need to do. I'm not saying fine our operators out of business. We want them to operate as much as anyone else. All I'm saying is that we need -- we got the laws here. I mean, it's clear in here to give these allowances or waivers, and it's just for an 18 month period. In some cases it is extended where there's certain mitigating circumstances, but I don't think anybody in here, unless you go back to the law, has the authority to get in conflict with what this Act is proposing. It guarantees -- the way I read it as a common coal miner, it guarantees me that I ain't going to have to work in above two milligrams. As a Part 90 miner, I won't have to work above one milligram and not with any two and two makes five and a half equations. I know it's got allowances for quartz and it addresses it under 202. The Part 90 and the Federal Register addresses it also. I think that we need to go back to the drawing board and take the advisory committee's recommendations in place and take this Act. Maybe we need to go back and read it and what its intent is and go from there. Let me say that I have personally contacted some of the legislators in Alabama and brought this to their attention. I would just ask that you do go back to the drawing board and take the advisory committee's recommendations and let's come up with something. We appreciate what gains we did make, or I do, on behalf of the members here in District 20. However, they're not enough. There needs to be single shift sampling. That's a blessing because, I guess, if a miner is exposed to three percent on one day, don't take the five samples and then say well, we've got you down to .9. You're okay. I mean, that's ridiculous. If you're in that environment you're in that environment, and I've never known of one day where that dust has helped anybody. It's a killer every day that you're in it. What you need to do is go down to one of the coals mines, especially one of these with a high velocity of air, and get on that long wall face and hang in there all day. Do you know what? You'll come out with a different feeling. You'll say, number one, I don't want to put one of those airstream helmets on. I want to wear me some snow goggles to keep it out of my eyes and wear a bandanna around my face or a respirator even upwind of the long wall. Some if the best things that ever happen before we starting washing these shields down. That cut down a lot of dust even engineering devices to put sprays on these shears, on these shields, would help tremendously. At that point, I think some of these operators thought well, we can live with this 060 sampling now and wanted it back, but that's a different story. We're here to deal with the specifics of your regs and your proposals. I'll say one thing. You all put together one heck of a package because I have read and read and read and went back again, and I know that the majority of these people went back and read it again. You know, I call myself being pretty good at going back and reading collective bargaining agreements because I negotiate them and pick the ifs and ands and buts out of it and try to get a concise meaning or write a memorandum of understanding to it on exactly what the meaning is. If this was a collective bargaining agreement, your proposals, we'd be back writing memorandums of understanding every day because the operator don't think the way I do. The operator looks for ways to get around it, and I look for ways to enforce it. MSHA is caught right in the middle to try to please both sides. I'm going to tell you. Don't put this on an MSHA inspector or CMI because he'll have a heck of a task to do every day. He's already got one in the first place. Thank you. MR. NICHOLS: Thank you, Daryl. (Applause.) MR. NICHOLS: The next presenter will be Bolts Willis of the UMWA. MR. W. WILLIS: Thank you, Mr. Chairman, for having us speak at this meeting today. My name is William Bolts Willis, W-I-L-L-I-A-M, B-O-L-T-S, W-I-L-L-I-S, Box 126, Pratt, P-R-A-T-T, West Virginia 25162. I'm the chairman of the mine health and safety committee for Local Union 8843 located at Cannelton, West Virginia. We have a couple of distinctions at our Cannelton mines. We've been there -- not me in particular, but we've been there for over 100 years in continuous operation. We had the first long wall in the United States of America. We had the first mountaintop removal mine in the State of West Virginia, and we're still operating today and producing more coal with less people than ever I think anyone could imagine some ten or 15 years ago. Some of you on the panel have known me for many years either while I was working for the MWA International Safety Division and also for the State of West Virginia as Assistant Commissioner of the Department of Energy. At our local union we have three underground mines, one four section mine, one one section, one tunnel mine and one strip mine and a large preparation plant complex. As I've stated earlier, some of you know me personally, so I will address you as my contemporaries as so you are. In 1969, I started working underground at the No. 8 mine at Cannelton and worked at several of our other mines at the same general location since we have a common seniority system where I worked. I've worked in low coal, 28 inches; medium coal, 40 inches; and high coal up to 12 feet, as well as working on the surface. I've worked on conventional sections, Wilcox sections, continuous miner sections and long will mine operations. In all these areas, a common factor is present. Coal dust. We're here today to respond to these proposed rules to protect miners, or us, from excessive coal mine dust. I must say from reading those rules, it has been difficult to understand what is really being proposed. All 118 pages, written not to what I learned at the Mine Academy over 20 years ago from many of know instructor Wayne Maxwell who taught creative writing. It's not clear to me in these rules, and I'm sure it's not clear to the rank and file miners. It's muddied, to say the least, in many instances. I also must say as an adjunct professor at the local university, the Institute of Technology, my students would probably have problems understanding what these rules say and how they're written and at what level they're written for comprehensive who doesn't have a college education or hasn't been trained in other areas. That's not to put down any of us miners. They's just tough to understand. I think probably everyone here would agree with that. I will just give you a few examples. If I were to enhance dust control measures, the first place I would look at it would be to sample continuously since the sampling devices to monitor dust are available and have been for the last 15 years. This type of sampling could shut off the machinery immediately when high concentrations of dust are detected. Stop period. We wouldn't have to worry about hiring hundreds of inspectors. We wouldn't have to worry about coal companies going through the frustrations of trying to figure out where and when to control the dust and those things. It would be apparent that it was happening at that time, and you probably could readily see it, as I have in testing some of these devices several years ago. Also, I would take over the program fully. That's not taking away the responsibilities, of course, of the operators, but to make the approach to sample six times per year. As some has stated already, this proposal seems to be saying that we will sample on that many occasions. If I were the operator, if I couldn't come up with a system to control dust on six dates per year with advance notice inspection on the advance time that it would take the inspector to get to the section, then I wouldn't be much of an operator not to be able to control dust on those six days. I cut the production in half and clean the scrubbers every 15 minutes, and that would be the end of it. There's no dust there. Third and last, because other people as well are going to speak on these things, as Tom has spoke on them and also Daryl spoke on them previously, other issues I have great concerns. The proposed rules will in many ways set back to the post 1969 dust control protections. May I just say that MSHA recently conducted, and I think it's been alluded to earlier either by Ron or Marvin, that the x-ray testing has been going around the United States. It's been to our mine. A good friend of mine that I worked side by side with since starting underground in 1969 -- he started in 1968. He was running a cutting machine the first shift I worked with him. He ran that cutting machine and has since run the continuous mining machine and still is a producing miner/operator today. For all these years he took the x-rays as some people encouraged him to do. He's already received 25 percent black lung payment from the State of West Virginia through the x-ray process system going through the hospitals. He found out that he had at least 25 percent disability. Lo and behold, when he got the results back from the x-ray system that MSHA had put on the property guess how much black lung he had? Goose egg. Zero. I'm telling you. I was with him last week, and I stood right besides of him. He could barely breathe, but he loves to mine coal, and he loves to run that continuous mining machine so it's pressing on me as a safety committee man and as a former representatives of the miners throughout the United States and working with many people in Alabama who have been in the mines, almost in every state, that we must be more diligent to see that we take greater steps than what has been proposed today. In closing, I took a survey last night of the miners in this room, and we were about half this size, about how many chewed tobacco or did snuff. Over half did snuff or chewed tobacco. Well, it makes me wonder not very much because I use this in illustrations when I teach at school or talking with people that are not in mining and most recently when I was in southern California about a month ago on why miners act the way they do. I'll basically go through that, and then I'll be finished. Everybody -- I guess not everyone, but a lot of people wonder why miners wear hats. You see various and sundry miners wearing a hat. I also wear a hat. Here's a hat that we used at a recent rally that says Keep the Promise. You know Doug Day, and that's sort of what we're saying here today is keep the promise, MSHA, in doing what the Act stated in reducing dust standards. The reason we wear hats, and a lot of times they even wear them in buildings, which at one time was not acceptable. My former local union president wouldn't dare let anyone wear a hat in a building in our local union meetings, much less curse. He was just totally against that. Everybody took of their hats at that time. He's passed away. He died from black lung, as well as my dad. When my dad died, prior to his dying he had a lung removed. Dr. Prevaschultz cut away that lung. He had advanced stages of black lung. Lo and behold, the death certificate said he died of cancer. It didn't say anything about black lung. So wearing the hats and sitting around like this at a ball game, and I'll make an illustration as I go away from the mike and the recorder. I'm going to be squatting in low coal. You sit around like this when you work low coal. People make fun of miners for sitting in this position. Well, I'm very comfortable sitting in this position. I can sit at a basketball game or a football game for the whole game like this. When you work low coal, you work that way every day of your life and it doesn't bother you. It's comfortable. With the other issue, how many drive pickup trucks in here? I'm one. I see a lot of hands going up. The reason a lot of us drive pickup trucks is that the roads are so bad going to the mines in eastern Kentucky and Virginia and Alabama and West Virginia that you have to have a pickup truck to get to work. So back to chewing tobacco. We know why the miners chew tobacco. If you work in a mine, you want to allay the dust. You get hooked on the tobacco, and you chew tobacco and do the snuff to keep from coughing. That's the reason. You can go around to any of the coal mines and see a lot of people chewing tobacco, but it's a stigma that's put on us as miners. People make fun of us for doing those things that it's a hazard of the occupation. So with the chewing tobacco and the dipping of snuff illustration, as I finish this we can't allow the dust that we breathe every day at work that we can do something about, and we have the facilities to prevent these things from happening. As I've stated earlier, I'm not here to condemn any of you for trying to make the system better, but please take a step back and listen to us so we can jointly make our workplace a healthy place to work. Thank you. (Applause.) MR. NICHOLS: You mentioned advance notice on the dust sampling. There is no advance nothing on compliance sampling. Also, when you were talking about staying in compliance for these six sampling shifts that the operator could cut production in half. You can't do that. I mean, the operator is going to be required to keep production records. These plans are going to be approved on the tenth highest production number, and that won't work. By today's sampling, an operator can set up ideal conditions probably and sample and they won't have any problem with operator sampling, but not under this rule. The plan is going to be verified at a high production level. We're going to have records that verify that production. There's going to be no advance notice on compliance sampling. MR. W. WILLIS: I hope that's the case, Marvin. I hope that's the case. MR. NICHOLS: That's what the rule says. MR. W. WILLIS: I know what the Act says. I know what MSHA does not. That's supposed to be the case, but I also know that many miners at our mine know every day that an inspector is going to be there before he gets there. MR. NICHOLS: Well, I would expect at some of these big mines that's an every day occurrence. I mean, our people are there about every day. MR. W. WILLIS: Well, that's before they start, Marvin. Before they start, they're still banned. I know that we have fraud in the system. I'm not saying everybody from MSHA is like that. I have a brother who's an MSHA inspector and been an inspector for over 25 years, but it really concerns me. And then another point, and thank you for clarifying that. Another point that something strange seemed to be about the hearing that they had in Morgantown, and it seems like it may be strange here today, that the operators are not giving any testimony. That kind of makes me wonder. It must be a pretty good system for them. They've not saying anything about it, and they're not complaining about it usually. As Carl Boone would note, I got ran out of a meeting one time on Wilcox Mines when I went to the Supreme Court. We basically outlawed them in the State of West Virginia. Then I came down here and gave a speech and was threatened to be killed giving that speech that day. I think Carl was called on the carpet by MSHA is what I heard for that same hearing, but it does make me wonder. It must be pretty good or we'd have a lot of people here testifying for management, that my understanding was in Morgantown there was not, and it's not giving presentations here today. It may be so. It may not be so. MR. NICHOLS: Well, the operators aren't saying that, but if you've got information on MSHA inspectors giving advance notice, I'd be most interested in that. MR. W. WILLIS: We'll talk about that more. No problem. We'll talk about that. MR. NICHOLS: Most interested. Thanks, Bolts. MR. W. WILLIS: Thank you. MR. NICHOLS: Our next presenter is Bo Willis. MR. B. WILLIS: Brother Don? MR. NICHOLS: Brother Bo? MR. B. WILLIS: I'm Bo Willis, United Mine Workers of America. That's B-O, W-I-L-L-I-S, president of Local Union 2274, United Mine Workers, District 20, Subdistrict 28, in Virginia. Two or three things I'd like to touch on. One thing you just hit one when you were talking to Bolts about advance notice. Advance notice is they may not know the day that the inspector is coming, but prior to that shift they're going to put a dust pump or whatever on a miner when he goes underground. That is advance notice because before that shift starts the mine operator knows we're being sampled. Whatever we need to do to take care of those people that day, they're going to do it. It happens. It happens every day. Another thing you brought up earlier about the dust standards being raised to 2.33 in order to go in and tell the Judge they're definitely out of compliance because it was 2.33. That's above 2.0. If you get a speeding ticket 65 and above, you're going to get a speeding ticket at 66. 2.1? You're going to get a dust violation. If two milligrams per cubic meter is the standard, then the operator should be able to go by that standard. What happens to a dust sample where we've been talking about continuous monitoring and what's available in, you know, today's technology and machine mounted sensors? I understand that there's been a little bit of problems from some of the machine mounted sensors falling apart. Well, if the technology is available to let the sensor work but the hardware fell apart because the washers weren't strong enough or the bolts weren't tight enough or whatever, you know, those things can be fixed. That technology is available. You've also got mine atmospheric monitoring systems that monitor methane, carbon monoxide, water levels, pumps, belts, carbon monoxide, dust levels. Just about anything you can think of can be monitored today through atmospheric monitoring systems. You can trend every sensor and see what it did throughout an eight hour period. You can trend it and back it up to last month. If you've got carbon monoxide problems on a belt, you get a little belt roller getting a little bit hot, you can watch what that sensor is doing, and you just about pinpoint where the roller is. As far as your dust sensors, if you've got a machine mounted dust sensor and you've got a roof bolter sitting downwind of a miner and he's bolting in the dust, well, if he backs out and says it's too dusty and MSHA comes in and says hey, how do you know it's too dusty, I can see the dust and I couldn't breathe, but you don't have any definite proof that that man is not going to lose his job because he felt like he was going to exercise his personal option to get into a safe position. You know, you've got the ability to say we'll use these dust monitors, and you can legislate it, or you can put it into your rules, and you can say we're going to go to continuous monitoring. If you get over two milligrams then you back your machine out, do something with the air, turn the miner off, let them finish bolting or whatever. These are options that you have that are available that will give that miner immediately protection. If he comes in here today and he says hey, you know, I think I'm getting too much dust. I'm going to bid a 103(g) in order to get a little bit of protection down here. I'm on this bolting cycle every day for two hours. I'm in this dust, and it's usually six to eight milligrams per cubic meter. It's pretty high if you're on the bottom side of a miner and he's cutting a little bit of rock. If you've got that ability and you don't put it in to where somebody can use it, you know, then do you know what? Why do we even bother with it? Those are some of the things that I wanted to bring up. You know, the reasons is we've got the technology to do these things. We want to try to eliminate black lung disease for coal miners, and by saying that we're going to raise the standards, we've got a gentleman wearing an airstream helmet back here. We're going to raise the standards that would be acceptable under, and I heard, you know, your talk about it a little bit earlier that if we think something is not being done we're not going to agree to let them go to four milligrams and so on. But, if you all think based on whatever your basis, you know, whatever you base your thinking, they've done everything they can do so we're going to let them go to four milligrams until they get through this bad part of their mine or they slow their production down or they can figure out a way to do something else with some other standard. During that time, this man is wearing this airstream helmet. You've got noise standards where they've got to wear ear plugs. They can't hear. If you're looking down the long wall and looking at the lights coming lack through one of these lenses, you can't see, so they're going to be blind. They can't hear, you know, and they're going to be subjected to twice the normal standards of dust for whatever period of time you all determine on a case by case basis is acceptable, so they're going to be handicapped even further, plus having their lungs at a, you know, disadvantage. You know, I'd like you all to think about that. If a person decides that they want to go in and they want to wear one of these helmets but they're still under two milligrams, you know, we can agree with that, but to say just because they want to wear those helmets we can raise the standards because we think that these helmets give a two milligram protection, you know, that's not really acceptable because the people that are making that call aren't the people that are down there having to live there, eat the dust and look at all of it. You do need to consider again, I mean, under your advisory committee they suggested the continuous monitoring. If you know you're in over two milligrams immediately and you can withdraw, you've got one minute. You're out. You can back up. They can shut the miner down, or they can do whatever, and you're protected. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: There are places where a lot of miners on their own wear airstream helmets, and we've never given any consideration to companies for engineering controls. They still have to comply with the two milligram standard. The only place we're considering a consideration is that one area downwind of the long wall shear. The next presenter will be Randy Clements, UMWA. MR. CLEMENTS: Good morning. My name is Randy Clements, R-A-N-D-Y, C-L-E-M-E-N-T-S. I'm a member of the United Mine Workers of America local 2368 where I represent 323 people. I also right now am the president of the local. I've been on the safety committee for 14 years. As we went around when we got these new proposals and talking to our members about what was going on, they proposed a question to me that I could not answer, and I would like to ask this panel where I can carry the answer back to them. Their question was to me is, and I'll put it in a nice term because if you've ever been around coal miners they don't have the best language at times, but their question to me was how many members of this panel has actually worked in the coal mines? I think that's a fair question to be asked and answered. MR. NICHOLS: I don't know how many hands you see, but we've got a lot of coal miners in the agency that we can draw from, probably 700 or 800. MR. CLEMENTS: Well, then I guess the question that was asked of me I could reply back to them that there is none that is on this panel that has worked in the coal mine. Okay. Thank you. MR. NICHOLS: You can tell them that MSHA is well represented by coal miners, though. MR. CLEMENTS: I will add that. I made this trip on this behalf to Prestonsburg, Kentucky, in order to speak at this hearing. After talking to many of the members that I represent, they wanted me to send a message up here clear that the message is in this hearing for MSHA to go back to the drawing board and make rules that will protect the coal miners, not hurt them. In the early 1990s, the miners appealed for action to reform the respirable dust program that evidence showed from operator upon operator the continued corruption in the program. The Secretary of Labor addressed the situation by an MSHA task force for respirable dust. The task force was to address three areas in particular, expanding the roles of miners in their sampling program, review the feasibility of MSHA taking over the operator sampling and work on developing continuous dust monitoring devices, which apparently these rules don't. In 1995, the Secretary of Labor chartered an official advisory committee for the purpose of recommending health and safety standards and to overhaul the troubled coal mine respirable dust program. The advisory committee was on record calling for engineering controls that specifically noted that administrative controls should not substitute for engineering controls. The UMWA has supported the advisory committee's recommendations, which are, A, attention to the respirable dust program. MSHA's proposed rules ignore the modest demands of the troubled sampling program. MSHA's proposed rules dramatically reduce the frequency of sampling, shift sampling, by 83 percent in allowing the mine operators to double the two milligram standard to four milligrams. The advisory committee called for increased compliance sampling and lowering the dust standard levels. The MSHA proposed rules make one point clear to coal miners; that the compliance dust sampling is not important. As we all know, respirable dust is a problem in the coal mines because of the development of larger equipment, bigger long wall panels. In this report, you only see pictures, as my brother here beside me will show you all pictures, of dust filters that miners today are wearing, and I want it to be noted that this long wall under the current standards is in compliance. The pictures he'll show you on one hand will be the pictures of what they're wearing, and the other one will be a single one that is unused. The Example A that he's showing you is a picture of a dust filter that was worn by a long wall helper downwind of the shear after making only one pass with the shear. Picture 2 is a filter that had been worn by two miners on the long wall. The top filter is the long wall helper that was working on the tailgate end of the long wall after three passes. The bottom filter is a long wall helper that was working no the headgate of the long wall after three passes. As you can see, there's a dramatic difference in the two. Example C is a picture of two dust filters that was worn by a miner on the long wall. Both dust filters is a long wall helper that was working on the tailgate end of the shear and had changed them out in between shifts, halfway through the shift at his lunch break. Both of them was after three passes. Example D is two filters that was worn by a miner on a long wall. Both dust filters was a long wall helper that was working on the tailgate end of the shear and had changed the filter out again during mid shift. Both of these filters is after three passes, which the majority of our long walls average about five to six passes. Example E is two dust filters that was worn by miners on the long wall. Again, both filters, these two filters, are shear operators that had changed it out at the end at his lunch break after making the top filter was three passes. The bottom filter was after two passes. Example F is a picture of three dust filters that was worn by three long wall helpers on the same day and shift. The top filter is the headgate long wall helper. The middle filter is the mid long wall helper. The bottom filter is the tailgate long wall helper. Again, I would like to reiterate these are long walls that is under the current standard plan or in compliance. Excuse me. The examples that have been shown shows the large amount of float coal dust that is distributed into the atmosphere during a normal work shift. By increasing the standard of the long wall to four milligrams, is MSHA creating at atmosphere so filled with float coal dust that it creates a disability hazard for miners to perform their work? As you recall, the advisory committee asked to lower the standard, not increase it. They also asked for more frequent sampling. I think before these new rules should go into effect there are three questions that I would like to be answered. One, how much float coal dust would have to be distributed into the atmosphere in order to obtain a two milligram or a four milligram respirable dust sample? As we all know, respirable dust is the small particles that comes from the float coal dust in the air. The second question is by MSHA allowing the dust standard to be increased to four milligrams, are they creating a greater danger for dust explosions? Three, is MSHA is creating a visibility hazard by allowing the float coal dust in the atmosphere to be increased? MSHA insists that the recommendations of the new proposed dust rules would fix the troubled dust sampling program. I would have to say in this hearing to the proposed dust rules they will become known nationwide not as the rules that protect the miners and do away with black lung, but will become known as the rules that possibly have caused a great deal of mine explosions and deaths in the coal fields. Should these new rules have been in effect when the methane ignition occurred in Willow Creek Mines in Price, Utah, here recently, not only, unfortunately, would two miners have been killed, but also it could have created a major dust explosion which could have killed everyone that was working on that owl shift. Again, I send this message from my members for MSHA to go back to the drawing board and follow the advisory committee's recommendation and protect the coal miner's rights. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Randy, do you want to submit those folders for the record? MR. CLEMENTS: I can give you a copy of the -- MR. NICHOLS: A copy of them I mean. MR. CLEMENTS: -- whole thing. MR. NICHOLS: I'll say it once more, and I won't keep coming back to it. We're not raising the dust levels to four milligrams on the long wall. Four milligrams is the protection factor for that airstream helmet that we can see here in the audience. The manufacturer of that helmet recommends a correction factor of 25, which would be two times. That would be 50. What we've said is no, that based on the studies we've got four would be a more appropriate number, but it does not mean that people are going to automatically be able to go in and for this area downwind of the shear operator and say I can have a four milligram standard. What it means is that if it can't be engineered down to two then somewhere between two and four it will be protective of the miner. I think that's about as clear as I can make it unless the panel wants to add something to that. You may not agree with that, but that's the -- you may not agree with the idea of allowing the airstream helmet, but that is what the rule is talking about. It's not talking about automatically raising the standard to four milligrams. MR. SCHELL: The only other clarification I'd like to make is if -- a big if. If a determination was made that engineering controls wouldn't control downwind of the shear operator, the high risk occupation would become the 044, the shear operator. The environment that the shear operator has to comply with, the two milligram standard, is only those people that would go downwind of the shear operator, when they were down there, that would be required to wear a PAPR or to use administrative controls. Remember, if we're using administrative controls no one would be overexposed because they'd still have to limit their exposure, so it's administrative control and PAPRs, but again only if you can't control the environment downwind of the shear operator and using administrative controls. We're not substituting administrative controls for the PAPR. MR. NICHOLS: Okay. The next presenter will be Rick Glover, UMWA. MR. GLOVER: Thank you, Marvin. My name is Rick Glover, G-L-O-V-E-R. I work for the United Mine Workers. I've been in the industry approximately 30 years. I spent 13 years actually underground, and the other 17 years I've pretty well represented the miners in southern West Virginia and also throughout the country. You know, this is probably one of the most complex proposed rules in the history that I've been following health and safety and the times that I came and had the opportunity to speak before you all. I have learned more today than I did know about the rule before I walked in here. I think we need to ask ourselves, because it's been talked about, why are there so much discrepancy between the federal advisory committee, and I would assume that this group had a lot of impact on writing these proposed rules. I would assume that. If not, correct me on that. Is that pretty well accurate? MS. KUEMPEL: I would like to add one clarification, the clarification that NIOSH is on the single shift sample rule. The second one dealing with the dust ventilation is MSHA, just for clarification. MR. GLOVER: Yes. Yes. I understood that, but the point I'm going to make, and I think it's the reason why we keep referring to the advisory report and because for one we believe that will protect our miners much more than this proposed rule, and the reason is, and I think it was a fair question. I don't think it was what I will say is slighted against any individual sitting on this panel. I was involved whenever they traveled the coal fields. They went, and they seen firsthand the dust conditions. They were in prep plants. They were in surface mines. They were underground. They talked to miners. They seen the coal dust on the miners faces so that I think it has more of a bearing, and I'm not slighting anyone on this panel, and I hope not to offend anyone. If I do, so be it, but I'm trying to say that we all do not realize sometimes how severe or how effective something is unless you go do it yourself. I mean, it's easy just today. We're sitting in a room here breathing pretty good air, I would assume. All indication. I feel comfortable in here, but currently right today we have people that is in the mines mining coal and the dust, and they're breathing dust. It's kind of like when you live in Washington, D.C., and I won't slight you people. You live in Arlington probably. We've got people in our office, and I'm not slighting our office, that forget the reality in coal fields, but when you live there and you see the economic impact, you see miners having to do things that they never dreamed they'd have to do, and I'm speaking of breathing dust. It's called economic pressures. They look toward this agency, which under the Act guarantees the most precious resource is the coal miner. Sometimes we get into economics and don't want to put a burden on a coal company, but whenever, you know, you open the Act or the first page of the Act we talk about that most precious resource. Now, since mining of coal has begun we have had coal miners dying from black lung. I think we all can agree with that. I think we took a giant step in 1969. That's basically when I came into this industry, and I don't want to take too long and take too much of your time because I do know there's been a lot said here today, but I think it's important. I'm going to refer back to my childhood because I grew up in a coal camp. I'll never forget the first victim of coal dust, and I was approximately ten years old. The individual's name was Mr. Gerald, and he lived right up on the hill from where I was raised. He passed away, which at that time they called it silicosis. Now, I'll never forget my father saying he died from silicosis. It wasn't black lung. I can remember this because his wife run down to our home, and actually my dad rode up there, and me as a kid followed him up there. In all honesty, it was the first dead body I ever seen, so it had a big impact on me. Anyway, the ambulance came. They took Mr. Gerald away. It made me wonder, you know, what is silicosis. I'd see my dad coming home with a dirty face, seen my grandfather later in years die from black lung. It's a slow death. The point I'm making is it was there, it's for real, and I also believe it's there today. I'd say sincerely to everyone on this panel I think if we don't believe that and the four milligram or two milligram standard, and I'm going to throw some other things out that I think you should consider. Really I think you should go back and review that advisory report and focus on what these individuals have to say here today because one of the reasons I don't want to take too much time, which it's probably going to take more than I want to, is they're going to tell you some of the hands on things that they do on a daily basis and the conditions of work, and I don't want to take any time away from those individuals. Going back, I come into the mine in 1970, and I seen the dirty faces, seen the dust, sucked the dust, seen my father die from black lung. The federal government said he didn't have it. When he passed away in 1997, my mother had already passed away. No dependents, but he asked me, because he was always denied black lung, to have a biopsy of his lungs. He knew he had black lung. He couldn't breathe. The x-rays, the blood gas at the hospital, all the things that they run him around said he didn't have it. I did that. It was tough. I got the report. Sure enough, he had black lung. Severe stages of black lung. As Bolts referred to about the x-rays, Bolts Willis, about whenever you all came around and I guess a lot of people satisfied. Overall, you know, you didn't see on the x-rays near the amount of black lung they thought could be out there. I only make that point because the x-rays, the blood gases and everything is not telling the true story. So, what do we have to do? We have to eradicate the dust. We've got an obligation to do that. It's the right thing to do. At whatever expense it takes this industry, this industry owes miners an environment that we're in today. This industry owes that to our miners day in and day out, and that's even if we talk about diesel, we talk about dust, whatever the issue is. We deserve good air and good water. It's something the Lord give us, and we deserve it. It's something that our bodies has to have. But, let's talk about black lung for just a second. We come up with regulations. Generally they're cut and dried. If you touch a trolley wire here, you know, we put barbs on it. If you touch it, it's going to bite you. You know it's there. You know how to protect yourself. Black lung creeps up on you day after day after day, and we all know this. I'm just kind of going through something to share with you. Then it bites you all at once. Then the first thing you know, as Daryl talked about, we see our friends dying off. We find out they have black lung. We have came a long ways, and I give MSHA a lot of credit. I give Congress a lot of credit in 1969. A lot of people suffered for that in 1977 when we upgraded, but we cannot, the point I'm making, go back to a greater standard than we have. Now, I can make some recommendations, and I fully support what the Federal Advisory Board did, the committee. They worked hard at it. They seen firsthand, but let's talk about the buffer zone. You talked just a little bit about the importance of two milligrams, and we'll kick it up there to I think it's 2.33 or something like that as a buffer zone for the valley part. You better do that or we all -- if any thing passes their going to take it to court and tear it all to pieces. It's human nature. If I was a coal operator I might be doing the same thing. I wouldn't say if I would or I wouldn't. I haven't been in that predicament and don't plan on being in that predicament. The point is let's do this. On your continuous miner sections, I know without a doubt that we can meet a one point standard milligram. One point in the continuous miner section. No doubt in my mind. We've got scrubbers. We've got air. We can do it. It's proven. Let's talk about long walls for a second. We're talking about bumping them up to four. I'm convinced -- well, I know you're shaking your head, Marvin. I'm just going to the extreme end. Under certain circumstances. Let me put it like that so you won't shake your head there on me. MR. NICHOLS: Small. MR. GLOVER: Small, yes. Okay. Let's go even with the small. Let's do away with that small. Let's go with the two point milligram standard on long wall and give it a little buffer zone, the same as you would on a one on a continuous miner section. If you ever go to these airstream helmets, you've done away with any kind of engineering controls that will ever be considered. The bottom line is long walls will meet a two point standard. If the guys want to wear an airstream helmet, that's fine, but as this guy has sit here all day, and I'd say it was pretty uncomfortable. He's going to talk about that, and I'm not going to get into it because he's going to tell you what the doggone -- being uncomfortable all day in that thing. But say if you do. We can meet, I know, a two point standard on long walls. If you ever go to this, it's going to be exactly on the hearing protection. Now, think about it. I'm going to take a guess here. In 1978, we had a Joy miner that had a scrubber on it. They disconnected that scrubber. I never did know why other than the boss come up there and said hey, this thing was sucking air in and spraying it down. This was the greatest thing I'd seen since I'd been in a coal mine. I kept thinking and thinking, and it went for years. They never would say. It wasn't required. Well, then I come to find out a year or so later it was because of the noise. We've got to try to get the noise down. The scrubber is making too much noise. Now, over the years we've over come that. We've got scrubbers, the greatest thing that's happened to take care of dust on continuous miners, but do you know how we got the scrubbers? It wasn't because coal operators cared about my lungs or coal miners' lungs or anybody in here. It was because of extended cuts. That's the only reason that they put scrubbers on. That's the only reason. The sad part is the production dominated the protection for the miners on the Hill, and that's a fact. Some can disagree, but that's how Rick Glover feels because I've seen it. That's how this industry operates. We do have some good companies out there. We have our share of bad companies. Currently right today we've got dust fraud out there. Currently right today we have miners dying, and currently right today we have investigations going on with MSHA about dust. Now, I want to just talk a little bit about the effective plans, and then I'm going to wrap this thing up because there's a lot of people, and if we all keep talking a long time a lot of people aren't going to get it. I've got some questions. Effective plans. I was looking at your overview here this morning, and as you go back, and I hope you come back with a better proposed rule, and I would really appreciate when you do that it's not 700 pages and it's pretty simplified, but go through the coal fields and do some briefing and educate us and then let us make some comments. We may be able to help you a lot better because I haven't studied near as hard as Tom Wilson and a lot of other people, and I haven't looked at that. I don't consider myself a dummy, but I'm far from the highly intelligent person, but I'll put my common sense up against any individual that ever walked around here, and practical mining is right up in there. But effective plans. Let's just talk about that a minute. This is kind of like I'm trying to -- of what you're all wanting to do. You're going to come up with an effective plan that's going to meet a certain amount of milligrams, require the companies to go back, right? You're going to have miners not participating in developing this plan. Is that true? MR. SCHELL: No. MR. GLOVER: They will be involved in the -- I'm wanting you to help me here because I want to educate -- MR. SCHELL: Yes. MR. GLOVER: -- the people myself, too. MR. SCHELL: Yes. Rick, it's a ventilation plan. MR. GLOVER: Yes? MR. SCHELL: There's a requirement that that be shared with the miners. MR. GLOVER: Yes, I know it's going to be shared. MR. SCHELL: It's the same process that we go through now to get an approved ventilation dust control plan. We weren't proposing to change that. MR. GLOVER: Okay. Now, we've got this effective plan in place. We've had miner participation is what you're saying to get this effective plan, and we have run our dust surveys, and we have met all the criteria that you all got lined up, which is pretty complex, which is this going to be regulation, or is this going to be policy? MR. SCHELL: It would be part of the ventilation plan, so it would be you can cite it. MR. GLOVER: Okay. Now let's go to the next one, compliance with the plan. Now, whenever you come with compliance is that going to be your bimonthlies to see that your compliance -- MR. SCHELL: No. What we're saying, Rick, is a couple things. Once that plan is approved, we've got the requirement now that before every production shift the mine operator has to check to see that those controls are in place and operating. MR. GLOVER: Right. That's the point that I was hoping would come out -- MR. SCHELL: Yes. MR. GLOVER: -- because that was going to be my next question. We've got a plan. MSHA is not going to be around for two months give or take a week or whatever. I mean, we've learned about, you know, that they're going to know they're coming. Well, let's say that every inspector in MSHA is honest, and I know a heck of a lot of good ones, but the point I think some of them was making is how the company knows that today is dust day. Let's make sure we've got everything rolling. They've got signals. MR. NICHOLS: Yes, but -- MR. GLOVER: Let me just finish here, Marvin, and then you can ask me all the questions you want to. MR. NICHOLS: All right. Go ahead. MR. GLOVER: I'm going to make some points, and I think it's important for everybody to understand. We've got our compliance. We're dependent on these dust perimeters, curtains, whatever will outline this plan. I'd assume that the FAR section -- foremen, whoever, is going to make sure those curtains are there and the workers and everything like that for these two months, you know. Some of the inspectors will come and make a regular inspection where the curtains are up, take an air reading here and there. Am I getting pretty close? MR. NICHOLS: Yes. I mean, in these underground mines of any size I dare say, especially the Jim Walter's mine and mines like that, we've got more than one or two inspectors in the mine. MR. GLOVER: Do you know how may large mines we have in southern Wester Virginia? MR. NICHOLS: I know you have a smaller number than you used to have, but I don't know. MR. GLOVER: We have a whole lot smaller. MR. NICHOLS: Yes. MR. GLOVER: I'm not talking about our service mines. We're probably talking about somewhere around ten, and we've probably got about 300 small mines, 250, give or take. MR. NICHOLS: Yes. MR. GLOVER: But anyway, I'm speaking of southern West Virginia. So we will depend once again for the companies for two months to take care and make sure this effective plan stays in place. We've got the fox guarding the chicken house basically. The only trouble you're doing with it is you took all the responsibility and all of the burden off the operator, and the operator should be tickled to death. They don't have to worry about fraud. They just only have to, as has been mentioned earlier, every couple of months make sure I'm right. MR. SCHELL: I guess, Rick, and I'm not being argumentative about it. MR. GLOVER: This is being extreme, and I'm just laying out the extremes. MR. SCHELL: What we're having trouble understanding is, and rightfully so, you've talked about how ineffective operator sampling is. MR. GLOVER: I haven't finished. MR. SCHELL: Okay. I'm sorry. I'm sorry. MR. GLOVER: Yes. Now, I'm going to give you an idea on that. You've got MSHA going to come every two months. It will depend on the companies and the laborers, even the ones that has problems every day. We have good mines. We have bad mines. As I mentioned earlier, we have economic pressures on miners. They're doing things they never dreamed they'd have to do. But, I'm going to tell you a solution to this. Monitoring the plan's effectiveness. MSHA comes bimonthly. Why not require to get the company to do the samples and do them more often to meet the criteria? Can there still be fraud? You better believe it, but at least if you're lowering the dust standard you make them take it whether it's once a week on the whole crew or you have designated operators. There's got to be a solution. It keeps the responsibility, the burden, on the operator rather than just that every six months -- I mean every two months -- making sure I'm in compliance. He's got to do it more often is the point I've trying to make. You can never take that responsibility off of the operator. Now, that may not make sense, but the direction we're headed -- now, if you're going to be there every day or once a week and test the whole crew, I'd say hey, MSHA, which I think that's what should happen. I believe in continuous dust monitoring. If you can't come up with the technology, which I do believe is available from what's been told to me, that's the direction you should head. That is the only way you'll ever know what miners are actually breathing. Sample them every day. They say boy, that gets expensive. It don't matter how expensive it is when it comes to people's health. Let them send them to you. If it's fraudulent, it will gradually come out, but you're holding the operator responsible, and you're not just saying you're no longer responsible for the conditions that your miners are working in but for every two months, and that's how I see this thing shaping up. If we end up with policy, it will not be every six months, or it will not be every month or every three weeks. I don't know. Policy is no good, you know. I don't think we deserve policy. I think we should put it in black and white so the operators understand it, I understand it, the miner understands what they have, and we don't have to worry about it. The only point I'm trying to make, and I'm not trying to be derogatory, but every two months that you all come around takes a heck of a burden off this industry. They ought to be tickled to death. If you still make them do their -- I don't care if it's every day. Miners deserve it. We're mining more coal with less miners. We should have more inspectors as many mines as is being shut down. You should have adequate work force out there. You all know that more than I do, but you should. I mean, I traveled to D.C. in the middle of the night to try to help you get your budget several times. It's been cut very minimal. But anyway, that's an idea, and I throw that out. Whether it's right or wrong or indifferent, and I want to point out for sure the reason why we are so supportive of the advisory committee because they was there, and they seen it firsthand. Not slighting any individual here, but if you haven't been involved you should get involved. I know you are highly intelligent people. I don't want to take anything away from you when it comes to health, but there's a whole lot of difference from what you read in a book and what actually goes on when you get to doing it inside a coal mine. The other point I wanted to make about effective plans. We have an effective plan, and you will come back in two months. What if in that two months you hit rock? The quartz goes up. MR. NICHOLS: But keep in mind the bimonthly sampling is minimum requirements. MR. GLOVER: I understand that. MR. NICHOLS: If the district managers chooses to sample every month he can do that, I mean, for conditions that -- a poor history of compliance or different conditions, mining in rock. We've never been shy about doing things in addition to the minimum. MR. GLOVER: I understand that, Marvin, but the point I'm making or I'm trying to make is two months is way too long if we're serious about eradicating black lung in the coal mines because conditions change every day. Every day in a mine conditions change. We get in the bottom. We get in the top. We get in middle bands. Seams drop. Seams increase. Sometimes we've got to take extra because of the rolls. We've got to take extra top. I'm just saying if we are serious about eradicating black lung in the coal mines, we've got to reduce those standards. Is it feasible? You better believe it is. Go back and do your research on continuous mining sections. You can reach the one milligram standard. I just wanted to say this earlier, and I know we're ready to eat. If we ever go to accepting airstream helmets, we'll be exactly, exactly like our hearing protection. Since MSHA, and relating back to that scrubber about that noise and they disconnected it I was telling you in the late 1970s, you know, to meet. They used to have us putting rubber under the shields continuously working on trying to get the noise level down. MSHA comes along and comes out with a policy that the hearing protection is the route to go. There was never -- very minimal. For one thing, there's no an incentive. The second thing is there's not a mandate. There was no engineering controls developed or very minimal -- they had no incentive to do it -- whenever we started accepting hearing protection in lieu of engineering controls. If we start here with this and we open that door, it will come to your miner sections. It will come to your outby areas, and it will come everywhere else in the coal mines. You might as well put them in a space suit and walk them around. MR. NICHOLS: It won't happen. I mean, it -- MR. GLOVER: It will, Marvin. MR. NICHOLS: No. It's already been tried. When I go out in Alabama, out west, I see a lot of miners wearing airstream helmets that they choose to wear on their own. We have been asked over and over by mine operators to consider those engineering controls, which we've never done, and we never will except for this one small area we're talking about working downwind of the shear operator because we think as much as people say that they continued compliance day after day after day, there are some mines where you don't have compliance with the two milligram standard working downwind. Now, is it better to keep arguing and say we have got it, or does it make sense to adopt some additional protection for the miner? That's all we're saying. I can't tell you how many times I've been asked to consider the airstream helmet in other sections of the mine as an engineering control. We've never done that. MR. GLOVER: You're like I am, Marvin. One of these days I'm not going to be here and you're not going to be here. There will be somebody else here. MR. NICHOLS: It isn't me. It's been the agency's position -- MR. GLOVER: Yes. MR. NICHOLS: -- that it is not an engineering control. MR. GLOVER: Okay. Anyway, you know, that's a point that I want to make because I think, you know, that we can very easily get into that posture. It may not be in your heart to do that. It may not be in anyone's in this room. MR. NICHOLS: I've been with the agency almost 30 years, and -- MR. GLOVER: Yes. MR. NICHOLS: -- it's been that position from day one. MR. GLOVER: The only thing is you're going to retire one of these days. MR. NICHOLS: One of these days I will. MR. GLOVER: I'll just go ahead and close here because I've talked long enough, and I do want to thank each and every one of you. I hope I don't offend anyone here because I know you're highly intelligent people, but I do know that you've got to look at the miners' environment. You've got to live it. You've got to know what it is to really understand why this is so critical and why we believe so hard in it. It's long past time to eradicate black lung in the coal mines. We have continuous monitoring available, and if we don't they should be sampling every day as far as I'm concerned. MSHA should follow up with theirs like your plans are, but don't never take the responsibility of the operators off of them to where they put that responsibility entirely onto you unless you're going to do it every day with continuous monitoring and be there. Now, that's Rick Glover's position. I encourage you to go back and review once again the advisory report and look at why they felt like that. Whoever called the shots that this document was good or bad, you know, in you all's agency I don't know, but I do know that I've heard Davitt McAteer, and I can't give you a date, even said the only way we'll ever eradicate black lung is to get it down to at least one milligram. We can do that. I don't know about long walls. I think we can in our area, but I can't speak in Alabama. In our areas, we can do that. If you want to increase the buffer zone, put it down to one milligram and like 1.25 so when we go to Court you can hold the operators. What I say comes from my heart. I would just say in closing, you know, I want to take the opportunity to thank you for the time that you've given us because I've been before you up here, and maybe it's the right thing to do. You give someone five minutes. You don't get to say a whole lot in five minutes, but you all have been kind in letting us lay out all of our positions. But, remember just what your objective is, whatever the final product comes out, and that is I hope to eradicate black lung. We've got a golden opportunity. Improve the working conditions, as referred to earlier, for our most valuable resource, which is our coal miners. I thank you very much. Any questions? I'll be glad to try to answer them. MR. NICHOLS: I think your comment about doing some up front briefing on these future rules is a good one; that we go out and try to do some with education. MR. GLOVER: All right. Thank you. MR. NICHOLS: Thank you, Rick. (Applause.) MR. NICHOLS: Okay. Let's break until 1:15. Larry Tolliver will be the first presenter after lunch. (Whereupon, at 12:15 p.m. the hearing in the above-entitled matter was recessed, to reconvene at 1:15 p.m. this same day, Thursday, August 10, 2000.) // // // // // // // // // // // // // // A F T E R N O O N S E S S I O N 1:15 p.m. MR. NICHOLS: Go ahead. MR. TOLLIVER: All right. My name is Larry Tolliver, L-A-R-R-Y, T-O-L-L-I-V-E-R, United Mine Workers. I've been a miner for 26 years. I'm chairman of our safety committee at Local 1713. I work for U.S. Steel Mining. I have just a few comments to make. Most of the people have talked about a lot of things I was going to talk about, but the one thing that still concerns me, and I know you all have said that the four milligrams is not going to be an issue technically, but the way I see that is we have two milligrams now. We're wanting to raise it to four milligrams in you all's recommendations here and then go for an airstream helmet. We used airstreams years ago at U.S. Steel. That was an option that people used. The people at our operation -- we don't have a shear. We have the only plow in the United States, and that's what we use. Airstream helmet stuff, as you can see the gentleman back there wearing it all day. Like we was talking at lunch, what really would have been interesting is if one of you all wore one of that all day long here sitting and all the get-up you had to wear. Air flow at our mines, probably the highest coal we have is probably 60 inches. When you put your shields and stuff in there and you have to get underneath and crawl, you're talking probably anywhere from about 38 inches up to probably about 52 inches of clearance underneath that. If you try to wear something like that and try to see where you're going and try to protect yourself with that, it becomes more of a hazard than what is the benefit to you. Where I see going with this airstream helmet issue is that once a coal operator is allowed to use that to come in compliance, then he has met his criteria as far as his company to get himself in compliance by MSHA standards, but now I know how miners are. They get frustrated because they can't get around. They can't see. They can't breathe through them. What I'm afraid will happen is the miners will just disregard them. They'll quit using them. But now, when MSHA comes in and tries to cite the company, the company, all they're going to do is say now wait a minute. We're meeting our criteria. We have given these employees these helmets and everything to wear. We can't force them to wear them. The people are going to be jeopardizing themselves because, like I said, it's inconvenient and in some instances dangerous for them to wear stuff like that trying to work on that jack lines. Believe you me, you do have dust in the jack lines. Down at U.S. Steel we keep our dust pretty much under control, but we're a big operation. We have 400 and some union people that works there, not counting the salaried people. We have a safety committee and, as you was talking about federal inspectors, we have two resident inspectors assigned to our mines who are there almost every day. We have one state inspector. Through them and through the committees and through the UMWA itself, we pretty much enforce U.S. Steel, and so does any other big company get enforced and apply the standards. What really worries me is these small operators where an inspector, if it's one section mines he can probably complete his inspection probably within one week to a week and a half. You see that inspector no more until the next quarter. Then who is going to make these small mines adhere to the dust regs if we can't do it now? How are we going to make them adhere to them in the future if we even increase this stuff? I hear obscure stories now from inspectors that go to these other mines that is absolutely unreal. The state inspector tells me. He says I go on the property. They notify them underground I'm coming in. He said I get to the section, and a brand new line curtain is hanging on that section. He says it's never been used before. He says there's nothing I can do about it. He said I can't issue no citation because, he said, they're complying with the law, but he says I know as quick a I leave that property that line curtain comes down. I see employees that does not bathe at the work site. I see them from other mines. The majority of them are non-union mines. Folks, I'm going to tell you. You need to see what they look like. The coal dust that is embedded into their faces, their clothes. When you can see that, you know they're not adhering to the ventilation policies. They don't have any say so of what they do, because they know if they complain these operators are going to tell them there's the street. They have no recourse. They don't have a union. They don't have safety officials to back them up, and they know if they go to the federal agencies or the state agencies and they are found out about, they're going to get fired. Some way, somehow, they're going to get rid of them, and that's what really worries me, like I said, is small operations and even the non-union operations out here. It worries me that people are going to be jeopardized and killed. When we start raising and giving operators a higher dust level for Part 90 miners and even for long walls when we say we can raise it to four milligrams, that's giving them a very bad disadvantage to the working men, the men that work in these mines. I think we need to lower the dust levels, just like Rick Glover was talking about. We need to look at getting one milligram on miner sections. We need to try to bring everything we can down instead of raising them up and giving them a more disadvantage against the workers because I'll tell you. These companies, and you all know it. These companies will jump on this stuff if they can. They'll jump on this any time they can get a chance to better themselves. These coal companies will. You all know it as good as I do. I've talked to foremen at U.S. Steel that have come from non-union mines. We have several of them that has worked at several different operations, and I'll tell you right now some of the horror stories they tell me and talk about. It's unreal how they mine coal. When you get on the sections, you have super sections. You have two miners on a section, and you run both miners at one time and mine coal. Folks, you're not having no kind of dust control. You're endangering everybody's lives in that mine, and most of those mines are non-union. When they're already doing that now, we can't afford to give them a different kind of advantage that the law says they can do legally because they're doing it illegally now. We need to crack down on the dust controls and make them enforce them and get tighter with them is what we need to do. That's all I have. MR. NICHOLS: Okay. Thanks, Larry. (Applause.) MR. NICHOLS: The next presenter will be Danny Sparks, UMWA. MR. SPARKS: Hi. My name is Danny Sparks, D-A-N-N-Y, S-P-A-R-K-S. First of all, Mr. Moderator and panel, I'd like to thank you for the opportunity to speak. As the old saying goes, I'm as nervous as a long tailed cat in a room full of rocking chairs, so just bear with me here. Anyway, I'm president as Local Union 2232. I represent 140 active miners and 300 plus laid off miners that's on the panel. I'm presently a member of the Mine Health and Safety Advisory Board in Virginia, and I'm here to log testimony here this morning. I wrote about ten pages of notes, but as we go on maybe I'll refer to some of them. On July 7 when I got up, you know, I was getting ready for work. I go out and get the paper. I look at the paper, and it says -- in the paper we got it says black lung has been eliminated from the mines. I didn't get a chance to get into it, but as I go to work I get to thinking about it and then get at work and talk to some of the men, and some of them had seen the headline. They asked me what it meant. My first thought was well, MSHA is going to take over the sampling program. There will be no more cheating, no more wetting down the track ways, no more increasing your water infusion in the coal. MSHA is going to take it over, and we know what we've got. Then the next comment was we're going to get a full shift sampling. If you go in the mines at 8:00 and when you come out at 6:00 or whatever, you're going to be sampled for the full amount of the time you was there. My next thought was well, at least 90 percent of production, maybe even 100 percent. Then my last thought was at the least we would be one-half milligram would be the maximum, maybe even down to one milligram. You can imagine my surprise or whatever as I got into these regs. From what I can understand or got to reading them, first of all, if MSHA takes over the program, the dust sampling program, and, you know, I know we've got some companies out there that does the sampling honest and, you know, you know they're concerned, but I was probably in three different meetings with Davitt McAteer, and I testified before the advisory committee on this very thing, black lung, and Davitt, and it keeps going over and over in my mind, but Davitt said that we're going to eradicate black lung from the United States or from the mines. To be honest with you, after looking at these regs I'm not even sure we put a dent in it. In a lot of cases I believe we even hurt what we already had as the proposed rules as written goes in. I work at Island Creek Coal Company that's run by Consol Energy, and I am a long wall jack setter, the tail jack setter. I know you spoke about the airstream helmets or we call them Darth Vader helmets, but, anyway, you spoke that this would just be a small number affected or a small area. Well, you're looking at one that would be affected if it comes to that. I've tried wearing airstream helmets. They're cumbersome. They're hot. They're sweaty. The shields sweat up. They're almost impossible to wear. I know that you said going to the four milligrams would just be when everything else is exhausted, but the old saying goes if you give them an inch they take a mile. If you open the door as this to be a way to come in compliance, the airstream helmets, and don't get me wrong. If a man wants to wear them that's fine, but if it's a way to come in compliance then you've defeated the purpose. In my opinion, what experience I've had with the airstream helmets, the only advantage I found to it is like when you're setting jacks when the booster material, the rock and stuff comes off the jack. It keeps it out of your eyes and stuff. As far as respiratory, I didn't see anything. On the full shift sampling, our shift starts at 8:00. I'm on day shift. We go in the mines, and whether it's company sampling or the inspector sampling, when we go in the mine you get on the man bus or portabus, whatever you want to call it, and we advance to the long wall. We usually arrive on the long wall at 8:30 or 20 minutes to 9:00. A lot of times the company gives us their dust pumps outside and a lot of times the inspectors do, but there have been occasion when they give them to you when you get on stage. You put the dust pump on, and you go down the jack line. We run a 1,000 foot face. We're putting 180,000 or 200,000 cubic foot of air across the headgate to the face. It is a gassy mine, and right now we're in compliance on dust. We haven't been out in the last while. Getting back to the sampling, you take this, and the inspector or company, whoever is sampling, and then at 3:00, 3:10, 3:15, they come get the dust pumps and they say well, we've got to go. Here I am setting jacks or in a lot of cases running the shear. I'm there until 4:45 or ten minutes to 5:00 exposed to this dust, so at the least you need a full shift. Let me take the pump in with me as I go in, and then when I come out ten hours later I'll have the pump with me and turn it in. You know, it's not only the long wall that creates dust or the section. I mean, you've got dust outby. Any time you're transporting coal, transferring it to different belts you've got dust. Not only coal dust. You've got rock dust. It's different amounts. You've got sand dust if you've got track equipment, you know. It's not only in the face area, so we need full shift sampling from the time you leave the portal until the time you get back. On the production levels, for the last 20 years the dust standards has been the easiest thing to cheat and cheat legally if there is such a thing. Sixty percent production at the current sample or whatever, if you're getting eight runs a shift and you're just required to get 60 percent. You run six runs, and then there's always something you have to do. Always before they do their belt work on third shift or whatever, but it just so happens the day their sampling they had to take the belt structure out that day. That's probably --. It's too easy to cheat, and that's the reason I was getting back to if MSHA took over. You know, I'm not here accusing anybody of this falsifying or whatever, but the day before sampling day if you wet the track down leading to the long wall section and don't do it no other than but the day before sampling day, if you plan your sample days where your water infusion is at its greatest or you're closer to a water infusion hole, if you make the rule or the foreman on the long wall tells you that no one runs a scoop outby today, if you need oil or whatever, you know, you hand pat it, but see, all these things they add up. The dust that's accumulating on the long wall section, all the dust that's accumulated outby that whole area is funneled across your long wall face, especially in our area. We've got so much gas. You have to have the air, you know, to dilute the gas. So the sampling, if you can reduce your sample and slow it down, but if you was at 100 percent of what your sample was last week, if you averaged 20 foot a day, today when you come to sample you have to run 20 foot or you'll be back tomorrow sampling or the next day or whatever. You need -- even 90 percent would be better than 60 percent. I hear Ron say, and again I thank you for your time. I know it's a long day and you hear a lot of comments. You know, I'm not here pointing fingers or browbeating no one, but I think if we had really got to what the advisory committee wanted I think that we would at least have a 90 percent production before it would counted a valid sample. Ron made the comment when he was showing the slides about once, and this is the way I understood it. Once they come out of compliance when you come into the sample that they would be much higher than average production. See, that's not spelled out. It don't say you come out of compliance, and when we come back to sample or compliance sample or whatever you'll run 100 percent of your average. You know, they don't say that. For the life of me, I don't see how in the world if we get 20 foot a day how could you have a valid foot on 14 foot that day. I mean, this is real numbers, what people or miners is breathing every day, so it at least needs to be 90. As far as the dust standards, the two milligrams, I thought maybe we was even going to go to one and a half or maybe even one. I know Marvin talked about the airstream helmets, you know, and how, you know, you hear a lot of comments how you doubled the standard to four, but I know in some cases I know you were saying that it's just an area where they can't come in compliance downwind or in by your tail drum on the shear, but in reality you had, though, that standard from two to four. Why didn't you just say it would be two milligrams or less? You know, I don't know. Really I'm at a loss of words. I'm sad. I not only represent the union miners, but as a member of the Health and Safety Board of Virginia it is bestowed upon me, and I don't take it lightly. I represent every man that goes underground in the coal mines in Virginia. At big mines where you've got the union walk arounds, you've got company safety reps, you know, things for the most part is done right. If the standards was better they'd be done a lot better, but for the most part. You take these little, and pardon the expression. You take these little dog holes, and it's not done that way. I worked out six different coal mines in Virginia, four of them being dog holes, and if you want to work there then you eat the dust and you do that. If MSHA, and I hate to be repetitive, but if MSHA would take over the dust program then there wouldn't be no getting your ducks in a row before sample day. I mean truly take over the program. The single full shift sampling that you talked about, that's good, but I can see drawbacks to that. There's too many variables, and there's too many ways to cheat the dust program before and even in these regs now. From my first impression reading them, an operator, if he's devious enough and he keeps coming out of compliance, I envision him coming up with some kind of plan, dust control plan or whatever, where it takes all responsibility off of him. You know, I'm doing what I'm supposed to do, and MSHA is saying well, you put airstream helmets on your jack setter or your tail jack setter. Put an airstream helmet on your tail shear operator to use. You know, it's all right. We can go ahead and mine, but there's better ways to mine. Rick said in closing several times I'm reminded of -- MR. NICHOLS: He never closed. MR. TOLLIVER: Yes, I know. I'm reminded in church when I was a young boy the preacher would say in closing. I asked Dad. I said what does that mean? He said it means he's going to talk about 30 more minutes. (Laughter.) MR. TOLLIVER: But in closing, and I hate to be repetitive. MSHA needs to take over the program. We need full shift sampling from the time you enter the mines until the time you leave. We need the production level at least 90 percent, and we need the dust standards at two milligrams or even lower. It can be achieved. If you've got any questions, I'll try to answer them. If not, I'm done. MR. NICHOLS: Thank you, Danny. (Applause.) MR. NICHOLS: Rickey Parker, UMWA? MR. PARKER: My name is Rickey Parker, R-I-C-K-E-Y, P-A-R-K-E-R, and I'm chairman of the safety and health committee for UMWA Local 2368. I'd like to thank the panel for allowing me to appear before you today. Many changes in the MSHA proposals are difficult to understand. The preamble, the proposed rule and existing rule all need to be read carefully to fully understand them. As the old saying goes, the devil is in the details. Side by side comparisons of the current rule are difficult since MSHA proposes significant structural changes. MSHA reduced some important protections and substituted those legally enforceable protections with agency policy. Some such changes are reflected only in preamble, but not in the rule itself, and some are curtailed. Some enforcement and proposal actions would be discretionary. MSHA publicity about the proposed rule has contributed to the misunderstandings. For example, some announced improvements are simply not to be found in the proposed rule. The MSHA proposals ignore the longstanding demands by miners and the UMWA on reforms needed to fix the troubled dust sampling program. Despite MSHA's assertions, the proposals disregard reforms sought in the lawsuit the UMWA filed January 13, 2000, this year. The proposed rule also ignores the findings and recommendations of the 1996 federal advisory committee. The Secretary of Labor established that committee to guide MSHA in developing proposed rules to reform the dust sampling program. Several MSHA proposals contradict its recommendations, undercutting protection for miners, and the miners in UMWA participated in the advisory committee recommendations which were aimed at fixing the flawed respirable coal mine dust program and eradicating black lung and silicosis diseases. We ought to wonder how MSHA veered off so far from the path from adding the protection miners have long sought for and how its rule can be so contrary to the findings and recommendations of the advisory committee. The proposal makes one point clear to coal miners. Compliance sampling is not important. Thus, while the MSHA proposals would add single sampling in plan verification requirements, which we're thankful for, they eliminate the compliance standards in Part 70 of CFR, including the standards the miners could point to and know what requirements were. The proposed rule eliminates the entire compliance sampling requirements of Parts 70 and 90 with no replacement rules for compliance sampling. Also, it dramatically reduced an 83 percent reduction for frequency of shifts samples for respirable dust compliance. Finally, section compliance sampling would occur only six shifts a year and outby areas one time a year. Those are not guaranteed by rule or funding. It also would increase the dust exposure levels above those contained in the Mine Act and current standards, whereas the advisory committee recommendations were to lower the dust standard for respirable coal mine dust. The proposals would allow mine operators to double the two milligram standard on long wall faces, while the proposed rule states that the exposure level would be 2.3, and for Part 90 miners outby and intake samples to 1.26. These were referenced in the preamble by a formula. It also permits mine operators to replace engineering and environmental controls with the Recal airstream helmets or administrative controls on long walls in which the 20 years of mining experience that I have I've never seen environmental or engineering controls exhausted in a coal mine. I've seen our long walls get out of compliance, and by the grace of God that mine operator comes up with a plan, whether it be environmental or engineering control, to simplify and get the long wall face in compliance with the dust standards. Various unique conditions of coal mining, obstructive views, difficulty communicating, may compel miners to lift the visors on their airstream helmets. The actual fit or seal of this respirator helmet, to wear in repeated work task motions in confined work spaces, raising the visor and high velocities of air along the long wall face may all significantly reduce the actual degree of protection provided in the workplace. Enforcement of the MSHA proposal is too fuzzy. Miners may not know what to expect. The MSHA policy addressing the sampling process and intended enforcement of the plan verification and other standards appear to reduce the policy and discretionary decision by MSHA or its inspectors, and that is not good for miners or the mine operators, as a matter of fact. With an Administration that would be soft on sampling levels, miner participation activities, approval of increasing coal mine dust levels and other provisions could leave the miners in a hole. With already the mistrust among the working coal miners of this country pertaining to respirable dust sampling practices and recommendations of both NIOSH and the task group put together by the government, along with the proposed rules, you're sending that mistrust deeper into the coal fields of this country. Despite reports of an MSHA takeover of compliance sampling, in the proposed rules we don't see that. There's nothing in the proposed rules on compliance sampling requirements. To us, those were eliminated. Since it is not a rule and funding has not been guaranteed, MSHA's current sampling is not legally guaranteed and can be reduced. Despite references of increased miner representation and participation, there were none in the proposed rule. For compliance sampling, there have been no more rights miners have had since 1997 or 1977 -- excuse me -- in MSHA's plans to recognize by policy miners' representatives rights to participate in announced MSHA visits to verify dust plans. The industry has already challenged that, and absent a rule miners will not likely get it. The rule again does call for single shift sampling, and we appreciate that. That has been supported by the miners and the UMWA. That proposal has been altered by MSHA policy and other proposed rules reducing the benefit for miners. Full shift samples would only be taken during abatement sampling. Routine compliance sampling, which will be the vast majority of sampling, will not be full shifts. They will be eight hour, 480 minute samples with some flexibility when they will be taken during the shift. This brings to mind what a full shift is today in the coal mining industry. As many of my fellow brothers here have mentioned, a coal miner routinely works nine to ten hour shifts producing coal underground. Why for dust sampling purposes, may I ask, is a coal miner only sampled eight hours when there are up to two more hours in a working shift for him? The proposed rule contains a dust control plan verification that is complex. Although plan verification is needed by all means and we support that, as designed it is too complicated and may be ripe for the operator to abuse, and enforcement is far too discretionary. There are parts that truly need changes in the proposed rules. There is no backup plan. The proposal contains changes in the manner quartz is sampled, and the full effect of those changes are still being analyzed, to be honest with you. The rules implementing those are contained in agency policy in the preamble. The rules establish procedures for administrative controls for mine operators to rotate miners, activities to reduce exposure and comply with the dust standards. Under that scheme, MSHA would not have operators under citation to implement engineering controls, which would remove legal rights miners had to enforce engineering controls. MSHA policy on this discretion lacks teeth in enforcement and clarity. Ladies and gentlemen, the federal advisory committee was officially chartered under Section 101(a) and 102(c) of the Federal Mine Safety Act of 1977. The advisory committee was comprised of two representatives each of miners and mine management and five neutral representatives who had no interest in the mining industry. Two UMWA health and safety officials served on this committee. Those representatives, as well as several miners and black lung victims across the country testified before the federal advisory panel, and they laid out reforms needed to overhaul the federal respirable dust program. In the month of September, 1995, NIOSH issued a criteria document calling for reforms in the coal mine dust program. That document was forwarded by MSHA to the advisory committee for consideration as they developed recommendations to overhaul the coal mine sampling program dust program. The federal advisory committee sent its official report detailing actions needed to reform the coal mine dust program to the Secretary of Labor on November 14, 1996. Under this Section 101(a)(2) of the Mine Act, upon submission of recommendations from the advisory committee presented, MSHA was obligated to publish a proposed rule for reasons not doing so. Following years of delay, the UMWA filed suit. They filed suit against MSHA on January 13, 2000, to force MSHA to issue regulations on key reforms miners and the UMWA had sought for years and were recommended by the advisory committee over three years earlier. I am asked numerous times in the coal fields why did MSHA turn their back on the coal miner, the UMWA and advisory committee with their recommendations and force UMWA to file suit against MSHA, which is our friend? I hear comments that it seems that MSHA does not care how many people or how many coal miners contract pneumoconiosis because they were in no hurry to fix the failed dust sampling program. When I'm asked that question and I explain to them that MSHA is our friend, they're our buddies, they help protect us, and they read the proposed dust rules and they ask me well, does it look like it in the proposed dust rules, it's hard to come back with a good answer for them. Ladies and gentlemen, let's not kid ourselves. There actually isn't an MSHA takeover of the operator controlled respirable dust program. It's actually just flat out eliminated. What the MSHA proposal is wipe out all operator compliance dust sampling requirements contained in Part 70 of the regulations, and there are no replacement regulations. The committee recommended that sampling be increased, that the compliance sampling be carried out at a numbered frequency, at least the same level currently required of operators in MSHA and that MSHA explore all possible means to secure adequate resources without adverse impact to other agency resources and responsibilities and that any resource constraints in MSHA be overcome by mine operator funding. Again, instead of increasing compliance dust sampling in the coal mines to protect miners, the proposed rule dramatically decreased the frequency of sampling, an 83 percent reduction. Following our review of the MSHA proposals by the UMWA health and safety committee specialists, including the health and safety and legal departments of the mine and health safety committees, which we have a total of four committees at our local and we've all looked at it and it's all been mind boggling to us, needless to say, we have been able to determine one thing for sure is that the proposed rules are fatally flawed and not in the best interest of the nation's miners and in need of major changes. While the proposed rules do provide some improvements for miners, they are overshadowed by changes that would be adverse to miners and some undercutting of the Mine Act and health and safety standard protections. In the years of hard work we have all done to reform the respirable dust program, we were extremely disappointed with some several areas of the MSHA proposals. There is a loud call from all coal miners from the proud State of Alabama to recommend MSHA to go back to the drawing board and publish new proposals that follow the recommendations of the federal advisory committee. With that, I do end my speaking. I thank you so much. If there's any questions, I'll be glad to answer them. MR. NICHOLS: Thank you (Applause.) MR. NICHOLS: The next presenter will be Ralph Loney, UMWA. MR. LONEY: My name is Ralph Loney, R-A-L-P-H, L-O-N-E-Y. I'm a safety committee man of Local Union 2232. We have about 95 people working underground at our mines. Over half of them is mandatory ten hour work days. When the MSHA people come to run dust samples, I try to -- them. Usually the starting time is 8:00 to 4:00. He turns the pumps on maybe five minutes to 8:00, and he puts them back in his box. Then he takes them to the section on to the dinner hole and then distributes them out to the people. That takes approximately 45 minutes. Around 3:15 he gathers then back up again, proceeds to take them outside so he can turn them off at 4:00 or 480 minutes. In the meantime, the men is still in there two hours in the face in two cuts of coal, two runs on the long wall. That's approximately an hour and a half the men is not even wearing a dust pump. In reality, the people that we've got in our mines that's working ten hours a day is only wearing them six and a half hours. As I said, after the dust pump leaves the sections they've got to get two more cuts of coal, two more runs on the long wall. That's exposing them to more dust. How can you justify an honest dust sample when the men are still running coal while the dust pumps are in the back of the jeep on the way back to the office? I don't see why we can't have the people wearing dust pumps from portal to portal to where they get honest and accurate readings of the dust for the day that they're exposed to. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: The next presenter is Eric Barnes, UMWA. MR. BARNES: I guess you've been waiting on me. MR. NICHOLS: How did you get this job? Are you the rookie? MR. BARNES: Yes, I'm the rookie. I'll make it short and sweet. My name is Eric, E-R-I-C, B-A-R-N-E-S. I've got to get this scarf off. It's about to kill me. MALE VOICE: We can't hear back here. MR. BARNES: You can't hear me? MALE VOICE: No. MR. BARNES: Would you like for me to raise my mask? You know, I've always wondered how it would feel to be a pack mule, and I think I know now. Let me see. I'd like to start the day by asking Mr. Nichols or anybody else on the panel would you like to wear this the rest of the day? I don't think you'd enjoy it. I've had it on for about six hours now, and it's about to kill me. I'd also like to say to these people that enjoy wearing this or don't mind wearing these on the long walls, I don't see how they get through the day. I really don't. The mining industry representatives have repeatedly urged MSHA to accept the use of airstream helmets as an alternate means of complying with dust standards when engineering or environmental controls fail or were not feasible. MSHA has constantly acknowledged that airstream helmets can be effective as an interim method of protecting miners when properly used and maintained. Now MSHA -- pardon me. I'm about to die here. Now MSHA is proposing to permit under certain circumstances the limited use of either airstream helmets or administrative controls for compliance purposes under typical mining conditions. The degree of protection depends on the ability of the airstream helmet to prevent dust from entering the miner's breathing zone. To protect the miner, he has to check the filter system, make sure the battery pack is fully charged, which is one of these gadgets here, and make sure he keeps the visor in a lowered position. We all see how difficult that is, and this is in an air conditioned atmosphere. I mean, I've been on long walls, and the heat in Alabama, which that's where I work, is anywhere from 100 to 105 right now, and it's almost impossible to keep this visor pulled down for ten hours. There's going to be some individuals downwind of that shear for ten hours if we do it day in and day out. There's virtually no positive pressure in the airstream helmets. Dust may invade the miner's breathing zone through openings along the side and bottom of the visor in this area here. The tests have shown that getting the best results out of this helmet is always face the air flow direction. Now, that's going to be very difficult. Now I've got to go down on the long wall face and face the direction of the wind all day. That's impossible. Impossible. We also feel by having to use the airstream helmet, our vision will be impaired by the design of the helmet. My side vision is hampered right now. I can't see my hand until now. We depend on that as our defense underground. We have lots of different situations we have to face every day when you're on the long wall face. Tests have shown -- well, I've already read that part. We also feel by having the communication problems. I think a gentleman in the back said he couldn't hear me when I had it down like this. That's also an element that coal miners have to depend on. We have to trust each other and rely on each other to tell us when there's danger. If we can't hear, there's no way for us to protect each other. Another problem with this outfit that I see is our maintenance people. They're pretty much downwind of the shear ten hours a day, and they're working on shields in between leg jacks. I don't know if you people know what those are, but that's a very difficult place to be. With this on, I don't know how they could get in there with this on. Well, I know what they'd do. They'll field strip it. They'll take it off. There's no doubt in my mind. And the weight of this. I don't know. It's got to weigh 25 pounds. It's got to. If you don't believe me, again I will let anybody on the panel wear it the rest of the day, and I think you'll see what I'm talking about. It's very uncomfortable. The Mine Act required the engineering or environmental controls to be in place to maintain respirable coal mine dust at or below compliance levels. Section 202(h) of the Mine Act prohibits replacing engineering controls with respirators for a good reason. If the mining industry was not forced to use these controls, they wouldn't do it. Sorry. I can't see. It's fogging up. The proposed rule allows the mine operators to replace engineering controls with respiratory protection. The UMWA would ask that MSHA go back to the drawing board and publish new proposals that follow the recommendations of the federal advisory committee. Please try to imagine what coal miners are facing day to day in the workplace; the danger we have to face. Don't let this airstream helmet be a substitute for environmental control. We need engineering devices. We need worker friendly dust monitoring like the PDM-1. This unit is the PDM-2. Also, hearing protection. There's no way to use this. This is the one I prefer. I've used these for years. We've been limited. With this gadget on, we've been limited to just the earplugs. I can't find a way to put it on, you know. It just won't happen. It's not big enough. Any questions? MR. NICHOLS: Yes. Which Jim Walter's mine do you work at? MR. BARNES: No. 5. MR. NICHOLS: No. 5. I would expect that there's some number of miners that choose to wear the airstream helmet because they like to wear it? MR. BARNES: I think we tried it at No. 5. It's been years ago. I talked to one employee. I can't -- MR. NICHOLS: Well, is it safe to say that at some places Jim Walter's miners choose to -- MR. BARNES: I don't think any of Jim Walter miners use these. MR. NICHOLS: Okay. MR. BARNES: This outfit. MR. NICHOLS: Well, is it safe to say that somebody in Alabama uses them? MR. BARNES: Maybe in Alabama. Not with, you know, the air we have to have on the faces to keep the methane. MR. NICHOLS: Okay. And MSHA has never considered them an engineering control anywhere on the long wall face. All we're saying in this rule is that if you can't engineer out the problem downwind of the shear, we would consider it. Now, does everybody who works at No. 5 working downwind apply to the two milligram standard? MR. BARNES: As far as I know. I'm not sure. I'm not sure. MR. NICHOLS: That being the case, you won't be wearing any airstream helmets. MR. BARNES: Well, until you raise the milligram standard. MR. NICHOLS: We're not going to raise it. If the problem has been solved by engineering controls, then companies need not petition MSHA for the use of airstream helmets. MR. BARNES: Well, I think they will. I think they will. I think they'll do that. MR. NICHOLS: They can petition for anything, but it won't be granted. If engineering controls are taking care of the problem, it won't be granted. MR. BARNES: Okay. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: The next presenter is Dave Deerman, UMWA. Is Dave Deerman here? How about Tom Sweeten? MR. SWEETEN: Good afternoon. My name is Tom Sweeten, S-W-E-E-T-E-N. I'm the chairman of the health and safety committee for Local Union 1545. I'm here to let you know we have coal mines in Illinois also. West Virginia and Alabama have been prevalent so far, but I'm from southern Illinois. First of all, I'd like to comment on the airstream helmets. I wasn't going to, but I've worked on the long wall for nine years. I'm a roof bolter right now. Before that I was on the long wall. That was an option for us. The last gentleman asked one of you guys if you'd like to put one on and wear it. I'd like to go a little farther. We've got low coal there at times. Put one on and crawl under that table for four or five hours, or, to be like a repairman working downwind, put it on and crawl inside the podium for four or five hours like we have to in the shields. That's the facts on those airstream helmets. I would not wear one. We were lucky enough that they did do it with engineering controls. I think what scares us bigger, the most, is if the management decides they can't do it by engineering controls then that's going to be a fall back position for them. If they don't have that fall back position, they'll figure out a way to do it. They always have, and they always will. I hate to see a fall back position such as that. It's dangerous. As he mentioned, you don't have any peripheral vision. It steams up. It was steaming up on him sitting there. If you look, his head is indented right there where the helmet was pushed in on him to keep it tight, so I really think those are a bad deal. I met Dr. Jones out in the hall a while ago, saw her about two years ago. She came and visited our mine, and the first thing she said was do you hate our rules, too? I don't think any of us hate this rule, both rules, but I think we've found a lot wrong with them. I think there's some good in them, but I also think there's some bad. A while ago it was asked of the committee or the panel how many coal miners. No one held their hand up. You mentioned that you had coal miners, experienced coal miners, to draw on their experience in formulating these rules. You've got a whole room full of them here, and that's what we're telling you people now, you know. Believe us when we tell you there's a lot wrong with this. On the VPL, I think that stands for verification of production level. That should have been approached, and I brought this up in MSHA District 8. There's so much that management can do to put the production level in their favor. If they report production level, they might report it as clean coal, but when the inspector comes and does his dust sampling, they'll report it as raw coal. At our mine right now, we're running 27 percent reject, so that's going to be a 27 percent difference in your reporting. We don't have any way. I, as the chairman of the safety committee, or none of my committee men have any way to verify what numbers they're turning in. Are they turning in clean coal and then raw coal? There's another problem. We flat at our mine. We cut a ten foot box cut, and then you move over and slab six feet to get your 16 feet. By their formula, if you don't complete your slab cut you don't count that as production footage. The next shift gets it. So what happens at our place a lot of times, they'll do their box cut and then move over to another cut during a sampling procedure, and they won't count it. The inspector goes by what the section foreman tells him his production footage is. We go by footage, as opposed to tonnage, so we don't know what formula they use, how many tons per foot. Sometimes they say if you have a higher seam, of course, you'll have more tons. They can wiggle that in the process also. They'll say they have lower feet so you have lower tonnage. If they have higher feet, they have higher tonnage. What we need, we need someone there, one of the committee men, who is familiar with the situation at the mine, at any mine, to have input into this, to have input on how much the reporting, over reporting or under reporting. That's really important because, like I said, it could be a 27 percent difference at our mine simply by using raw coal, as opposed to clean coal. Again, we don't need to take the foreman's word for it. I think the inspectors are sent to the mine and said that's what you should do. I think that the inspector should measure it himself and then have a formula to figure out how much coal they've run. I think the committee recommendation, as Tom Wilson said early on today, under Recommendation 16(i), I think that should be followed, and 16(i) says the production level should be 90 percent of the average production of the last 30 production shifts, and MSHA should require the mine operator to maintain the appropriate records. The way I read it right now, and I believe it's going to be the tenth highest out of 30 samples, and then there's something in there which I'd for you to explain about the 67th percentile. Again, I think that's going to get us pretty close to the 60 percent we're at now, but I don't understand that 67th percentile in there. Could you explain that to me? MR. SCHELL: Actually, what we're proposing is higher than the advisory committee. The advisory committee was recommending 90 percent of the average, okay, so you'd have the high and the low average was about in the middle, 50 percent, so the advisory committee was proposing 90 percent of the average. You might want to read those words back just to make sure I quoted. it. MR. SWEETEN: Yes. MR. SCHELL: What we're proposing is higher than the average, so we're going above what the advisory committee recommended. Our statisticians tell us since we're talking of the tenth highest production during a 30 day production shift, that is about the 70th percentile, so if average is 50 percent we're talking about 70 percent, and then we're asking for your comments if that's high enough. We didn't do a good job of explaining that, but I want to focus on that. What we're proposing as the verification level is higher than that proposed by the advisory committee. MR. SWEETEN: Okay. You know, you guys have had accountants, lawyers, doctors and probably an archeologist or two writing these. I don't understand them. I've read them. I've scratched a hole on the top of my head. You know, I've read them four times, and I don't understand them. Luckily we have Joe Main and Tom Wilson and Joe Urbahn to explain some of these things to me, but it is confusing. If I misunderstood that, you know, I apologize. I'll say this in closing. For all of you guys up here and a lot of them out here, it's a job. You guys have been assigned to come up with new regulations for dust sampling and to reduce the amount of dust that we're breathing, but the people like me, I've got 26 years in the industry. Most of us in here have over 25 years. It's more than a job to us. We're fighting for our lives on this. This isn't -- I mean, we're not here to knock everything you're saying. We're here to let you know we're fighting for our lives. We've got people, fathers and brothers and mothers and sisters, dying of black lung or who have already died, and that's what we're doing. That's why we're wanting you guys to take a look at this and to listen to what we're saying and try to take it to heart that we're trying to help out other miners. Someone mentioned a while ago everyone who spoke so far has been a union miner. There's a lot of people out there that don't have the protection that we have, and they're still coal miners. They deserve protection from you guys the same as we do. Thank you very much. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Is Dave Deerman back yet? MS. KUEMPEL: I just wanted to make the clarification that the dust advisory committee recommendation of 90 percent was for the compliance sampling, which is different from the plan verification, as Ron pointed out, so those two really aren't comparable. MR. SCHELL: In an effort not to confuse it again, we are, when we do compliance sampling, we are saying that we would do it at the level we're going into now at 60 percent of average. The question was asked about the VPL, which is the verification. There what we're saying is that we're doing it at a level greater than the average. Did I totally confuse you on that? MR. NICHOLS: Tom Klausing will be the next presenter. MR. T. KLAUSING: My name is Tom Klausing, T-H-O-M-A-S, K-L-A-U-S-I-N-G. Let's see here. I'm getting older. I've got to put these specs on. Before we go any further, I'd like to ask one question on the thing that was brought up just a while ago on the dust. You're saying you're wanting to increase more than what the regs already say? MR. SCHELL: What I'm talking about is the plan verification, and the question was asked for Mr. Sweeten. He didn't quite understand this 67 percentile. The point I was trying to make is when it comes to plan verification, we want that plan to be verified at a high level, and through the discussion today I had the impression that people were under the understanding that we were going to approve that plan at less than the average. I heard comments about 60 percent of the average, 90 percent of the average. The point I wanted to clarify is that when it comes to the plan verification, we want that plan to be verified above the average and significantly above the average. Going back to what I said this morning, to us, the key to protecting miners is to have a plan that works at the parameters the operator has in the plan and at high production. MR. T. KLAUSING: Okay. Thank you. My name is Thomas Klausing. I work in Local 2161. I mine at Old Ben Coal, Zeigler Mine No. 11, Coulterville, Illinois. I've been a local union president for about 20 years. I also have my state miner examiner papers from Illinois, state mine inspector papers, hoisting papers, shot fire papers, mine manager papers. I represent the people that work at the mine. I would like to take the opportunity to speak to the board here for the proposed respirable dust rules. MSHA, the United Mine Workers insists you go back to the drawing board. The proposal is outrageous. When this proposal it was brought up it was supposed to be better, not a take away. The advisory committee is also outrageous. Some of the key points on page 3 and 4 eliminates the entire compliance sampling requirements in Parts 70 and 90 with no replacement rules for compliance sampling, dramatically reduces the frequencies of shift sampling for respirable dust compliance. Mining section compliance sampling would occur only six shifts a year, outby work one time a year. These are not even guaranteed by rule or funding. Increase the dust exposure level above the content in the Mine Act and the current standard. The proposal would allow mine operators to double the two milligrams to four milligrams on a long wall face, while the proposed rule states that the exposed level would be two milligrams, three and one milligram for Part 90 and outby intake samples. MSHA's plans to allow them to reach 2.33 milligrams and 1.26 milligrams. These specific levels were not cited in the proposed rules or the preamble. They were referred in the preamble by a formula. Permits mine operators to replace engineering control with respirator protection or administration control on long walls, which are prohibited by the Mine Act. Enforcement of the MSHA proposal is too fuzzy, and miners may not know what to expect. The proposed rule gives too much discretion to the MSHA inspectors and the MSHA district manager. These are some of the problems that we've had at our place. We have three continuous miners and two roof bolters that are in and out of compliance all the time. With the new proposed rule, we will be running them out of compliance more, but what is compliance? There is none under the new proposal. With the new proposal, there is no rule that MSHA cannot cite the company for being out of compliance. MSHA enforcement is only as powerful as the law gives it to enforce the company, and the company knows this. The United Mine Workers of America thought MSHA was their friend, but this is no friend. We have been after MSHA to get us more involved with the dust sampling for some time. Now, under the new proposal, we have none that is guaranteed. I have worked in coal mines for 23 years, and I enjoy working as a coal miner, and I want to go forwards, not backwards. There was some stuff that was brought up through some of the testimony that I just wanted to bring out that I still don't quite understand. I've read it and read it over, and it's just confusing. Mr. Nichols said a while ago that they're not raising the standards of two milligrams to four. It's only in a certain area. The law now does not cover that. I mean, it says if you're over two milligrams you get cited. If they can't keep it under two milligrams, then they need to do something with it; not put a doggone helmet on him and send him to space. We're not going into space. We're down there trying to work in an environment that is close, closer than sometimes even you guys sitting together, and ladies. It is an environment that there's times it gets frustrating, and with the new proposed rules it's just T totally outrageous. I don't quite understand that. You say that you're not increasing it. No matter how you look at it, it's not in the regs now. To me, you're adding to the regs by increasing it. MR. NICHOLS: You're saying if something can be done and should be done that it will. If there's an engineering control that can be applied to reduce the dust levels below two milligrams, that will be done. Now, your statement about -- MR. T. KLAUSING: It did. MR. NICHOLS: We will. Your statement about increasing dust levels on long wall faces is totally misleading. I've tried to explain that. MR. T. KLAUSING: Well, I think there's a lot of these rules in here that are misleading, and there's a lot of them that we don't understand. That's what we're here to try to bring across to you that we don't understand them. MR. NICHOLS: And we've been trying to explain to you the situation on long walls. MR. T. KLAUSING: No. You just told us that you're planning on taking that individual, and if there is no correction, no way to correct it to get down to the two milligrams or the four milligrams, then he has to wear that until somebody finds out what they've got to do. Is that correct? MR. NICHOLS: That's correct. If there's a -- MR. T. KLAUSING: Now, is that in the regs now? MR. NICHOLS: I think it's pretty well explained in the preamble. MR. T. KLAUSING: Not in the regs. This is something that -- MR. NICHOLS: I mean, you folks have made that point over and over about what ought to be in the rule versus the preamble, and we've heard that comment. MR. T. KLAUSING: Okay. MR. NICHOLS: But what you're talking about here now is the real live situation of either letting somebody breathe dust or offering them some personal protective equipment. If the solution is engineering controls that will be applied, but if that's been exhausted rather than let some miner continue to breathe excessive amounts of coal dust we think that's a viable option. Also, your comment about your continuous miners being in and out of compliance and it would be out of compliance with the new regs. I don't understand that comment. MR. T. KLAUSING: That's a good point there because I got that brought up in here, too. MSHA is only going to be taking six samples, right? MR. NICHOLS: That's right. We're going to be -- MR. T. KLAUSING: There is a thing in there that they would possibly take more. I understand that. MR. NICHOLS: That's right. MR. T. KLAUSING: But I'm talking about legally them only taking up to a minimum of six samples, right? MR. NICHOLS: That's the minimum number. MR. T. KLAUSING: The company takes roughly around 30? MR. NICHOLS: That's correct. MR. T. KLAUSING: Okay. Now, most of our citations that we've ever received is because of the company sampling when they send them in, MSHA reads them, and they're out of compliance. They get five days to get them back in. They know if they don't get them back in the MSHA inspector comes out there and cites them. Most of the time -- I'm not going to say it happens all the time -- when an MSHA inspector comes out there and he takes his, there's not a citation going to be wrote because they do everything according to Hoyle. They take and water the roads down. They take and every time you make a cut you back the miner out. You clean the scrubbers. You make sure all your water sprays are up. Most of the time they rock dust prior to even going in there because they know that they're going to take their dust samples in Unit 3 because it's time to take the dust samples in Unit 3. That's just the way it is. MR. NICHOLS: I think what you're missing in this process is that MSHA is going to ask the operator to put in their plan those controls they're going to use all the time, and we're going to verify that those will work so on a daily basis the mine operator, the safety committee the inspector can look at those plans and see if those controls are in place. If they're in place and the plan has been verified, I think you can make some assumption that you get compliance day after day after day after day is what we're looking for. MR. T. KLAUSING: Yes, but what's to say when MSHA comes out there and does their thing underneath these new regs to get their start in there, you've got your plan verification, okay? You've already worked your 30 days or whatever. Meanwhile, while they was working these 30 days in order to get their quota as far as their tonnage is what you're going by on this, I imagine, they did exactly what I just told you. They didn't run the unit that day. They're sampling in here. They're getting the production on this day here. They've got the unit spotless. They've got everything rock dusted. They don't have to rock dust in there on the shift that day. You've got the roads all watered down, the whole nine years, the scrubbers all cleaned. You've got 110 sprays working on there. You ain't got 45 today, but you've got the full 110 working on there, and then now you're turning around, and we've broke a production record, okay, for that time. We're at high tonnage right now, so that's added in. Now you've got your criteria of your plan verification or whatever, I take it, and this is what MSHA is going to go by their standards, unless I'm misunderstanding this or something. It's the same way. It's the exact same way it is right now. There's ways to get around it, and that's how they do it. I work in a coal mine. I used to be a mine operator. I know how it takes. When you take a dust sample, he should wear it. The individual hangs it up on a curtain where the air is blowing down there. He's not in there getting the doggone dust on that doggone pump. It's sitting up there hanging in fresh air all the time. MR. NICHOLS: Are you arguing for operator sampling or against operator sampling? You know, on the one hand -- MR. T. KLAUSING: I don't have any problem with operators sampling. I mean, they keep continually cheating or whatever. We take our safety committee, which we are a union mine, and, God forbid, I feel sorry for the non-union people that don't have the rights that we have under some of these rules that are proposed here. Any time they take a dust sample since we found out they was doing all this fraud stuff, you know, back in -- when was it -- the late 1990s or early 1980s or whenever that took place. When they started doing that, we started taking cassette numbers. Any time they'd take a dust sample and we'd get the reading back from MSHA, we make sure the cassettes match. That's how we keep track of ours. No, I have no problem with the company doing their own sampling. More power to them. At least they're held responsible for it. They're held accountable for it. Now MSHA is taking the brunt of it, and it just blows my mind. I think that concludes my statement. I did enough patcheting towards you guys and ladies. I T totally sometimes feel sorry for you being up here. I know how it is. You're in the front line. I do appreciate MSHA because without MSHA we would be back in the stone age then. You'd be back down there with no scrubbers or no dust control or no ventilation, no roof control or nothing, you know, but you've got to realize that there is mines that are out there that are still working underneath that, and your MSHA inspectors can tell you that. From the stories that they've told me, you know, they try to go to a property to shut it down, you know, that day so they don't have to inspect it, you know. Why do they do that? There's got to be a reason behind it. The reason is they don't want you in there. We do want MSHA to continue to inspect the mines. We want MSHA to be able to give us a proposal that we deserve, not something -- what really throws me is that you hear so much about waste, you know, and I didn't really get this until probably a few days ago, but this has been going on for 20 some odd years that they've been trying to get a proposal for dust. It just blows me, and I've only been in the mine 23 years. I've listened to the old timers, and I'm sure that you guys have a time or two. And ladies. I don't want to knock you ladies out or anything. They talk about you should have been back there when you didn't have the scrubbers in there, when you could put your hand right in front of your face right there, and you couldn't even see it, you know. Them are the guys that these guys are talking about that are dying because of black lung that the federal government doesn't agree that they have black lung and the companies don't agree to that, you know. They oppose it against them. They were the people. There's people today that are the same way. It's not near as bad, but you still have the dust down there. They don't come out of the mine the way we're sitting here right now. They've got to be getting that dust from somewhere. Where are they getting it? It attacks through their skin down there. I mean, the dust is still there. It's just not near as bad, but we still need the dust control to be able to stop that, and that's all we're asking, to be fair with them and to listen to the people that you're going to hear today. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: J.R. Patsey, UMWA? MR. PATSEY: I'm J.R. Patsey. I'm from Local 1713. I work for U.S. Steel Mining Company, Pinnacle Creek, West Virginia. I've been in the coal mines approximately 24 years. I've worked in the face. I've worked in the long wall. I've run a motor for eight years. I've worked at the preparation plant approximately seven years, and currently I'm a mine examiner floor boss. We appreciate what you're doing for the single sample compliance. We've needed that for a long time, but one of my big problems is this six shifts a year that you're going to be doing your sampling with. We've got a big operation in our mines, and it don't really affect us as much as it would a small, non-union mine because I know at our mines we've got a good safety committee man, and we've got resident inspectors there. We pretty well keep control on things, but these small, non-union mines you've got nobody there to look out for the coal miners. I've been in a few myself. You've got to get down and crawl like this. You've got no ventilation, no rock dust. The roof bolts, they'll send them out with no top, no support at all. It's a bad thing because if you've ever had a brother or a sister or a dad or a grandpa get carried out of the coal mines, you know, because he's dead or if you've ever had somebody die from silicosis or black lung, I have. It's a sad thing. Another thing I'd like to mention is on this outby sampling once a year. We've got a lot of areas at the coal mines with belt haulage. Our mines is all belt haulage. We used to have -- we've got several union brothers that never received benefits, was lucky to have received benefits, you know, 40 percent silicosis, worked on the belts all of their working life. You know, now you're wanting to reduce, you know, to once a year is all you're going to sample the outby. There's a lot more dust in this outby than what people wants to admit to, and it's a big problem. Like at our operation we've got 78 employees at our preparation plant outby on the surface. We've got 41 members on the strip job outby on the surface. If you've ever been outside when a wind storm comes up, you've got 250,000 ton of coal in a stockpile there. It will blow it for miles. I mean, it's unbearable. You can't see. Another thing. I know you've explained it several times today, and it really sticks in everybody's throat really. When I try to explain to the members at our mines these milligrams of what you're proposing now, this 2.3 on your regs on your milligrams there, you know. We've got 2.0. It's there. That's the law. That's what we've got to deal with. You know, if we've got a problem that we need to raise it to 2.3, we need to lower the regs to 1.7. If there's a variance there, they've got .3 there so they can come in compliance with the 2.0. Don't raise it and put us in more dust than what we're already in. I mean, I know I've heard you say it several times today. We're not going to raise it. If you go from 2.0 to 2.3, you are raising it any way you want to look at it. I ain't going to get into the airstream helmet because we've heard it today. I wore one. MR. NICHOLS: I appreciate that. MR. PATSEY: I wore one, and it's been beat to death. The guys is right. You need to stick one on and wear it for awhile. Like our mines, you've got to crawl. You know, we've got a long wall, a 1,000 foot face. The height is probably about like this. You're on your knees all day long. If you've ever gone down a long wall and seen that long wall come by you, you know, you can't see nothing when it goes by. It's pitiful really, you know. Another thing that Rick mentioned there was about the conditions in the mines, you know. You may be running good one day, you know, no rock, no nothing. Then all of a sudden you hit a middle man, nothing but rocks. You know, that quartz, that's going to change your condition, you know, but yet you ain't going to be there but that six times a year. Who's going to be there when us miners is there mining that when we hit that fault and rock. You done gone. You done did your six samples. Nobody is going to be there to protect us. About all the laws we've had today, you know, somebody has had to lose their life for it or it would never become law, you know. That's a fact. You know, I preached at you. You give me the opportunity to sit up here and speak before you. I'm not going to take no more of your time because I know we've got a lot of people that's got things to say, and I appreciate it. MR. NICHOLS: Thanks, J.R. (Applause.) MR. NICHOLS: Larry Pasquale? Larry Pasquale? MR. PASQUALE: Good afternoon. My name is Larry Pasquale. I'm a UMWA member from Local Union 2133 in District 20 in Alabama. I'm also a UMWA District 20 board member. I would like to make a few comments and maybe ask a few questions on the proposal. After reading the MSHA proposed rule on dust sampling and the advisory committee recommendation, I started doing some thinking about other MSHA hearings we all attended in the past through the years of our existence in working in the industry. If you look back at some of the history and some of the testimony, miners have testified that they wanted to have dust sampling programs done by coal miners, not the coal operators, because they didn't trust the coal operators. Miners told the panel at other hearings it was a mistake to continue to allow the operators to do the sampling because the operators can and will falsify dust sampling. If you look at the advisory committee's Recommendation No. 19, it talks about the involvement of the miners and the miners' representatives under the 103(f) walk around rights. I would like to ask the question today to the people out here in the audience if they would rather the miners, MSHA or the coal operators do the dust sampling. MALE VOICE: Miners. MALE VOICE: Miners. MR. PASQUALE: I think that's the answer that a lot of us would like to see. I'm not taking anything away from MSHA, but I think the miners would do a better job to protect themselves because they're the ones in that operation mining that coal; not the operator, the miners. Also, as a district board member I handle mine construction in the district. I also know that in July of 1996, the president of the construction local, Mr. Tim Burshel's testimony to the panel was why there was nothing being down for construction workers. UMWA construction workers do all types of work in and around the mines. Nothing has been written to protect them, especially in the shaft and the slope areas. MSHA has said they will do something at a later date. It's been four years since the July, 1996, hearings. My question is what? If you look at the advisory committee's Recommendation No. 14, it addresses the concerns for the construction workers. Again, I was a coal miner at the Oak Grove Mine in Alabama. Prior to that, I was a coal miner with a U.S. Steel mine, the Maybrick Mine in southwestern Pennsylvania. I have roughly 15 years of underground experience. The rest of my time has been working for the union either as a district rep, a construction rep, and also as a regional coordinator in charge of safety and health in the Pennsylvania and West Virginia area. I feel like I have some background and some knowledge. I do some instruction. I'm a certified MSHA instructor. Also, inducement training. I try to help our people. What I've done Friday and Monday is I've talked to the district office at MSHA in Birmingham and just asked the question how many citations were written for respirable dust at the Oak Grove Mine since August 1, 1999, to the 24th of July, 2000. There was ten citations written for respirable dust at the Oak Grove Mine. One citation was written. The date issued was 9-15-99. The date it was terminated was 10-28-99. That's 43 days. Another citation was written on 10-13-99. It was terminated on 12-1-99, 49 days. Another citation, and this one really bothers me, was written on 4-20, 2000. It was terminated 7-20, 2000, 91 days. The list goes on. I wish I had a copy. I should have brought a copy for your gentlemen, but I didn't. Coal miners today feel MSHA and the coal operators are selling them out by the proposals of the new dust sampling, but enough negatives. Let's talk about a little bit of positive today for a change. If we would all work together, for the health and welfare of the coal miners, a lot could be accomplished. Look at the money being spent having hearings to weaken the dust sampling program. Let's look at the technology that's available by both MSHA and NIOSH. There's good statements made. The technology can be used to monitor dust levels, but it will take government regulations to make it a reality. We don't want to hear another promise for another 20 years. The technology for machine mine continuous dust monitors to provide instant information on respirable dust and record data over extended periods is available and feasible. Read the advisory committee's No. 8 recommendation. It calls for development and use of continuous dust monitors for compliance surveillance and controlling dust. If you look at the gentleman who spoke a little bit earlier, Mr. Barnes, he asked this panel if somebody would want to put it on. No one took the opportunity to put that gear on. Just pick it up, if he wouldn't mind coming up and taking it off and letting one of you gentlemen pick it up and see how heavy it is. It's roughly about 100 and some odd pounds. I picked it up last night. We need rules to protect the coal miners from coal dust, a rule requiring the use of modern technology that's waiting to be used to save poor miners' lives, to protect them from getting black lung. This panel needs to listen to what has been said in all the hearings that we're having now in Morgantown, today, tomorrow, in Utah, and the past hearings and go back to the drawing board and follow the advisory committee's recommendation. Remember, Congress' intent in passing the Coal Mine Act Health and Safety Act is clearly spelled out in the Act's first sentence, "To protect health and safety of the mining industry's most precious resource." That's the coal miners sitting out here because we, and I consider myself a coal miner, hold the operators, the government bureaucracy and the Administration accountable. I thank you for your time. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: William Chapman? MR. CHAPMAN: My name is William Chapman. I am with the United Mine Workers, president of Local 1793. With the machines being used to mine coal in today's modern day mining, there's more dust in the mines today than ever before. In a 30 year span of time, there's been over 55,000 deaths attributed to the black lung disease. In the past ten years, over 13,000 have died from this painful disease. Painful, yes, because you smother to death, or you overwork your heart and cause congestive heart failure. So why would MSHA ignore the advisory committee's recommendation and propose to raise the respirable dust level and reduce the number of dust sampling tests? The proposed changes you all make would greatly increase the miners' chances of being infected with the dreaded black lung disease. We, the miners, who mine the coal that affords 70 percent of this nation the luxury of electricity deserve and demand a safer workplace and the peace of mind knowing that MSHA is working with us and not against us. We urge for more increased and stress dust sampling and a reduced respirable dust level. This is why we urge MSHA to put in place the advisory committee's recommendation, which includes miners' participation, if we're going to end the dreaded black lung disease. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Rickey Kornegay? I probably butchered that name. MR. KORNEGAY: It's close. How are you all doing this afternoon? MR. NICHOLS: Okay. MR. KORNEGAY: My name is Rickey Kornegay. You was pretty close. That's spelled R-I-C-K-E-Y, K-O-R-N-E-G-A-Y. I'm a third generation coal miner with over 26 years working in strip mines, underground and outside at an underground mine. I'm currently serving as a UMWA District 20 executive board member in District 20 in Alabama. My opinion of MSHA's performance through my career in the mines relates directly to a roller coaster. That is, I started out thinking MSHA was one of the best organizations around. Then in early 1996, I seen enforcement all but disappear while the MSHA bosses bragged in the newspapers about how much safer the mines were since they came into town. Then I read the 1996 advisory committee report, and once again I became very impressed at the work that my government was doing with miners. As I read that report, I couldn't help but be impressed by how much thought had gone into identifying the problems and finding the solutions. As I studied the 20 recommendations that the advisory committee had developed, I could actually see how they all fit together towards solving the problems. I normally do not speak on health and safety issues since I normally deal with contractual issues, but since I was elected to represent the miners and after reviewing MSHA's proposed rules, I knew that I belonged at the mike today. A person not familiar with MSHA's proposed rules - -- any confidence in the dust sampling program because, quite simply, MSHA only adopts a few of the advisory committee recommendations, and MSHA failed to follow the complete process of the advisory committee leaving serious problems with these rules. I have several issues that I would like to raise at this time. Issue No. 1. The rules are made to reduce the frequency of shift samples for respiratory dust compliance. This is what the advisory committee recommended. Issue No. 2. The rules do not provide for paid miner participation in MSHA's announced visits. The advisory committee's Recommendation No. 6 stated that during this verification visit, miners and their representatives should have the same pay, 103(f) walk around rights, as they do under MSHA inspections. Issue No. 3. The rules all but fail to mention continual monitors. I must ask what happened to the advisory committee's Recommendation No. 8? Issue No. 4. There was no intent by the advisory committee to do away with all of the operator sampling. See advisory committee Recommendation No. 5, operator verification; also Recommendation No. 19(a) and (b). Issue No. 5. The advisory committee's Recommendation No. 1 states, "MSHA should consider lowering the level of allowable exposure to coal mine dust." Now the level is being raised. I've sat here and listened all day. This I cannot begin to understand because the advisory committee asked recommendations for it to be lowered. It's going from two to 2.3. I don't keep up with all the numbers, but if you go up it's going up, not down. Issue No. 6. The advisory committee Recommendation No. 5 states, "Environmental control measures should continue to be the primary means of maintaining respirable dust levels," and also states, "Respiratory particular equipment should not replace these control measures." I know it's getting repetitive about Mr. Barnes, but you saw him earlier today and heard him speak. I shouldn't have to say any more. To give companies a way out, you would not work as hard to find a solution if you give them a way. If they have a way out, they're only going to work as hard to find the solutions to solve a problem. If you give them a way to wear the airstream helmets, then that's a way out. The flaws in these rules go on and on. I must ask that MSHA go back and fix these rules. I remain very disappointed that MSHA as an agency of my government, that they did not. Thank you very much for your time today. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Shelly Branham? MALE VOICE: He had to leave. MR. NICHOLS: He had to leave? MALE VOICE: He had to leave. MR. NICHOLS: Eddie Castle? Eddie Castle? Reggie Stallard? MR. STALLARD: I'm Reginald K. Stallard, Local 1760, and I was wanting to ask a question about the super section on eight cuts where we've got eight places. One side gets four places, and we get the other four. They require us to bolt one place per shift, and I was wondering why they don't do dust samples, why we're bolting that place in the dust? MR. NICHOLS: George? MR. STALLARD: Anybody? MR. NIEWIADOMSKI: I'm not sure I understood. MR. NICHOLS: Could you just repeat that again, please? MR. STALLARD: See, we've got eight headings, and we're required to bolt one place in the dust per shift. I was wondering why they didn't do dust samples on it. MR. NICHOLS: While they're sampling? MR. STALLARD: Like when the inspectors come. MR. NICHOLS: Yes. They put the plum line where? MR. STALLARD: They don't let us bolt when the inspector comes in the dust for that, you know, one wall. MR. NICHOLS: The big difference under plan verification is that we're going to be sampling full shift. The intent is to get those instances where, you know, normally on the 480 minute sampling shift we might not do it because we don't have total control over what actually happens on a section. MR. NIEWIADOMSKI: Are you saying that the operator won't let you bolt when the inspector is there to sample? MR. STALLARD: No. He pulls us out. Don't go in there he says. See, they're making it so they don't want to get a bad sample. MR. NICHOLS: I don't think it has anything to do with the rule. I think it has to do with the inspector not being able to figure out what's going on here. I don't know. MR. STALLARD: He tells us, you know, when the inspector is there -- MR. NICHOLS: Have you talked with the inspector? MR. STALLARD: Yes, I've talked to him. I forgot his name. I'll have to get that. MR. NICHOLS: Why don't you get it for us. I don't think this is an issue with these rules. I think that's something we need to work out enforcement wise. MR. NIEWIADOMSKI: Where did you say you were from? MR. STALLARD: Cleveland, Virginia. I work at Jewell Ridge Division. That's all I've got. That's all I was wanting to ask you. MR. NICHOLS: Okay. (Pause.) MR. NICHOLS: How about Reggie Stallard coming on up? MR. STALLARD: That was me. MR. NICHOLS: All right. How about William Sawyer? All right. Sawyer? MR. SAWYER: I'm here. MR. T. KLAUSING: While he's coming up here, using that same scenario that he had there just a while ago, under the new regs if an MSHA inspector come in there and did the same thing they still wouldn't let us bolt. Is there anything MSHA could do to cite that? MR. NICHOLS: Well, we keep coming back. I know for a fact that some of you know how to file 103(g)s. I've seen a few of them. MR. T. KLAUSING: That's not the avenue for 103(g). MR. NICHOLS: Well, we used to respond to a telephone call, too. MR. T. KLAUSING: I'm saying the MSHA inspectors are in there while they're doing the test. He's in there for ten hours let's say, if you can even get to the rule for that. They still haven't bolted that place. MR. NIEWIADOMSKI: There's nothing MSHA can do. MR. NICHOLS: We're going to bolt to something. Somebody else made a point that we're pretty well staffed. I think this is a situation that's an enforcement situation that can be worked out. MR. T. KLAUSING: Yes, but it goes along with some of the testimony that has been brought up in front of you that this is the way that management plays the game. MR. NICHOLS: Go ahead. MR. SAWYER: Good evening. I'd like to thank the panel for the opportunity you've given us as the mine workers to come forward to testify and express our opinions. My name is William Sawyer, W-I-L-L-I-A-M, S-A-W-Y-E-R, safety committee, District 20, Local 1926 in Alabama. I answer to Hacksaw. First off, let me know if I make you ill. Tom Meredith said he would deal with me personally if I do. Coming from Alabama, we know him pretty good. I'd like to start off by saying that we had a quarterly safety meeting several years back in Alabama, and there was a gentleman that came down that had a suit on, and I didn't know him. It was during a break we got to talking, and I told him. I said I had heard that somebody from the Department of Labor or MSHA had made the statement that one day you could go to work in the mines and realize that you could return home as healthy as you was when you arrived at the mines. I told him. I said I don't know what idiot that was, but he needs to work in the mines. Well, that happened to be Davitt McAteer, and he's the one that made the statement. As I read these rules, I wondered what has happened to his theory? Now, I took a lot of notes and I've heard a lot of information, and I hope I don't cover a lot of it, but if I do forgive me because there's been a lot presented. As I look through my notes, I know I'm going to miss some. I usually do. As I read this right here, I got this far in it and I was lost. I attended the hearings up in Lexington, and I think some of the testimony up there got lost, too, ladies and gentlemen, because some of it I don't see here. To start with, I'll start in the effective plans and in the verification plans. You know, we like that, but the fact is management is going to have the full responsibility of setting it up to submit it to MSHA. They're going to have the most recent 30 day production with the ten most productive shifts as what they set it up on. During the setting up of this plan, what bothers me is what conditions our people are going to be in while the company sets this up without the UMWA representation there or MSHA representation there. As I understand it, once they submit that they can receive a temporary verification plan or temporary okay to go ahead until MSHA can come out and do a compliance sampling. That could last on to a longer period, which means that they will build out and run under there parameters and under their ventilation until MSHA shows up, which further increases the danger that our people are in this dusty atmosphere. Now, I know how it's supposed to be, and I know once they get it set up and the compliance sampling is done and everything is kosher, the compliance with the plan is the second part you showed up. Each shift all these parameters is to be checked and engineering means or environmental means to make it safer and better has got to be intact and operating. My question is who is going to monitor this plan for effectiveness? I know MSHA is going to do their one sample bimonthly six times a year. During the time of this, who's going to monitor, you know, in between the bimonthly samples at the time they monitor? That's just a question. You might want to answer some of them later. You may not. The way I see it as a working miner, I see them not doing their sampling, but they're still in control of the situation until MSHA comes in on their bimonthly inspection, and I see in this plan when they set that verification plan the UMWA is not allowed to be part of it to monitor it, yet it's for our people's health and safety. That wasn't addressed in there. The abatement. If for some reason MSHA comes in and it's not working and MSHA does an abatement sampling, it puzzles me because the abatement is a pre-warning. We're coming in to do an abatement because you're out of compliance. At that point, and I believe this has been brought up. We're not guaranteed the right to travel with MSHA. All right. The checking of the plant before each shift, which includes the dust parameters, the ventilation and all, that is going to be left up to the company to make sure it's in place. If it's in place, MSHA assumes that the men will be working in a safe atmosphere. Now, I don't throw it critically at you, but if you haven't worked in the mines it changes from one hour to the next. It will change that fast, and it takes the effort of the men down there to create the situation. If they can't, then they have to either come to the safety committee, and if we can't get it corrected then we have the 103, which most of us don't know what that is. That takes out from the previous regs or the regs at the present. At that time a man could request for a dust sample, okay? If I understand this new proposal, now we don't have but one recourse. That's the 103(g). I need an answer to that now. Am I right? MR. NICHOLS: There would be no change in what you want to request. MR. SAWYER: I can 103(g) and get pretty much what I want from MSHA, okay? What I'm saying is prior to that if we had people on the long wall that were being put downwind of the shear and exposed to dust, you know, I've been involved when they've requested a dust sample from the company. We want a dust pump down here now. That's taken out of the scenario once this new proposal comes in. They can request it, but by the regs they really don't have the right for it. We're left up to 103(g) and get MSHA in to do a 103 dust sampling. Am I right? MR. NICHOLS: That's right. MSHA would do the sampling. MR. SAWYER: Right. Okay. That's taken one route away from our people who we're here to represent. Okay. Like I said, if I hit on something that's been hit on forgive me. I won't stay on it long if I can remember it was talked about. All right. After the plan is approved, and what I'm speaking of is not the sampling. I'm talking about after the plan verification is passed by MSHA and everything is supposedly intact. You all will do the bimonthly sampling, but it may not be every bimonthly, okay? This leaves the monitoring of this verification up to management solely. MR. NICHOLS: Well, management, the safety committee, the miners. The plan will be posted. The miners should understand the parameters in the plan, and all these folks ought to be able to check it on a daily basis. MR. SAWYER: Well, that's what bothers me because we have dust parameters intact now, and I travel with our inspectors down there a good bit. I would say eight out of ten times we go to a section and it's a dust sampling shift. That miner will be backed out, and they will be working on the dust parameters on the miner, on the ventilation and all this. I know from my people it's not done. The dust pumps are not handed out prior to the start of the shift. I know that, so that makes me worry because we're putting our faith in manmade installed engineering means that will better the dust if they're maintained. Still, without the dust sampling it bothers me how they can get out. They can get out. They can be checked at first shift and get out before the shift is over. Okay. The outby sampling once a year. That really bothers me, too, because it hadn't been long ago we had ventilation changes that increased the ventilation because everybody has got so much diesel outby. One of our main gripes was, you know, the diesel emission, of course, concerns us, but these diesels run at such high rpms, and most of the exhaust is such a forceful exhaust. It kicks up float dust, rock dust, sand dust, anything, because we run our track next to our belt engine and our separator. The way our mines is, if it ever gets into the intake, which it can because we take our intake down our two entries to our butt sections and our wall, then you're putting that much more dust in there that your verification plan might not cover it, okay, so that's more dust that may be coming in on the sections. Okay. MR. NICHOLS: How would that be different from it coming in in between sampling cycles now? MR. SAWYER: Because right now, well, you don't never -- it's not predestined that they're going to run in. You know, if they do their verification plan on the day shift and that section is not serviced on the day shift -- MR. NICHOLS: I'm talking about the current situation, not the new rule. MR. SAWYER: Okay. The current situation, it's still coming in, but they're taking dust samples pretty regular, you know, right now, but under the new rule you'd be taking one every bimonthly, and this could be happening in between the bimonthly sample, which let me explain. We had a miner section that got out. It took everything we could do to get it back in because the dust from the scoop, every bit of dust that was being emitted outby that was making it in was having a big effect on that pin there. MR. NICHOLS: So your company sampled more than bimonthly? MR. SAWYER: They sampled a good bit on those sections that run close. A good bit because it got to be a problem the way head pinners sawed it for a little while, and then it kind of messed up. They brought another one in, and it got it back into compliance. We had a problem with it for a while. We changed in our top, our material in the top, and it got to be a more dry powdery type top. What I'm saying is that there's situations -- not just these, but there's situations that can make it change just, you know, in a matter of hours, and with this bimonthly sampling, you know, a lot could go on between one sample and the next. Do you understand what I'm saying? MR. NICHOLS: It can go on now between one sample and the next. MR. SAWYER: Yes, but you -- you're right. It can, and it does, but there's samples being taken. There's more samples being taken now, and it's picked up quicker is what I'm saying. The men are exposed to it in a shorter period of time, whereas if it happens on this new proposal it could span out to a 60 day period plus before it's ever detected. The company may not even know about it under this new proposal. That's what I'm worried about. It can happen, and without as much sampling as what the company does, if you take that away and then cut it down to what this new proposal is comparably it's not a whole lot of sampling to what's going on right now. What I'm trying to say is we have a better monitoring system right now than we would under the new proposal. You have a full shift sample, which I agree on, but you have less samples. MR. NICHOLS: But you've got plans that have been verified to work. MR. SAWYER: Right. If they're maintained by the company, which the samples is being maintained by the company now except for MSHA's bimonthly. So you're taking one thing, one responsibility, away from them and placing another responsibility in their hands. You're taking out the dust sampling. This is a verification plan that you all are going to have on record that they're going to maintain. Like some of my brothers said, they'll be maintained pretty much when the inspector comes. You know, you can bet on it. I'm not saying there's no phone calls because I'm around enough to know there ain't no phone calls, but by wind or whatever, by the smell of a federal agent or whatever, I guarantee you they will know something is going on. I've seen it before. Inspectors I've went down with have seen it before. It just happens. Let me go on. I know that's done been hit on. Okay. What weight does the preamble have in the protection of the miner right now in this proposal? MR. NICHOLS: When we -- I probably ought to let the lawyer answer that so I don't get in trouble, but we're looking at what was really intended by a standard, even one that's promulgated years ago. We go back and look at the preamble. Do you want to say more? MR. SAWYER: Make it to where I can understand it. MR. REYNOLDS: Any time in the future when you think of what the agency intended to do in a proposal or in a rule, you always go back to the preamble, which has over the years become more and more complicated. Because of the fact that it was done at the time the agency promulgated the rule, the Courts will generally refer to what the agency says in the preamble because it's very clear that's what they meant at the time they promulgated the rule, so it's almost like if you can imagine just a long series of footnotes to the actual text of the regulation so that when you look at the preamble and you don't understand a particular part of it, you can go back to the section by section analysis or you can go to the background description of the rule, and it will give you the history in why the agency decided to do that. Then it goes into a greater explanation. There's been a greater move to do comments in the preamble because of the fact that the rule making process has gotten so complicated that once you put a rule in effect it's very, very difficult for the agency to do anything to change it, so if you wanted the flexibility in what you're going to do in the future, generally the agency will put more material in the preamble to explain. If you look at the old rules, the old standards that particularly MSHA promulgated in the early 1970s, you'll find there's hardly anything in the preamble. In fact, for the most part it just looked like they copied the statute. I understand all the comments here today. It's not just MSHA, but it's true of any agency, any federal reg agency, that the preambles have become more and more complicated, and there has been a move to provide the material in the preamble rather than in the reg, so it is very important to have that material there, and it is relied on by the Courts to show what the agency's policy would be and what the agency intended to do. That's the effect of it. MR. SAWYER: I can understand that, but me as a safety committee man, I can always take the reg down and read it and pretty well know what MSHA had on their mind. Going back to this preamble, it's kind of like, you know, look back here for a reference, yet this reference is back over here. It's a preamble, true, to the reg, but it's outside the reg over here trying to explain what was to be done in here, which I guess because I'm not a lawyer I can't understand why you don't put it in simple terms in the reg where the people that it's devised for to protect and maintain a healthy and safe atmosphere can understand it. I think that's a big question here today through the whole thing. You know, why has it been written in the proposal where me as Hacksaw, a safety committee man for 275 working miners, would pretty well have to contact a lawyer to explain it to me? MR. NICHOLS: Well, you said you didn't want to plow old ground. That comment -- MR. SAWYER: Okay. Okay. MR. NICHOLS: -- has been made over and over, and we've duly noted it. MALE VOICE: Tom, he ain't mad yet, though. MR. SAWYER: Okay. Let me go on then. MR. NICHOLS: My point is we've got 71 folks -- MR. SAWYER: Right. MR. NICHOLS: -- signed up to testify, and we're on number 26. MR. SAWYER: Okay. I know. I've been sitting back there all day long. Okay. This one has been hit on, too, and I'll just make a statement. We wanted full shift sampling for the miner, but not an abatement sample. We wanted it on the verification sample. Okay. Why are we going, and this has been beat on, too. I'll hit on another topic, airstream. I wore one for two years on a long wall, so they're not nothing new to me. Okay. This is just a little information to try to play down the airstream. Like I said, I'm from North River, and we have a fairly new long wall system, okay? We got into serious compliance trouble on our old wall while our new wall was being built. We hit a stream bed, and the top chain dragged. We had lots of forks and lots of dust. Okay. We sat down. This was already being done. We sat down with the inspector to go over ventilation and all, and I was allowed to sit in with management. There was a couple more MSHA reps there. We kind of suggested we'd do on the old face what was being set up on the new face. This stuff hadn't been built yet. We did, and it got us back in compliance, got us out of trouble. On our new equipment, management finally realized that there is years of experience on their long wall faces and on their miner sections, too. These people pretty well know what causes dust, you know, other than the drum cutting it out of the virgin face, so they allowed our people to go with them, to go to the shield manufacturer in Germany, to the shear manufacturer, you know, to the pump stations, to everybody that was involved and have them set it up the way they knew it would be best. We have everything is high tech. Everything is controlled by PLCs. They had several sprays put on the shields that had never been put on before and did the locations for the shield pullers, and the operators knew that there was dust being generated every time that shield moved. The shield was redesigned where it would allow more of instead of a tunneling effect into the shields, more of pushing air to the face where we wanted anyhow to keep the dust out from the shield line. The shear people realized that all these I guess engineer designs, these dust parameters on the old shear, had at one time worked, but now they were forcing the air back over the handrail onto the people instead of making it over to the face, so they redesigned that and changed that. The water pressure. We had to check with Joy to make sure how much psi could go through the drums without rupturing the cutting motor tubes inside -- and found out that they had been upgraded a long time ago to withstand a whole lot more pressure than we realized it would, so we increased the pressure on the drums. We changed the spray orifices so we could get the mist instead of the volume so we could knock it down. We used a wetting agent, and now we have a long wall that runs really good in compliance. This was pretty much engineering means suggested by the people that worked on it day by day by day, and it worked. There's just a wealth, you know. I don't want to see the airstream throwed in there. I just really don't because I wore it, like I say, for two years. To let you know how good it went down there, when we were first put under the 060, and we were the first one in Alabama, it scared us to death, you know. We thought well, we're going out of business. You can't run under this. Through efforts from the men and company, we stayed in the 060, and it's never been really a problem to us. Of course, we don't generate the dust that some of those mines do, but still we handle it. Okay. A couple more things. In getting to where we are today and where we are hoping to go in the future, the traditional methods, and I'm speaking of the amount of sampling plus we would like to see more, has helped us assess the exposure to the respirable dust and has brought us this far. Under this new proposal under the cut backs on the sampling, it has done away with what I call the traditional methods, and it's also completely forgotten the continuous monitoring, which that's been talked about today so I won't harp on that. Like I said, Brother Barnes had the airstream on. If you pick it up, it feels kind of heavy. If you sat in here for eight hours, it gets uncomfortable. If you get on a 55 inch face on a long wall and got the seal pulled up tight, it makes it almost impossible to function in that get up that he had on. You know, he explained to you a lot of the disadvantages to it. They're there, plus more. Okay. I'll tell you about a situation in our mines, and it's a complete change from what this proposal is to what happened to us two years ago. We changed our are on the faces. We got scrubbers on our miners. We designed the miners and put the scrubber on the other side because of the way we was bringing the air in. When we redesigned it, it put the scrubber point out on the ram car operator's side. They stayed in compliance on dust, but it blew on the rib, and they received big chunks of coal, you know, and the bigger particles of dust in the face. We talked to MSHA about it. They suggested plexiglass. It would last maybe four hours, and then from the pressure of all this material hitting it it would be scarred up so bad you couldn't see through it, so we came up with airstream helmets, you know, to protect their face. MSHA's pretty much direct words is you can use this for protection, but you cannot use it for a means of ventilation or to eliminate a man out of a dusty situation. Now this proposal, and I understand what you said about when you use it, but it's kind of swinging in left field from what was told to us two years ago, which we didn't want to use them for ventilation, but we were told we would not be allowed to use them for ventilation to protect the miner from any kind of respirable dust. Okay. That's it. I've got a little statement I'd like to say or read. As I said, there's been a lot that went on today. We come to hearings like this to express our opinions with the hopes that a panel of your calibre will listen to us, the miners, who have the years of experience and knowledge to testify to you of what would be best for us for our health and safety, whether it be dust, diesel, ventilation, roof control. We now ask you to return to the tables, take into consideration our testimony, our livelihood as it is, and bring forth a proposed rule that we feel and know is put in place to keep us healthy for ourselves and our families. We've always looked to MSHA for help in our continuing fight for a safer and healthier workplace. We now ask you again. Please return to the tables. Look at the miners' testimony and come forward with a rule that we can live with. I thank you. MR. NICHOLS: Thank you. (Applause.) MR. SAWYER: I chew tobacco because this has left a bitter taste in my mouth. MR. NICHOLS: Tom Messer? MR. MESSER: Panel, I was going to speak on that subject Reginald brought up a while ago about -- MR. NICHOLS: You have to come up if you want to speak -- MR. MESSER: Okay. MR. NICHOLS: -- because it doesn't work well with the court reporter here. MR. MESSER: My name is Tom Messer. I work with Reginald up at 1760. He brought that up a while ago about the discrepancies of working in a place where they're taking samples. I was wanting to speak on that. Do you want to hear it? MR. NICHOLS: Is it another -- MR. MESSER: Well, this is elaborating on what he brought up a while ago. MR. NICHOLS: I think you'd be better to take that up with local law if it's a situation where -- MR. MESSER: Well, they're not doing anything illegal. It's just -- I like that term they use -- cheating legal. They're not doing anything illegal. It's just the way they're going about it. There's nothing you can bring charges or anything like that upon. It's just the way they're going about it. Do you want to hear about it? MR. NICHOLS: I think I've heard about all I need to. The situation appears to me if we've got these charges of fraudulent sampling and then we have a whole new set, a discussion about legally cheating, sampling under best conditions, but we will want to argue that this operator program still has some merit. I'm a bit baffled by all that. MR. MESSER: Well, I believe what it boils down to is everybody wants you to sample more often than what was prescribed in the documents we've had. What they're doing is they're kind of falsifying it, but they're not falsifying it, what the operators are doing. I mean, these inspectors come underground. They're not red hats. They can see what's going on. Again, it's not illegal what they're doing. They're taking samples legal, but the boss will have you in cleaner air where you're taking samples. The next day when you go back to work you're right back in the dust. MR. NICHOLS: Well, doesn't that argue for what we're trying to do here? We're trying to establish good plans that work and do the compliance sampling ourselves. MR. MESSER: Yes. We appreciate that, but what we're trying to get is more sampling out of you. MR. NICHOLS: We said that's the minimum. MR. MESSER: Yes. MR. NICHOLS: If we have problem compliance mines or somewhere where we suspect that people are manipulating the system, we would do more sampling. MR. MESSER: Can you empower the inspectors to do that -- MR. NICHOLS: Yes. MR. MESSER: -- if they recognize that they have been cheated on? MR. NICHOLS: Yes. MR. MESSER: Okay. That's what I wanted to ask. MR. NICHOLS: Okay. Thank you. MR. MESSER: Thank you. MR. NICHOLS: Terry Hunter? Okay. Terry, you be ready to go at quarter to 4:00. (Whereupon, a short recess was taken.) MR. NICHOLS: Go ahead, Terry. MR. HUNTER: Mr. Nichols, panel, I appreciate the privilege of getting up here and talking in front of you all. I'm chairman of the safety committee for District 20, Local 1926, the same mines Hacksaw is from. As was said a while ago -- MALE VOICE: Your mike is off. MALE VOICE: Turn it up. We can't hear you. MR. HUNTER: How about now? I'll stand a little closer. I'd like to ask you a question on your sampling on the six samples a year. How many samples would that be each day? Like you come out one day. How many samples would be in a day? You ask different people, and different inspectors give you different answers. MR. NICHOLS: Five, plus the DA near the section. MR. HUNTER: All right. We've got a long wall and two sections. You all would do one section a day, wouldn't you, or would you do one each -- MR. SCHELL: Depending on how many inspectors. MR. HUNTER: Okay. MR. SCHELL: Basically one section a day. MR. HUNTER: All right. The average would be 80 samples a year at that? MR. SCHELL: You've got how many sections? Excuse me, Terry. MR. HUNTER: Two sections and a long wall. MR. SCHELL: Times six would be 30. It would be 90. It would be 90 plus. It would be at least 30 on each of the sections, so you have three sections. That's 90. MR. HUNTER: Two sections and a long wall. MR. SCHELL: Right, so it would be 30 on each of the sections, so that's 60, another 30 on the long wall. That's 90, plus any of the DAs that were near the section like intake air or if you had a DA on a dumping point or something. MR. HUNTER: Okay. MR. SCHELL: So it will be 90 plus. MR. HUNTER: Ninety plus. All right. Last year, in a year's time we had 486 samples. That's your company and MSHA's inspection samples. As Hacksaw said a while ago, like equipment going up the belt line. With the company sampling more often and you all sampling more often, they keep the roadway wetter. They keep the track wetter to keep the dust down. If there ain't as much sampling going on, they'll slide a little bit on their wetting and get more dustier in the outby areas. That's one of the concerns that we have. We're glad you all want to take over the full sampling. I went and got certified on noise and dust sampling where I could watch the company make sure they're doing their sampling right. I guess one of the reasons that we would like to see more sampling than what you all propose because your proposal is that many unless your funds get cut, or you said that would be the least amount. If you had more funding with more amounts, we would be more likeable or more pleased with that result on account of more sampling because the longer your samples are apart it gives the companies a chance to slip by their wetting because we're on that quartz standard. On our long wall we're under a 1.6 standard on dust. On our L-4 section, we honor a .4 standard and our L-90 on the 1.0 standard. MR. SCHELL: Terry, can I ask just a quick question? MR. HUNTER: Yes, sir. MR. SCHELL: Is the requirement for wetting the roadways was in the plan, wouldn't your operator do it every day? MR. HUNTER: Well, it ain't really in the plan. That's something we come up with them. If we keep our roadways down, it would keep our dust from coming up in the sections because our air comes up, and we've been trying to get them to keep it wetter. We've talked to our ram car operators and our scoop operator about wetting their roadways before they run in it to keep the dust down that they was traveling in. MR. SCHELL: But if they need to do that to be in compliance, we pick that up in plan verification. Hopefully we'd have that requirement in the plan so they'd be wetting that roadway every day whether or not they're sampling. That would be our goal. MR. HUNTER: We have a hard enough time getting them to do it now with as many samples as we've got. That's some concern we have on the compliances and everything. On your full shift like on your outby Part 90 miners, you brought your standards up to 1.3 or 1.23 for the legal where you could find it and not throw it out. On Part 90, it doesn't classify the black lung. It would have been better in his benefit if it had been brought down to 1.7. Then if it got up to two it would have been a legal to fine him, and they wouldn't have said nothing about it. It looked like that there's more benefit to the miners and the section if you had went down .3 on each one he sampled. That way when they got up to two on the face, they would have been citeable, or if it had been on the outby and they got above a warning it would have been citeable. Our concern is our mine people for dust if they get in the outby face here. I just made this map up to show you -- I'll let you have it -- the sampling of the company. The company's samples are in blue, and the federal is in red, the samples they took from last year. That was from June 1 to May, 2000. I can leave this with you. You all can have it. Hacksaw was talking about our long wall where we put the sprays on top of the shield and on our jack springs when we let down to move forward. We're afraid on some of these companies that wouldn't go for this where they could put the streamline helmets in they'd go to streamline helmets instead of trying to come up with something to cut down on the dust. The way it is now, if you don't have nobody down there below two percent if they got the right fuse on the airstream they say well, we can't confine it. Let's get it. They could put somebody down there for a little while to use that. That's one of the concerns we got that the companies take advantage because I think many of these companies are going to take advantage of anything they can do, a loophole, because they've got better lawyers than we have, and they understand this stuff better. As Hacksaw said, you all wound up talking about your own self, your own shift examiners of the dust parameters. That's one thing that we rely mostly on the foremen on the sections and the men when you all ain't there. By working, you know, they're trying to get out the coal. Sometimes they won't make a check on that. If you go down to federal, like Hacksaw said, any time you go to federal eight or nine times -- eight times out of ten they've got the equipment back working on the spray or something, so they know if they can get at least 60 percent of the coal production that sample will be reliable on the production. That will cut down because nowhere in your sample do you ever see 100 percent of production. Every sample you see, the production is down the least they can get close to that amount to make them legal. Every once in a while they misjudge and a sample gets throwed out because it didn't make it. If they all have a belt go down or take an adjustment up on the take up just to lower the production sample on that shift. That's all I have to say. MR. NICHOLS: Thanks. (Applause.) MR. NICHOLS: Okay. Gary Tramell? I passed over him earlier. There he is. MR. TRAMELL: Yes. I'm ready. MR. NICHOLS: Are you Hacksaw? MR. TRAMELL: No. Don't even call me that. (Laughter.) MR. TRAMELL: Those are nasty words. Okay. I'm Gary, G-A-R-Y, Tramell, T-R-A-M-E-L-L. I've been hearing you all talk about the airstream helmets, and I'm not going to go there. There's only one thing that I want to tell you is that for a fact that for dust control engineering controls are the best way that you can go, not airstream helmets. The reason I know this is because at our mines, Jim Walter No. 5 in Alabama, we have had MSHA give us a plan. Our approved plan that we have on our long wall face is downwind exposure times. You all might be familiar with that. The first month that we took the sample, in the very first month our miners was only allowed downwind one hour. That gave our management an incentive to do better, and due to that incentive they started adding water, using engineering controls, more sprays, washing tops of shields. They went to a big really reduction of dust, and they tried real hard. At the end of six months, our miners was allowed to go do for five to six hours on that same face, and that just goes to show you that engineering controls is the best way to reduce the dust. I can be done. I heard Hacksaw mention it. They got about the same thing with their mines. It's downwind exposure timing. He just didn't go there with it, but engineering controls is what I would like to see you all really think about and try to -- you see my friend with the helmet on. That weighs a lot in those faces. If you don't have nothing on by the time you step over those relay bars and the toes of those shields for about 180 of them, by the time you walk that 800 foot your legs are just completely gone with nothing on, so if you was to wear all that weight you'd tell by what your legs and your hips are going to feel like by the time you do that six or eight times a day. There was some questions. You come up with in your introduction, Mr. Schell, you said something about the -- let's see. That MSHA was going to give usa good plan that worked every shift. I believe I heard you say that. MR. SCHELL: Yes, sir. MR. TRAMELL: Right away I was going well, he's kind of talking my language about every shift. My language is continuous monitoring, and I would like to see MSHA get into continuous monitoring and getting real serious about continuous monitoring. That's something that engineering controls. We can make it work with water. We can make it work with continuous monitors. The biggest question that I've got is out of the last ten or 12 years that we've been developing the technology, why hasn't MSHA went further with that technology to get it to a shape to where we could use that in a coal mine? Therefore, you cut down on your MSHA inspectors, from what I'm understanding reading all those documents that Tom got me to read. MSHA had a problem getting enough people to do sampling, and if we could get continuous monitoring in the mines then that would help MSHA come up with a better control. I'd like to see that. Could you comment on why MSHA has not pursued or even in this proposed dust plan I see that in those hundreds of pages that I helped Tom Wilson read I seen where you all in your committees you touched on those subjects of continuous dust monitoring quite a bit, but yet in these proposed regs it's not there? Could you expand a little bit on why you don't go there? MR. NICHOLS: Well, we have pursued it, but we don't think that we're there with useable technology. MR. HEWETT: If I could expand upon that? MR. NICHOLS: Paul? I'll let Paul with NIOSH talk a little bit about that. MR. HEWETT: Can you hear me? MR. TRAMELL: Yes. MR. HEWETT: Okay. My name is Paul Hewett. I work with NIOSH in Morgantown, West Virginia. In the development of the machine mounted continuous respirable dust monitor, it was really started in the 1980s and on into the 1990s and was taken over by NIOSH whenever the Bureau of Mines was abolished or when the Bureau of Mines joined NIOSH. We can take it with that program and have found that in the laboratory the instrumentation that was decided upon and was targeted for use in the 1980s, which involved direct on-the-filter sampling, something that would get -- the hope was to get something that would give you a closer compliance sample. It was useable or worked fairly well in the laboratory, but in the field test has just not proven to be as reliable. Reliability is a key issue here. Instruments would fail within days or weeks after installation, and you must appreciate mining is a fairly harsh environment. Mounting a machine mounted unit on a continuous miner or on the shear or somewhere along the pan line or whatever -- you know, if it was on a shield that's a different issue. If it's on a shear or a continuous miner, it's a very, very rugged environment, and they just haven't survived. Then there's the other issue of extrapolating the measurement from a continuous monitor mounted somewhere in by the operator and relating that measurement to the operator. You're not going to have the same degree of accuracy you would have with a personal respirable dust monitor, you know, your pump and cyclone. For that reason, these measurements are of doubtful use in terms of compliance, but it might give you an indication of whether or not controls are, you know, with too much dust and not enough ventilation or not enough water sprays. We made the decision to suspend research on the machine mounted continuous respirable dust monitor that was envisioned that started out in the 1980s and concentrate efforts on another more reliable or a more promising technology. We have some very bright engineers at the Pittsburgh research lab that formerly worked for the Bureau of Mines, now NIOSH, that have come up with some personal respirable dust monitor technology that they're working on and feel would give operators and minors indications of what the exposure currently is and the shift measurement. You know, at the end of the day you have a measurement rather than waiting ten days, but these are still in development. The technology is well, we can put a man on the moon, and we've only done that a couple times, incidentally. It's been a long time since we've done it. This is almost as difficult. A methane monitor is simple by comparison. The gas passes into a stationary sensor. Here we've got moving parts, computerized sensors, and it's just not up to snuff whenever it comes to the mining environment. So while the dust advisory committee can say look, it would be great to continue these readouts, getting there has proven very, very difficult, so we've decided to concentrate efforts in more promising directions and are hoping to have something else fairly soon on that, but it's not available let. MR. TRAMELL: Thank you. Being that the situation is that we're kind of at a stalemate at technology with the continuous monitoring, in this plan the dust control plan, you all don't hardly mention it. When you do get that technology, will you bring it forth, or will you put something in this plan that might govern when it comes into some that is useable? MR. NICHOLS: I see that as being something for a future rule making. MR. TRAMELL: Yes. Okay. I've heard everybody. I'm not going to take a lot of you all's time, but I just want to ask you one more question. MR. NICHOLS: Okay. MR. TRAMELL: Being that all of us coal miners has come down here to honestly tell you all that the plan that you have now, the dust control plan, is something that we really have some problems with and after all the testimony, and I know we hadn't gotten through yesterday, but I want to ask this question now to see if we've got to keep you all here another couple of days. Have we said anything to you all as a panel that has made you think about changing some of these plans from the original ones? Have we said, the people that you heard so far, anything to make you change your mind? Okay. I'll have to go on. MR. REYNOLDS: I'll be glad to answer this. Part of the reason we're here is to get your comments, and part of the proposed rule process is to do just what we're doing here. We will always consider your comments when we're revising upon, you know, -- I mean, when we move toward a final rule or maybe even a re-proposal, but I think we have to take everybody's comments into consideration when we're doing that. Whatever we do, we'll fully explain it in our favorite topic, the preamble, of the next document. MR. TRAMELL: I've heard that. MR. REYNOLDS: One thing I did want to ask you while I've got the mike is on page 42138 and 42139 of the preamble there is a discussion of what we would expect an operator to do if they were willing to work with us on continuous mining monitoring technology and what things we would expect them to have in their plan, so there is some material in there. You just didn't find it in the preamble. There is a discussion of other things that Paul talked about in the preamble as well. It's on 42138 of that big document. MR. TRAMELL: Okay. Thank you. MR. NICHOLS: That was not a no. We need to kind of do a reality check here. We have 71 people signed up to present comments. We just finished with number 25. I was wrong earlier. I thought we were a little further ahead with number 25. We don't want to limit the comments of anyone. I do appreciate the fact that people are starting to recognize we've spent a lot of time on certain issues like airstream helmets and the requirements are in the preamble and not in the rule, outby sampling and some other things, and people are starting to not be repetitious on that. I appreciate that. I think to get through the list of 71 people that are signed up currently, and I don't know if we'll get any more than that, we need to work later tonight in an effort to try to finish up tomorrow, so I'd like to run until at least 7:00 and see where we are then. Now, at 4:45 we'll need to take a break, and the motel needs to rearrange this room a little bit. We're going to lose part of the back so we'll have to move up front, but I don't see any way of getting through this without working late at least tonight, and then it's probably going to take a good chunk of tomorrow to get through it, but to the extent you can if we spend a lot of time on something how about hitting it a lick and then move on? I'd appreciate that. MR. T. KLAUSING: Are we going to get -- MR. NICHOLS: Say that again. You can't make a comment without coming back to the table. You've already been up here once. You're No. 72. MR. T. KLAUSING: It was a wisecrack. MR. NICHOLS: That was, too. Okay. Edmond Cook? MR. COOK: Edmond Cook. That's E-D-M-O-N-D Cook, and I work for Peabody Coal Company in West Virginia. I've been a miner for 31 years, and I just want to take a few minutes. I want to make sure. There's a lot I don't understand about it, but I was glad to see, you know, talking about the simple sampling because I know there's a lot of discrepancy that goes on when you just take one or two people off a section and sample them. There's people that will do anything with these dust samples in order so they don't have to wear them again. You talk about the long wall. Our mine is a long wall mine, and it is in compliance with the dust standards. They had the helmets. The men didn't like them. They buckled down, you know, and said hey, there's other ways that we can do it without having to wear the helmets. A lot of things worry me about this sampling stuff. In the industry in the last few years there's different work schedules. I'm just wondering if MSHA is going to have a weekend holiday crew because we've got a lot of people that work at our operation that never works during the regular work week. They only work Saturdays and Sundays, and so I just wonder if that's going to leave those people out there that will never be sampled or never see an inspector out there. In our operation, just recently in the last week or so they drove a tunnel from our rock prep plant through the mountain to the Harris operation, which is in the Maitwan seam, and they had to take approximately four foot of top. We see in the paper that the mine foreman pleaded guilty to dust fraud. For 18 months, those guys was in dust from where they was cutting top, that rock and stuff, to find out that he'd been hanging the samples, these cassettes, in the intake. I just kind of wonder where was everybody at for 18 months? When we took that over under our jurisdiction, that about as filthy and dirty as any place you'd ever seen. Like I say, last week he pleaded guilty. Then you go back, and you're talking about this dust sampling stuff. In the past six to eight months, the increase when you come home from work. You stop in the convenience stores and stuff. If you didn't know better, you'd think you was in the '50s. The men coming out of these mines are as black as they can be. There's something wrong somewhere because, you know, when the dust sampling first started you seen it started getting better. The men wasn't near as black and dirty as he was in the '50s, but now you see people coming out of these mines that, like I said, if you didn't know better you was in the '40s and the '50s. Something is wrong somewhere and stuff. Like I say, any step. We need you all's help, but I think the company needs to be held responsible, too, because you people ain't going to be there all the time. It's a proven fact. If these companies can shed the responsibility just to one agency, this thing ain't going to work. I know what black lung does. I had the misfortune of having sat a couple years ago and watch my dad take his last breaths due to black lung. That is a tough thing to watch your parents pass away from black lung. I would just ask that you take this thing and go back and listen to what the advisory committee has recommended. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Russell Thompson? Russell Thompson? Chuck Wilson? MR. WILSON: I'd like to thank you for the opportunity. My name is Chuck Wilson, C-H-U-C-K, W-I-L-S-O-N. I'm the local president at Council's Red Lake Mine. It's Local Union 1545 in Sesser, Illinois, District 12. I'm going to be short and sweet. My question is in our recommendations, the advisory committee recommendations I should say, called for full rights of paid participation in every phase of the respirable dust sampling, verification and training program. That included all compliance sampling, MSHA and operator verification sampling, handling of continuous dust monitoring devices, which we've talked about that, and extraction of data and training of miners. You know, that's recommended in No. 6, 16(a), 19(a), (b) and (c). Okay. My questions are I think we've already determined today that notified visits are not determined to be an inspection. Am I correct? MR. NICHOLS: No. MR. WILSON: Okay. Preannounced? Are preannounced? MR. NICHOLS: I think what we said is any sampling as part of this rule, miners would be entitled to walk around pay. Is that right? MR. WILSON: Okay. Any sampling under that rule? Okay. How about the miners' right to be a walk around like during the company's verification process? Now, is it insuring that we have our walk around rights then also? MR. NICHOLS: Yes. MSHA would be doing the verification. We'd be doing the sampling. MR. WILSON: See, it was my understanding that when a company -- if they're devising a plan, they also would sample to see if their plan is going to work. Am I correct? MR. NICHOLS: They may, but this rule doesn't require it. MR. WILSON: It doesn't require it? MR. NICHOLS: No. MR. WILSON: Okay. I was assuming that they would. Okay. Are our rights covered under that to be with the company basically when they're doing their verification sampling? MR. NICHOLS: No, I don't think they would be. MR. WILSON: Okay. That was a concern there, you know, as far as what the advisory committee, you know, had requested. Also, I have another question. I think Edmond kind of hit on it. If we're getting ready to go on the alternate schedule, Appendix C, in our contract and we're also, you know, going to the ten hour shifts and also they're going to have 12 hour production shifts on Friday and Saturday. How is that going to affect the dust sampling like when a person is in the dust for 12 hours? It's definitely not going to be your eight times 60. MR. SCHELL: I think there were three kinds of sampling that we're talking about. MR. WILSON: Yes, sir. MR. SCHELL: The verification sampling that MSHA is going to do, during that verification sampling that will be full shift sampling. MR. WILSON: Even if it's 12 hours? MR. SCHELL: Yes, sir. MR. WILSON: Okay. MR. SCHELL: The second type of sampling is compliance sampling, the bimonthly sampling. The proposal is that that sampling would be 480 minutes. We've asked for comments if it should be longer. MR. WILSON: I think it should be myself. Like myself, Tom and I, we'll be working ten hour shifts. MR. SCHELL: Okay. That's the kind of comments we're soliciting. MR. WILSON: We'll be on tens, but they will have two 12 hour production shifts on Saturday and Sunday, one each day, as in our tentative plan for what we're going to go to when we go to the alternate schedule, so they will be mining 12 hours. I'd like to request full shift compliance sampling because realistically that's the amount of dust that we'll be in is ten hours or more because we'll have changing out at the face likely, so we're looking at ten hours and 45 minutes, and then, of course, there's no changing out at the face on the 12 hours. They can't make them work past that, but still they will basically be in the dust close to 12 hours. MR. SCHELL: Just to finish that, -- MR. WILSON: Yes, sir. MR. SCHELL: -- abatement sampling if they were out of compliance. That also would be full shift. MR. WILSON: Okay. We're just requesting, you know, the full shift regardless of the amount of time, tens or 12s. I would also urge you if possible we're requesting the right to maintain our walk around rights when the company does their verifying also. I'm not going to hit on the airstream helmets because I've tried to wear them before, too. They're bad. Thank you very much. I appreciate it. MR. NICHOLS: Thank you. (Applause. MR. NICHOLS: Is Russell Thompson back yet? Okay. He's history. Max? Max Kennedy? MR. KENNEDY: Mr. Chairman, members of the panel, my name is Max Kennedy, M-A-X, K-E-N-N-E-D-Y. First of all, I live in the State of Virginia. I hold a first class underground mine foreman certification, among other Virginia coal related certifications, and I want to mention this one panel because later I'll refer to it. I've served on the MSHA panel under the direction of Jack Tysdale to provide input on clear and gob ventilation systems training modules now used at the mine academy. I've been involved in several coal mine explosions, mine fires and too many fatal investigations. For the past ten years, I've been appointed by three successive governors to serve on Virginia's Coal Mine Safety Board. That board is the regulatory work group for the Department of Mines, Minerals and Energy for the development or revision of any of the state's regulations. That poses -- it's similar, but different, because it's state. It's not federal, but in rule making the rules that we develop are similar with public hearings. We consider all comments and address those comments in a rule making process. I won't hit on that again about the advisory committee. I don't understand why. That's between you and the outcome. The reason I mentioned the panel that developed that training model for bleeder systems and gobber is it leads me to a question, and I don't think Ron quite answered that question as far as one an operator exhausts all engineering administrative controls for bringing a long wall in compliance below the two milligram standard, he can petition the Administrator of Coal for the interim use of PAPRs. Now, in your commentary it says the effectiveness is in dispute as far as testing that's been done at lower velocities versus velocities that are above 500 feet per minute. Is that clear? Do I understand that they are more effective in lower velocities, and once you get to 500 feet per minute then that was the decision that you all signed, the protection factor of two? Okay. What about the extreme velocities that was testified here today of 2,000 feet per minute? Is that going to be still a fair protection factor for that unit? MR. NICHOLS: I don't know. MR. KENNEDY: Well, let me rephrase that. Let me rephrase that. Are you going to accept or approve those devices at those levels of velocities? It isn't clear in the preamble commentary whether you will or whether you won't. It only mentions the 500 feet, and then it's silent as to whether or not you will or you won't above that. MR. SCHELL: We would. They've been determined to be effective above 500 feet for the protection factor of two. Max, in reaching that protection factor of two we factored in raising the shield of velocity, so the way this proposal is written if you had exhausted all engineering controls for those workers working downwind of the 044, they could go to either administrative controls or PAPRs. There was nothing in this proposal that limited, put an upper limit, on PAPRs because of the velocity. MR. KENNEDY: It's still unclear in the commentary. It insinuates that the approval was based -- you know, because of the high velocities, it just says they're effective up to 500 feet per minute. It doesn't -- to me, you know, that's what I'm reading. I don't know if I'm confused. MR. NICHOLS: Did you want to comment on that? MR. KENNEDY: What my question is is will you approve them no matter what the velocity is? MR. NICHOLS: We don't know. MR. KENNEDY: Okay. MR. NICHOLS: Let's talk about it. MS. ROPER: If you look on page 42137, we talk about some of the summary statistics for some of the studies that we used, and we do talk about 1,200 feet per minute, 1,400 feet per minute, but we can look at the upper values because there were higher velocities that were observed in the studies with respect to estimating the protection factor. We'll address that issue. MR. KENNEDY: So that means that you will if everything is exhausted and they can't get below the two milligrams? Then you will consider any velocity? MR. NICHOLS: I think that's right MR. KENNEDY: Okay. I think you have solicited for comments on that protection factor, but, first of all, I'd like to know how you arrived at two when there were testing done. You know, you still -- it mentions the highest was I think she said 1,400 feet per minute. MS. ROPER: That wasn't necessarily the highest. That's how we chose to characterize it. MR. NICHOLS: Do you know how we arrived at that? MR. SCHELL: No. MR. NICHOLS: Is your question how we arrived at the two? MR. KENNEDY: Yes. You know, I want to comment. It says you're soliciting comments on that number for the protection factor. MR. NICHOLS: Yes. MR. KENNEDY: I'm saying it's too high at two because of the higher velocities. MR. NICHOLS: Does anybody know how we arrived at the two? MR. NIEWIADOMSKI: The basis for us selecting two is explained in here, and it's basically a factor of safety built in. Based on the best information we have, we decided we're going to limit it to a protection factor of two. It was based on the highest velocity, so all the data that we've had, all the studies that we've done. Now, you're going to hear others indicate that there should be a much higher protection factor, but we decided we'll go with a factor of safety with the lowest, which is two, and that's based on all the data that we have, okay? MR. KENNEDY: I'm still -- MR. NIEWIADOMSKI: So it's ten times lower than what NIOSH is recommending. MR. KENNEDY: Well, the high level -- the testimony here today was that a long wall in my area from Danny Sparks was 2,000 feet per minute down that long wall. The commentary doesn't mention velocities that high for a protection factor of two, and I'm asking that question. Does two fit all, all the long walls out there? My assertion is when you ask for a comment on that protection factor, I'm saying that you can't fairly, and you're saying of this best evidence that you have, assign any protection factor until you have the data and the figures for the higher velocities before you can do that. MR. NIEWIADOMSKI: Max, that's a fair comment. We'll look at that. I can tell you what we did was summarize that data. We'll go back and take a look at that data in light of your comment. MR. KENNEDY: There is one thing that I'm glad, and really I'm really not glad, but if you decide to proceed with this rule as written and you do have this provision for PAPRs and you assign a velocity factor or protection factor and you limit that and only long walls with lower velocities will be given the opportunity to apply for this, then you may create an incentive for long walls that now have complex bleeder systems that maintain pressures on the face line to control the methane and the gob to go with lower velocities on that face to gain this approval, which will create another monster in that gob as far as ventilation goes. So don't, you know, create a hazard for methane build up by creating an opportunity for an operator who may manipulate the system in order to gain this approval without utilizing all administrative and environmental controls. That's a point I need you to understand. I'm not going to dwell on what's been testified to, and I don't want to take up a lot of time of the miners here that do have concerns. They sincerely ran across those concerns as they did before the advisory committee, so this is the second testimony that they've given on the same issue. It's still unclear to me and also to a lot of the miners in the room of some of the answers given of the questions that they asked validly, and that was one of the questions the answer that was given was about the verification production as far as the percentage of the production for the verification sample was higher than the recommendation made by the advisory committee. That is what I perceived the answer to be for that question that was asked. Can you clear that up for us so that we all understand that? MR. SCHELL: I'm going to try, Max. MR. KENNEDY: Okay. MR. SCHELL: I think part of that is probably my fault for confusing production level during compliance sampling with the production level during verification sampling. What we are proposing for compliance sampling is 60 percent of the average. Right now operators use 50. We use 60. What I was trying to say is that when it comes to verification sampling, we are looking at a production level that is significantly above the average. We are not looking at 60 percent of the average or 90 percent of the average. We are looking at a number that is above the average. Now, to try to quantify that, if you were to have a continuum of zero percent to 100 percent and let's say 50 percent was the average -- MR. KENNEDY: Okay. MR. SCHELL: Okay. On verification sampling, we would be looking at the 70 percent level, not the 100 percent of the 50 percent level. MR. KENNEDY: Okay. I thank you for making that clear, and I hope that that clears it up for the rest of the miners here. The other question and the other answer. This horse has been beat to death today, and that is the 4.0 milligrams. You've stated that this is not a 4.0 milligram standard, but in essence it's a 3.9. MR. NICHOLS: What I said was it's not a 4.0 standard for the entire long wall face. MR. KENNEDY: Right. Right. MR. NICHOLS: That's the impression you get of hearing the comment. What I said was that you're looking at the protection factor for the miners. For these miners that are working downwind of the shear operator, it will protect up to four milligrams. That's a far sight from saying we're going to just carte blanche raise the dust standard four milligrams. Let's say somebody is overexposed at 2.7, and there's absolutely no other way to get it down to two. Well, that's not a four point standard. That's not a -- the airstream helmet would protect in that case, but it wouldn't be four milligrams. Do you understand what I'm saying? The protective factor of the airstream helmet -- MR. KENNEDY: And I think that's still in question as far as that number, as far as the velocity. MR. NICHOLS: Well, wait a minute. You're talking about something different there. I'm talking about -- MR. KENNEDY: If you do assign that to that -- MR. NICHOLS: Yes? MR. KENNEDY: If you assign to the protection factor -- MR. NICHOLS: Right. MR. KENNEDY: -- then in essence if they say that I did all that I can do and now I'm going to submit this to the Administrator of Coal, and if that number is two and you decide it's two for all velocities then in essence in the interim while the operator continues to demonstrate that he's working on his administrative controls, he's working on his engineering controls and then he utilizes the PAPRs, then he does have a 3.9 milligram standard, and if he doesn't exceed to the 4.0 he won't be cited. If he is 3.9 when sampled, when compliance sampling, he won't be cited, as I understand this. This is a 3.9, and he is in compliance. MR. NICHOLS: Well, that's correct, but you can't take that and make a carte blanche that MSHA is raising the dust standard to four milligrams on the long wall face. MR. KENNEDY: For those long walls that have applied and gotten approval for those persons working downwind of the shear -- MR. NICHOLS: That's correct. MR. KENNEDY: -- they are and will, if this is a final rule, with that number two protection factor assigned to that airstream helmet then that individual, his working environment is and can go up to 3.9 -- MR. NICHOLS: That's correct. MR. KENNEDY: -- and be in compliance. MR. NICHOLS: That's correct, but a lot of the testimony was just open ended that MSHA is raising the dust level to four milligrams on the long wall face, and that's not correct. MR. KENNEDY: I think that everybody understands what was said just then, and they understand that individual on that long wall, his exposure will be increased, but he'll have a protection factor if it's two. MR. NICHOLS: Only after all the other controls have been exhausted. MR. KENNEDY: Okay. MR. NICHOLS: All right. MR. KENNEDY: Now, will all available data be gotten to these operators to utilize these engineering and administrative controls, all data that is present and in the future before such approval is gained such as water infusion if they don't water infusion at this time on the panel, such as wet heads on the shear drums? Will those be incorporated or required prior to the extremes as the Mine Act says that those are time tested and proven? Will that occur? MR. NICHOLS: Well, yes. We've put together a list of controls. We've circulated it for -- MR. KENNEDY: It says all feasible. You know, this was printed. It's time tested proven, scientific data, okay? It should be incorporated prior to any approval that all methods should be exhausted prior to approval of respiratory protection, just as the Mine Act says. Am I right, or am I wrong? MR. NICHOLS: Well, that's what the rule says that all feasible engineering controls shall be exhausted. MR. KENNEDY: There's one other thing I want to clear up, and then I'll hush and let the miners speak, and that is verification sampling and 103(f) rights. You're saying that miners will be afforded 103(f) rights when MSHA comes and does verification sampling. What guarantee that they will have those rights and they won't be challenged and they won't be stopped from traveling with MSHA? MR. NICHOLS: Well, it would be our intention to put it in the rule and also, like anything else, I mean, we'd issue citations. Anybody got anything different? MR. KENNEDY: The last thing I'll say is this is the only part that an ALJ looks at when an operator contests a citation. This they throw in the trash, so whatever your comments are, they only look at the rule, so when you go back whatever the rule is going to be, that's the only thing a miner can hang his hat on. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Do we need to break, Pam, and let them rearrange the room? MS. KING: Yes. MR. NICHOLS: Okay. Let's try to be back at 5:00. (Whereupon, a short recess was taken.) MR. NICHOLS: Okay. Let's get started back. Is Jim Brackner here? Larry wants to make a comment on one of my comments. MR. REYNOLDS: I just wanted to me, and Max Kennedy is not back yet, but at the end of his discussion we had he was talking about the guarantee that people would have walk around rights for all types of verification sampling, verification sampling, abatement sampling and compliance sampling. In the preamble of the rule, it was our intent in the way that we structured the reg that it was MSHA's interpretation that walk around rights would apply for all these types of sampling. It's on page 42134 of the preamble. There's a footnote where it says that based on our guidance and our interpretation of the statute that's what we had intended in this rule making. I just wanted to make clear that, and Marvin reiterated that, it is something that we will consider in developing the final rule that might be more appropriate to put that into the text of the regulation, but we were going to hear the comments from everybody that would be interested in that, you know, at the rest of the hearings and also the comment period. I just wanted to preface those remarks with that. MR. BRACKNER: Okay. Mr. Chairman, members of the panel, I am Jim Brackner. That's J-I-M, B-R-A-C-K-N-E-R. I work for Jim Walter No. 4 in Brookwood, Alabama in various classifications, 20 years. I'm also a section committee man for Local 2245. I'd like to voice my concerns that even though the preamble states the miners' reps will have walk around rights during the sampling, thereby increasing miners' confidence in the dust sampling program, the proposed rule contains nothing that provides the miners' reps with increased rights during the sampling program. I feel that the miners' reps should be afforded the opportunity to accompany MSHA any time they're on mine property and suffer no loss of pay. It is part of the miners' reps' responsibilities to aid in inspections. I've seen times during sampling when someone would bump an equipment operator out for lunch, and instead of leaving the dump pump with the person at the controls the operator would take the pump to the dinner hole. I've seen times when sampling long walls when someone would be working near the tailgate downwind of the shear without the 060 pump. If it had not been for the miners' rep calling the inspector's attention to this, accurate samples would not have been collected during the shifts. As a miners' rep, I've spent enough time on MMUs when they're not being sampled to know and to be able to inform the inspectors when the unit is running under sugar coated conditions. There have been times in the past when inspectors doing the sampling will bring -- they did not have AR cards and were not at all familiar with the ventilation plans. Management knew this also and would have taken full advantage of it had it not been for the miners' rep. Also, the miners' reps can be a valuable link in communication between fellow miners and MSHA. Yes, it would increase miners' confidence in dust sampling programs to a company, not only MSHA, but could also be present and assist the operator in verification sampling and in the training of miners as suggested by the advisory committee. The miners' rep participation in the dust sampling program would help to insure that all aspects of the sampling program are being carried out properly instead of just being mimicked. After reviewing the proposed rules, it's very plain that the goals of decreasing exposure, stopping black lung and saving lives don't seem to be as important to some people. I'd like to take this time to urge MSHA to utilize one of the most effective dust controls ever. That's the coal miners and their reps. It would also be our intention and I will also ask that MSHA go back and increase the sampling in the proposed rule, guarantee the rule with lasting funding and to take the discretion out of their proposals. Mr. Chairman, back to the statement you told Mike earlier that it would be our intention to put that in a rule. Please stick by that statement because we want to see it. MR. NICHOLS: Keep in mind, when I speak of a rule, I speak of the whole package. I'm talking about the preamble. I did not make a commitment to you to put it in the rule. It is a commitment that will consider that. MR. KENNEDY: Your statements -- MR. NICHOLS: I know. MR. KENNEDY: Your statements -- MR. NICHOLS: As quick as it came out of my mouth, I knew I was going to hear it. MR. KENNEDY: It would be our intention to put it in the rule. MR. REYNOLDS: I just wanted to make it clear that, you know, because of the nature of the rule we would accept comments from everybody, and then we will address it in, you know, the next document, whether it be a re-proposal or a final rule. We certainly will consider everybody's comments on that issue. I just wanted to make it clear it was our intent when we put this discussion in the preamble that because of the nature of the way we structured plan verification and the compliance end point for respirable dust, because MSHA would be doing all of this it was our interpretation of the statute that the well grounded rights would apply, but apparently this is causing confusion. It's something that we will address later. I know there are several concerns. I can tell you one of the most obvious would be to put it into the text of the reg. MR. KENNEDY: Thank you. MR. NICHOLS: Thank you. I seen all you guys writing real fast when I said that. The next presenter will be Bill Caylor with the Kentucky Coal Association. Bill? MR. CAYLOR: Thank you, Mr. Nichols. I appreciate you letting me go out of turn. My name is Bill Caylor, it's C-A-Y-L-O-R, with the Kentucky Coal Association. I'd also like to thank Mr. Wilson to agree to let me go out of turn as I will not be here tomorrow. I could be here late tonight, but I just could not be here tomorrow, and I appreciate the opportunity to go out of turn. We're making comments on this proposed regulation on behalf of three coal associations in the State of Kentucky, the Cooperators & Associates, the Kentucky Coal Association and the West Kentucky Coal Association. Collectively, these three organizations represent over 90 percent of the production in the State of Kentucky. I'd like to comment on MSHA conducting all compliance and abatement sampling. Most health and safety professionals and coal operators favor MSHA conducting compliance sampling of coal dust. Over the past years, operator sampling has become Catch-22 for operators. If an operator is in compliance, MSHA and the newspapers say that cheating has occurred. If an operator is out of compliance, then he gets cited by MSHA and again is criticized by the news press. Either way, the operator loses so in that regards, you know, we favor, you know, that aspect of MSHA taking over the sampling process. With regard to single full shift sampling, we've got three different comments. First, we feel like the single full shift sampling violates the law under previous regulations. The Mine Act and the previous MSHA regulations clearly address average concentrations of coal dust. MSHA's current proposal for single shift monitoring ignores over 23 years of precedent in determining how coal dust should be measured; that is, averaged. The Mine Act, in Section 202(b)(2), clearly states this. "Each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of such mine is exposed at or below two milligrams of respirable dust per cubic meter of air." In 1980, MSHA recognized that, "Congress recognizes that variability in sampling results could render single shift samples insufficient for compliance determinations. Consequently, Congress defined average concentration in Section 202(f) of the 1969 Coal Act, which is also retained in the 1977 Act." We feel that measurement uncertainty demands reasonable backups. Because of the measurement uncertainty, which involves, you know, physically taking the sampling, the mechanical device itself and the location of the sample, a lot of different parameters, we feel like the mining community would like to make two requests. First, the operator should be afforded the opportunity to take a controlled sample for verification of the inspector's sample. Second, the inspector should at times, or upon a reasonable request, take a second sample that needs to be sent to a lab other than MSHA's lab for independent verification. I think those are very reasonable requests. The third comment under this area is on quartz measurements being taken based on three samples. The day quartz is sampled is very important, as we even heard earlier in the testimony. There are many atypical periods that impact the percentage of quartz in the mine atmosphere. The ventilation may not be established. The operator may be taking more rock in the ceiling, presser room and so forth, again citing the examples we've heard earlier. Three bimonthly samples are needed for each MMU. This would comply with MSHA's language that states the measurement accurately represents atmospheric conditions to which a miner is exposed during each shift. This appears to be the intent of MSHA, as reflected on page 42130 of their preamble. Defining concentration using an eight hour MRE equivalent measure is flawed. Section 7.2(j), Definition of Concentration, makes an eight hour MRE equivalent measure of the amount of respirable dust per unit volume of air. MSHA's definition of concentration, which is based on an eight hour MRE equivalent measure, is an example of what I would call voodoo mathematics. It sounds good, but it's mathematically flawed. MSHA, on page 42140 of its proposal, addresses concentration by setting a daily maximum concentration of coal dust exposure to a miner. MSHA made the following statement, "MSHA developed the existing coal mine dust standards from eight hour shift exposure measurements. Therefore, if you take a sample over a period other than eight hours you must adjust the concentration measurement to be equivalent to an eight hour exposure." This statement is incorrect. It mixes the term concentration and exposure. An average concentration is simply the average of the dust weight per unit volume of air. Concentration is not time dependent, as MSHA tries to make it. You can have the same concentration in coal dust over one hour as you do over 24 hours. Exposure, on the other hand, is cumulative in nature. The Mine Act and MSHA, throughout the preamble to the proposed regulations, confirm this. The examples include on page 42127 of the preamble, "For example, to effectively monitor the mine environment for miners' work or travel it is essential that respirable dust samples are representative and that they reflect typical dust conditions to which the miners are exposed." The Mine Act uses the term average concentration throughout. In Section 202(c)(2), the law states the ability to reduce such dust to the level required to be maintained. Section 202(b)(5) requires the operator to maintain continuously the average concentration of the respirable dust in a mine atmosphere during each shift and the working places of such mines. It is clear that the Mine Act uses the term concentration to mean the average concentration of two milligrams per cubic meter of error. However, MSHA's use of the 480 minute maximum completely destroys the integrity of the use of concentration. What MSHA appears to be trying to do is to reduce the longer work shifts back to the eight hour work shift. Why else would MSHA add the 480 minute maximum? It clearly does nothing more than penalize longer work shifts. This shouldn't be MSHA's focus. MSHA's focus should be the average exposure rates during working shifts. One flaw in MSHA's theory could be observed in the example where the operator uses shifts of less than eight hours. When MSHA speaks of travel time diluting the calculated concentration, simply doing the calculations using a six hour work shift with a one hour travel time, the accumulated dust during this work shift will be less because the one hour travel time would generate almost no dust. Instead of working a five day work week, the miner would then be required to work, you know, roughly a six and a half day work week to give him his 40 hours of total work. The same number of total hours as with the longer work shifts, but different compliances with MSHA's definition of concentration. The key is the exposure of miners to coal dust of a long period of time, the cumulative exposure. Even MSHA recognizes the importance of cumulative dust exposure on page 42155 of the preamble. Whether a miner works four 12 hour shifts or six eight hour shifts or eight six hour shifts, the cumulative exposure is the same, and that's after adjusting out, you know, the travel time. MSHA's proposal to adjust concentrations to an eight hour equivalent is mathematically flawed and clearly biased against longer work shifts. The eight hour equivalent is not an adjustment of the concentration measurement to equate it to an eight hour exposure. It's simply a biased calculation aimed at reducing longer work shifts. If a company was borderline compliant on an eight hour shift and then began working a ten hour shift, the company simply wouldn't be able to meet the two milligram standard in that ten hours under this proposal. If MSHA wants to us a 480 minute factor, it should adjust the dust standard accordingly, you know, mathematically however it should be adjusted. Finally, we feel that the use of the 480 minute factor is in conflict with proposed Section 72.500 that requires that measurement accurately represents atmospheric conditions to which a miner is exposed during such shift. "One certainly can't do this if one tampers mathematically with the figures that go into the calculation of the measurement that represents atmospheric conditions." With regard to the verified mine ventilation plan, on page 42141 of the preamble MSHA says that a verifiable administrative control would mean a work practice intended to reduce a miner's full shift exposure to respirable dust hazards by altering the way in which work is performed. Examples include rotation of miners to areas having lower concentrations of respirable dust, rescheduling a task and modifying work activities to reduce exposure. We have some questions. What credit is given for the rotation of employees? Where does the air pump go? Does sampling follow the miner or stay with the MMU? We feel that the paperwork associated with this will be substantial and, more importantly, we feel that it will be confusing. We have several other general comments. We feel that MSHA should insure that the equipment that is sold to the mining equipment meet standards that's promulgated by MSHA. We feel like MSHA, pursuant to Section 102 of the Mine Act, should form an advisory committee using expertise such as NIOSH to insure that new machinery sold to the coal industry is in full compliance with existing MSHA health standards. MSHA has the duty to insure that equipment sold to the industry can comply with current regulatory requirements, and we feel that that is actually a mandatory duty to insure that whatever is purchased by the coal industry can meet the applicable health standards. We also feel that the impact on small businesses, small mines, will be significant. MSHA should also -- we feel that MSHA should also publish a study on the impact on small businesses, on small mines and the small businesses that actually work with all mines. The study on the impact on small business should be for the first 12 months of this new rule, whenever it becomes effective, and should report it no later than the fourteenth month. With regards to the use of hired air purifying respirators, i.e., airstream helmets, we feel that they should be encouraged by MSHA, contrary to what you've heard earlier today. On page 42138, MSHA "...encourages mine operators to adopt new and better dust monitoring technology as part of the approved ventilation plan." If this is true, then why not allow the use of the airstream helmet technology? Airstream helmets should be allowed in all mines, not just long wall mines. The Mine Act, in Section 202(h), states, "Use of respirators shall not be substituted for environmental control measures in the active workings." We read this provision as saying that engineering or environmental controls should first be used before respirators are allowed. Respirators should not be considered as substituted when environmental control measures are unable to reduce dust in the mine atmosphere. The Mine Act does not preclude, however, the use of airstream helmets as effective dust control. MSHA should not discourage the use of new technology when the new technology can effectively reduce the miners' exposure to dust. MSHA should be ashamed of itself for not requiring the use of airstream helmets if it would eliminate a coal miner's exposure to dust. The Mine Act certainly does not restrict new technology that would have such a positive effect on the miners' health and neither should MSHA. In summary, I'd like to talk very briefly on economics. I know this hasn't been touched on much today, but I'm seeing a trend, which is very disturbing. I'm seeing a trend east of the Mississippi, and I am not singling out Kentucky, Illinois, Virginia, West Virginia, any state, but I'm seeing a trend of production east of the Mississippi, underground production, declining. You might actually say why is this happening? Well, there's other fuel supplies that are taking the place of the coal that's been produced east of the Mississippi typically by underground methods. The coal is coming from the Powder River Basin where you have these seams that are 40, 50 feet thick, very low sulfur. Syn fuels, which is a new coal product. You've got tax credits of $26, $27 a ton for using these syn fuels, and these utilities are really gobbling this up. They're estimating that it will replace 40,000,000 to 50,000,000 tons of coal in the near term, in the next four or five years. That will come out of the areas that because it's mining these old gob tunnels and it's located really east of the Mississippi again, so that's going to replace coal east of the Mississippi. Natural gas. You're seeing the utilities switch to natural gas. Why? To comply with the Clean Air Act requirements. Natural gas has several advantages over coal. It can take away the price, and the price is outrageously high. We've seen the increases. Natural gas requires a smaller plant. They can build these plants within a year and a half, two years, a small location, and when you turn that gas on there's no residue. There's no flash, no waste that the utility has to worry about disposing of. The only drawback, which is the major drawback, is the enormous price of natural gas, the fluctuating price and the availability of the supply. The other impact on American coal is coal that we see coming from South America, and it's usually hit a lot of our markets in Florida and in states along the coast. This has taken markets away from coal that's mined in Kentucky, Illinois, Indiana, West Virginia, Virginia. You know, it's replacing it, simply replacing our markets. That coal is very low sulfur. It's mined very cheaply overseas, and it's barged across the ocean to our consumer utilities in the southeastern states. As we watch the production falling, we're also watching the employment falling. Fifteen years ago, we used to have 50,000 miners in Kentucky. You know, today I'd venture to say we have a whole lot less than 15,000. I think that officially you might see a number around 15,000, but I don't think it's that. We're not just losing the miners, you know. We're losing the management. You know, I've worked with people over the last 20 years that have lost their job. You know, these are the management. You know, miners are losing their jobs, and management people are losing theirs. The next thing is it's going to have to be the rank and file at MSHA. I don't think you all can justify regulating a declining industry at the same levels as you all are using now on the inspectors and the personnel. It may not affect you all in Arlington, but it's sure going to affect the rank and file that you're going to see out in the various states. I just want to point that out because that is a factor that needs to go into this. You might ask, you know, why is all this happening? I could blame over regulation as the sole cause, but that's not fair to say, just over regulation by itself. One other major factor is the Clean Air Act. You know, the year 2000 restrictions of the Clean Air Act is devastating. You know, Illinois, Indiana and Ohio, western Kentucky, and now these restrictions are starting to flow over to eastern Kentucky. There's a lot of coal reserves in eastern Kentucky that are just absolutely not compliant as we look at the 2000 Clean Air Act restrictions. You're going to have, you know, similar coal in West Virginia and Virginia that will also be knocked out of the market because it can't meet the sulfur requirements. Also, you know, I'd like to blame MSHA for its share of cumulative incremental costs. When we're seeing regulations on diesel, ventilation regs, noise, dust and numerous other regs that we've seen over the last several years, it has certain cumulative costs associated with it that impact the cost of that ton of coal that's mined by underground mining methods. It gets to the point where one by one these mines will drop out because they can't afford to compete because there are just more costs on that kind of coal, as opposed to coal that are competing from the Powder River Basin or maybe from some of these large surface operations or South America or syn fuel where the coal is just simply going to be too expensive to mine economically, and these mines are going to slowly one by one drop away. You don't notice from going. You can't put your finger on exactly what the reason is, but they're going to drop out because they can't afford to stay in the marketplace. The goal of MSHA is to protect the miner. I think they're heading toward an unmitigated success in that regard because, you know, sooner or later there's not going to be a lot of miners working so you're going to protect this guy because he's not even going to be working in the coal industry. Just keep that in mind. You need to balance your protection of the miner along with, you know, keeping him on the job and keeping him working, which is important. I don't think there's a lot of other livelihood that you're going to find in the coal fields. The coal fields just simply are not diversified. Unfortunately, coal mining is the only viable occupation that you find in the coal fields. We need to keep that a very viable occupation. It's well paying. These guys -- you know, it's a tough job. They deserve every penny they make. You know, coal mining is not easy, but I'm quite proud of these guys, you know, that's here behind us. They do a good job, and the American coal miner, you can't be more prouder of him. In closing, I'd like to say I've never seen an industry that's been regulated into prosperity. All that happens is that we're going to lose jobs, and we're going to lose our jobs overseas. Thank you. (Applause.) MR. NICHOLS: Dan Spinnie? MR. SPINNIE: Dan Spinnie, S-P-I-N-N-I-E. I'm from Local 2161, United Mine Workers, Coulterville, Illinois. A lot of this stuff has already been gone over, but I've come 500 miles so I'm going to go ahead and do it anyway. MR. NICHOLS: We're going to let him. MR. SPINNIE: Which brings me to my first point. How come we don't have one of these closer to the midwest? You've got two of them out here east and you've got one out west. I mean, who decides this, where these are going to be held at? MR. NICHOLS: My guess is it's a collective decision of a lot of people at MSHA. I don't know. Obviously I don't have the final say. MR. SPINNIE: Okay. MR. NICHOLS: We'll keep you in mind for the next set of rules. MR. SPINNIE: Okay. Thank you. The Mine Act requires that, you know, and we've already talked about this engineering thing, but I want to go on the record as saying that we need to use all these engineering devices before we go to these airstream helmets. I don't know nothing about them. I've never used them, but from what I've seen about them and heard about them they're not good. They're uncomfortable. They're hot, from the folks I've talked to. I just want to go on the record as saying that we should go the engineering before we resort to that. It's a last result. I had one question on that. In the very end, who decides if all these engineering controls are over with or exhausted? MR. NICHOLS: That would be a discussion with the inspector, the supervisor, the district manager and finally up to me. MR. SPINNIE: And then when are they over? I mean, is there a time limit when you use all these? Do you know what I'm saying? When is it over? MR. NICHOLS: It's over when your best collective thinking is that there's nothing else that can be done, but, as I said earlier, let's say we make that determination and then something new appears on the scene. Then we would expect those new things to be implemented. MR. SPINNIE: All right. As far as the walk around rights, we've already discussed it. As I said, I want to go on the record as saying that it's a good thing. I've been safety committee man for 15 years at my mine, and we have a good working relationship with MSHA. We help them. They help us. These miners' reps and the miners themselves, they know this mine better than anybody. They're on the front lines every day. I would not like to see that leave. On the outby sampling, probably in 1980 in our mines we was a small operation. We didn't have much belt line to contend with and belt drives and outby locations where a lot of dust was generated, but over the years these belt lines have got bigger. The horsepower on the drives has increased, more belt lines, and I think we need more than one sample taken on these outby areas. Speaking on the production levels that are going to be monitored, back when we had our last set of hearings I guess it was back in the 1990s, early 1990s, I spoke, as a lot of gentlemen here have spoken tonight, that things aren't done the same way on sample days as they are on regular days. I don't know what somebody called it. Legal cheating. I've seen that happen. I don't know what we can do about it other than raising the tonnage, you know, raising the percentage of the tonnage. I don't know what can be done about it. As far as raising the standard to 2.33 milligrams, in 1997 the mine where I work at went to a super section running two machines on a split tail ventilation. Since then, we've been out of compliance. I don't know if this has been addressed on these split tails as doing something different with this, but certainly we don't want to increase it. You know, it's like one gentleman said. If you're going to do anything with it, take it to 1.75 and cite them at two, you know, if it's a legal thing. On these super sections, first of all, do you understand on a split tail ventilation? Are you familiar with that? MR. NICHOLS: Yes, the group is. MR. SPINNIE: I'm not real familiar with it because we've only had it a couple years and we've had our problems, but that's what I'm talking about because ever since -- we've been out of compliance ever since we've had this. We've been under an order for almost a year at Zeigler No. 11 Mine, Old Ben Coal Company/AEI or whoever it is. One other thing I wanted to mention. You probably know about this, but I'd like to voice a concern on it that on page 42177, Part 70, the scope does not appear in this current regulation under the definitions in the CFR. Do you understand? Part 70, subpart (a), where it says Definitions. The word scope does not appear in there as it does in the regulations, the CFR. MR. NICHOLS: We understand. MR. SPINNIE: Okay. That's all I have for now. Thank you. MR. NICHOLS: Okay. Thank you. (Applause.) MR. NICHOLS: Steve Wolfe? MR. WOLFE: My name is Steve Wolfe, W-O-L-F-E, UMWA Local 1969, Crown Chee Mine, Burton, Illinois. I'm a safety committee man. I've been in the mines for 24 years. I don't know much about long walls because we're in the heartland of farm country so we can't long wall so I can't talk about that. I don't know anything about airstream helmets. What concerns me is this yearly sampling of outby areas. I myself am a belt shoveler. I have been for six years, and the conditions of the beltways change daily or even quicker. I cover approximately eight miles of belt every day. I work six days a week, eight hours a day. Now, how can one sample in a year give you the information on how much dust I am around in 48 hours a week? I've been along belt lines where you couldn't see ten foot in front of you one minute. Go back in an hour, and it's clear. Also, it's not just me. Our examiners spent half of their day working on the belt lines examining the belt lines. Also, one-third of our shift is outby. You know, it's not just respirable dust that we're concerned with. It's the idea that we could have a mine explosion. A lot of belt fires are from dust, hot roller ignition. I've heard talk of this continuous monitoring, which doesn't work on miners because they can't stand the rigorous impacts. I thought that this would be a place where a continuous monitor could work on the belt lines. Like we said, there are some things the companies do on dust sampling days, and one of those are make sure there's water on the belt so that the dust is allayed on the belt line. My question to you is why would our outby people be less important than the coal producing people? MR. SCHELL: The answer is clearly they're as important. I'll try to at least explain to you why. In our proposal, we suggested that we would sample outby DAs at least once a year, and I underscore the words at least. When we look at the data that we receive from our sampling outby DAs now and the data that we receive from the operator outby sampling, we collect a lot of samples outby. Very few of them show high dust levels. I think last year there were perhaps eight citations issued outby. It was with that in mind that we felt that we needed to continue to monitor those definitely and focus on where we have problems. If you just look at our experience, most of the problem appears to be at the faces, not at the outby. You raise that question. A lot of people have, and that's an issue -- MR. SPINNIE: Right. MR. SCHELL: -- we certainly need to consider, but that's what led us to that conclusion. MR. SPINNIE: Well, I would suggest that if you would come to the mine and look at me when I come up out from underground there isn't anybody any blacker than I am at the end of the day. MR. SCHELL: We understand your comment. My calculation is it ranks in the top five of the most commented on here. MR. SPINNIE: That's all I have. Thank you. (Applause.) MR. NICHOLS: Keith Flower? MR. FLOWER: Hello. My name is Keith Flower. I'm the chairman of the health and safety committee for Local 2397 of the United Mine Workers. I also work at Jim Walter Resource No. 7 in Brookwood, Alabama. It's good to see some of you all. I've seen some of you in the past and had some comments on other areas of the law. I appreciate the opportunity to address all of you concerned the new proposed regulations, but I must say that I shouldn't be having to address such ridiculous regulations. I, too, have drove approximately 500 miles, and I believe today that it's a waste of my time to have to be here. That's no throw back to any one of you all, but I honestly believe if you all care about the welfare of the miner down there working that you wouldn't propose such regulations as we have today, as best I can understand them anyway. I have read through them numerous times, and still to this day I don't really understand, you know. I read the preamble and I read the proposed rule, and I don't understand how they conflict with each other and what they say and what they don't say. I'm going to best try to address some of the concerns I have that I've had probably with the old regulations also that's not addressed in the new regulations. Nearly all, if not all, the proposed regulations continue to put miners at high risk for black lung and other respiratory disease. I must remind you that miners are dying every day of black lung, and it is time that we put a stop to this. You know, I heard the gentleman talk a while ago from the coal association, and it took me back. My father died from black lung. I was age four, so I was raised up without a father. I've heard other people today testify having to see their father go through this awful disease and die. I guess maybe I'm blessed that I didn't. I heard him talk about the burden that this might put on the operators and that miners are not put out of work. Let me say today I assure you if you'll call my mother, which is about 82 years old, that she would tell you if she had the opportunity to go back she'd have rather been on welfare than to have my father working in conditions and died at an early age. There's just something that touched me as this guy was talking. I wasn't even planning to talk about it. You know, today I realize my job is real important, and I need my job, but I don't want to end up at the age of 60 and be dead. I'd rather see my grandkids grow up, my kids, so let's remember today the most important thing I feel like you all's job is is to put out rules that will protect the miner that's down there working, not to raise the profits of the coal operator. I don't think that you all have a right or a responsibility to that. I know that we need to stay in business and keep the job, but I also know there's ways of doing that, and I'll share some of them in just a moment. First off, Marvin, you asked earlier to a guy that's from Alabama, Jim Walter No. 5, if there wasn't people in Alabama wearing airstream helmets. Like I said, I work at Jim Walter No. 7. I can attest that we're not wearing them. We've tried them in the past. I've had the opportunity to go into several other mines and inspect other mines, the U.S. Steel operations, some of the Drummond operations, and I can tell you to this day that there is not a single union mine that I know of in the State of Alabama, in talking to some of the other operators or mine operators, that wear airstream helmets today and work on a daily basis. I would challenge -- if you've been told they do, I would challenge whoever told you that and see. That's what I want to start off talking about. I know you don't want to hear about it because you're heard a bunch, but I'm going to anyway. First off, in lieu of using airstream helmets, in lieu of engineering controls for respirable dust compliances, first of all I want to talk about some personal experiences. Back in 1990, JWR No. 7 Mines was out of compliance on the dust standard. During this time it was allowed to mine just about two-thirds of a panel out of compliance. The union started taking position of this, starting raising the issue with MSHA. MSHA came in at this time and started changing and went and said they was going to put us under 060 sampling. The first thing -- not the second, not the third, but the first thing management had stated was we cannot operate under 060. We will shut the coal mines down. The first position that UMWA took with Joe Main and several others in the local subcommittee that we was not going to allow our miners to wear airstream helmets. The second position was we was not going to allow the mines to be shut down; that we was going to sit down and try to work and try to come up with engineering controls that would keep that mine operating. We went to doing this. We sat down and came up with a plan. At that down it was called a downwind sampling plan used in the hanging method. I don't whether any of you all remember that. MR. NICHOLS: We're quite familiar with it. MR. FLOWER: It was real complicated in some areas, but it gave the miner some protection as far as working downwind how long they could be exposed. As I said, we sat down and came up with a new dust control plan which calculated downwind time for the shear and added several engineering controls. We accomplished getting several sprays added, including shield sprays onto our long wall shields. It first started out with our plan saying we're going to wet down the top of our shields. We came up with adding the shield sprays. You know, when we first started talking with management they wanted airstream helmets. They said there's no way -- no way -- that you can add shield sprays to the top of these shields to wet down the shields as they advance. We accomplished doing that. We did not even wait until we got new shields in. We retrofitted the shields that we had and started putting some. They're not as good as the ones we have today, but they did start having some. We have a continuous problem still today, though, with the operator maintaining the controls that are installed. If these regulations are implemented, you can be assured again that the first thing the operators are going to scream is that there's not any engineering controls available and cannot develop any that can be installed to reduce respirable dust. That's the first thing they're going to holler after they come to you and tell you we've tried this, we've tried that and we've tried this. That brings me to the point of you saying well, we're not going to raise the standards to four milligrams. I understand what you're saying, but if you read the rule in essence you are raising the standard on long wall to four milligrams, up to four milligrams, for the person downwind of the shear. Now, I don't know. From the school I come from the only way you can interpret that is raising it. I know you say this is after everything has been exhausted, but the operator has to come back and show you all what they've done, what's out there, that there's nothing else out there, and then it's going to be raised. Like I said, again, in 1990 if we had had this in place we would have been forced to wear airstream helmets today. Airstream helmets also pose several other dangers to the miners working on the long wall. As you've heard already, the visibility is greatly reduced, and historically on our long walls faces continuous roll out, causing large rocks to roll out into the walkways. By wearing these helmets, the miner cannot see from side to side; therefore, causing the miner to be covered up and possibly killed from the rocks. I said before we have tried to use the airstream helmets at our mines in the past. The miners wouldn't use them because they could not communicate with each other. The guys today, I think you heard him up here trying to testify. We couldn't hear him in the back, and there wasn't any other noise going on in this room like there are on the long wall face. Also, I think one gentleman testified about people chewing tobacco. How many times do you think that guy working downwind is going to keep that face shield down when he's got a dip of tobacco or chew in his mouth to spit? He's going to be raising it up continuously to do that. Therefore, if he's working in 3.5 milligrams he's going to be exposed to higher levels of concentrations. You talk about -- the NIOSH study that I read talks about the guy looking into the air, facing into the air at all times. This is not feasible for a person to do that. If on our long walls that person is constantly facing the air, then all the rocks from behind him, which we historically get coming up the panel line and rolling over into the face, could also cause a great danger to him. I also remind you that -- excuse me. I also don't understand where MSHA gets their information about the state raising the dust standard to four milligrams by using airstream helmets. From the testimony today and re-reading the preamble and all, I see something NIOSH does come up with, but I also didn't see in there anywhere, as Max talked about earlier, where they tested it using high velocities of air. I think you've all been in our mines. You know the high velocity that we have on our long wall faces. At no time do you ever go down there and find we're using 400 or 500 foot per minute. There's always extreme higher levels than that due to methane levels. There's no way we can operate without it. Actually, it creates us some more dust problems from having to have so much ventilation on our face. We strongly believe that not only would using these airstream helmets expose miners to higher risk of black lung. It would create other dangers to the miners. I must remind you again, and I have a totally different interpretation of the Mine Act than what the fellow that was representing the coal operators a while ago had. Let me read. Section 203(h) of the Mine Act plainly states that the use of respirators shall not, and I underline shall not, be substituted for environmental controls, measures and active workings. I think it's plainly stated. I don't think you should be reading anything else in it except it was not the intent of Congress to be able to put something on a miner that was going to reduce the dust concentration that had been if you had to clean the environment up. We believe that this portion of the proposed rule makes it clear that MSHA believes that compliance is not important to the miner working down there. Secondly, I think that's enough on airstream helmets. I believe you've got the message today. I hope you have anyway. Let's talk about the single shift and full shift sampling. UMWA has been complaining and communicating to MSHA for years that miners are not being monitored under normal working conditions due to the fact that samples are being taken on an eight hour portal to portal, and miners are being required to work up to ten hours a shift. We've been requesting that samples be taken for the entire shift on which the miners are being exposed. This is the only way we can be assured of what levels of dust concentration miners are being exposed to on a daily basis. Here again I want to give you a true experience that I had. Let me rephrase that. That one of my other committee men had here in the past July, this last month. In July of this year, an MSHA inspector ran dust pumps on the long wall of our mines. When he arrived on the long wall, he started checking all the dust parameters, which included taking water pressure readings on the shears -- and other areas of the long wall, all the dust parameters, which took him approximately an hour to an hour and a half to take all these readings before mining could even be started. In talking to the miners and from my own observation of the long wall, this procedure is not done on every shift when they are not sampling. An inspector took up the samples also 45 minutes before the end of the eight hour shift in order to get the pumps outside by the allowed eight hour sample time. Therefore, the miners was only being sampled for approximately six hours of the actual mining cycle being done. When I say this is not done on every shift, when our people go down there when they're not running dust pumps, when the inspector is not down there, they go down there, and they have gauges on the shear, the incoming water pressures to the sprays and everything so all they do is look at their pressure gauge to see that they got the same amount of pressure coming to it, make sure all the sprays -- eventually look at the sprays and make sure they're working. This has been approved by MSHA for them to do that. They don't have to go and get a gauge. They put it on the drum, so they're going to put it on each spray to check and see how much pressure they've got. That's the reason when the inspector comes in he does it this way, and that's one of the reasons that it takes so long for him to do it. It wasn't that he wasn't trying to do his job. Actually, I think he was trying to do his job properly to make sure. If these samples was taken for an entire shift the miners worked, then it would be harder for the company to manipulate the sampling process. You'll have to excuse me. I've got notes wrote on every different topic here. Here again, I must remind all of you that we're continuously having miners die of black lung and other respiratory disease caused by exposure to mine dust. Until we start sampling miners for their entire shift, we will not know what engineering controls to add to reduce exposure to the respiratory dust concentration. It is not only the right of the miners to be protected from respirable dust, but it's MSHA's responsibility to make sure that operators maintain the dust concentration below or at allowable limits. This rule does not do that. We, the working miners, demand that MSHA demolish this proposed rule and go back and start over with a new rule by adopting the recommendations of the federal advisory committee's recommendations that was approved and which was appointed by the Secretary of Labor. Here again I'll stop for a minute. Why should we have wasted all this money putting this task force together, this committee together, and get their recommendations and throw them out the window? I challenge you, each and every one of you. Go back and get the advisory committee reports and compare it to what you all come up with. Basically that's what you're doing. You took a couple good ideas out of there. Again, I think you was on the right start with the full shift sampling, but you just didn't carry it forward enough. I remind you that my understanding of this advisory committee, it was made up of two people from labor, two people from management and five independent people. Each and every one of them agreed on that report. Each and every one of them I believe signed off on that report, so I believe that if you had adopted that report then the UMWA, labor and management would not have had a right to complain about what's in that report because they all signed off and agreed on what was in there. They had their representation there. We have also requested that miners or miners' representatives be allowed to participate in all sampling procedures, whether it was for compliance or plan verification, at no loss of wages to the employee, but there is none in the proposed rule. Operators surely, surely will challenge the policy or preamble if it is not mandated in the rule, and it is likely that miners will not participate. There again, I heard I think Mr. Schell, and maybe you, too, Marvin, saying that they will have the right. Let me address policy and preamble. I have over the years of being involved in the safety committee, I have dealt with policy. I have dealt with MSHA subdistrict managers, MSHA district managers. I have seen policy change from one manager to another manager, subdistrict manager to manager. I've seen inspectors interpret the policy totally different. Recently, a few years back, I seen a lot of policy changes change. The first thing when I contested a lot of this thing was that it will not hold up in Court. I've been told that numerous times by a hearing officer, by an ALJ in a Court case that I was in with a person at Jim Walter Resources. That policy cannot and will not be mandated by the law. It has to be final rule before it can be upheld. I'm not saying that some of them haven't got by, you know, and been enforced that way, but any that's challenged can be throwed out. I firmly believe that. Again, if it's not in the rule don't expect it to happen. I'll give you another example of the company that I work for, how I guarantee you they will challenge it. Back in November, 1991, and this is all documented in the 105(c) that was filed, and I can show you reports on it. The safety committee man at my mines was discharged, the company stating that he was not staying close enough to an MSHA inspector that was on the No. 1 long wall to evaluate a proposed dust control plan. The foreman stated that the committee man was spending too much time at the shear and talking to the workers about the conditions of the sprays and also to MSHA inspectors about the plan not being followed. The committee man at all times was within 15 feet of the inspector, but yet he was discharged. Therefore, the operator plainly demonstrated that they don't want miners' reps with the inspectors when it's required by the Mine Act under the protective rights, so they sure won't allow miners' reps to be part of any dust sampling which is not required by the final rule, there again underlining final rule, not preamble. For years, UMWA has been complaining to MSHA about the operator conducting their own compliance sampling, how easy it was for them to manipulate the dust sampling procedure. I've stated I think to you, Marvin, personally and to Lawrence Schell at -- and at other places I always give this example. It's like me or you driving down the highway. We notice that we're going too fast so we pull over and give ourselves a ticket. You know, that's what the operator in a sense in essence does by doing their own sampling. That's what I feel it's like. Hey, we're out of compliance so we're going to sample and give ourselves a citation. No, most of the time they're not. They're going to try to manipulate the system and keep from getting that violation. Therefore, I appreciate, and I underline really appreciate, you taking or saying that you're going to take over the operator sampling procedure because I believe that should have been done years ago and needs to be done today. The only problem is I don't see anywhere in the final rule that says you are going to take them over. It says that you're going to do all the sampling, but in essence what you're going to do is sample at least six times a year. Therefore, we're going to be losing all that sampling that the operators do. You asked a guy earlier today well, do you all not want us to do away with operator sampling? I guess if it came down to having no sampling or the operator sampling some, I guess we're better off having the operator sample some, but I think it's been mandated and I think all the testimony will show that MSHA should take over all sampling, but not reduce it. Not reduce it. You talk about manipulating the system. If they know you're coming six times I guarantee you they're going to make sure the plan is being followed once the plan is approved, the verification plan has been approved. They can make sure that that plan is right for that period of time you're coming. They can afford to operate a whole week because you get to a point as a miners' rep and as an operator. You can about figure when MSHA is going to come and run dust samples. All you've got to do is keep it on the calendar when they've been there last, so it will be a lot easier for them to do. As I said again, this is ridiculous. We asked for more efficient sampling. As a result to our request, we get less sampling and higher levels of allowable dust concentration. What MSHA is proposing in this final rule is to steal, and I underline steal. It's like taking candy from a baby or something or going to the store and getting a candy bar and not paying for it. Steal the health from the working miner is what this rule does. I'm about to wrap up. I just have a couple more things here. I guess the first question, and I think it's been asked, but I want to re-ask it for the record, is why is it not in the final rule? You know, it's in the preamble, but why is it not in the final rule that miners' representation will have the right to be with MSHA on all inspections, plan verification, abatements, compliance and all in the final rule? Why is it not put in the final rule? MR. NICHOLS: Well, it's clear in the preamble, but we have a comment about, you know, we know your desire to have it in the final rule, which we'll consider. MR. FLOWER: All right. Another one. On this plan certification, the way I understand it's set up, and correct me if I'm wrong. The operator is going to get everything they think they've got that needs to be in place, set it up on the long wall or the miner section, as far as that goes, that they think can be in compliance. Then they're going to call you all or MSHA -- MR. NICHOLS: Yes. MR. FLOWER: -- and you all will come out and sample it. Is that correct so far? MR. SCHELL: I don't know if they'll call us, Keith, but you're right. We will notify them that we plan to do verification sampling. Then they have to get prepared for us to do that. MR. FLOWER: Okay. All right. So why is it then once they say they're ready to have the verification of the plan, why is it if MSHA comes out and samples and they're out of compliance there's no citation written? MR. SCHELL: The purpose is to test that plan to see if it works at these high levels. MR. FLOWER: Right. MR. SCHELL: So it may not work, which means they may have to do some more. MR. FLOWER: Okay. Do you think, though, you know, these miners are having to work in these high concentrations of dust this whole time when they're out of compliance, this month or two months or three months it can take for them to finally notify you all or either you all notify them that we're coming out. The miners are exposed to higher levels. You come out. You sample and find out that plan is not working, so then you come around and tell them they've got to do something else. No citation, no abatement time, nothing that the union can challenge, nothing that the union has a right to go -- under the Mine Act, but yet they could have another month or two months, and you come back and sample again and it still might be. Do you understand? If you write a citation, then you have to put an abatement time. The union at that time will have a right to challenge that abatement time, whether we say no, MSHA, that's too long. I believe we've got good inspectors, okay, but I honestly believe that those working miners and miners' reps has more of a feeling of what time it would take to abate a certain citation, how long we should give operators. I guess you're not going to give me an answer that I like. The statement I'm trying to make is take that under consideration. Talking about the highest average production, this is going to be based on eight hours or ten hours of production that you talk about they're going to have to put in their plan. You know, you talk about well, we're going to go with the highest percentage of the production. There's nothing that I see spelled out in there that says okay, even though people are working ten hours, you know, what are they putting in the plan, what those people produce in an eight hour period or what they produce in that ten hours or that 12 hours? MR. SCHELL: It's required to be put in the plan. MR. NICHOLS: Full shift? MR. SCHELL: And required to be put in the plan. MR. NICHOLS: Full shift and required to be put in the plan. MR. FLOWER: Okay. Is that in the final rule? MR. SCHELL: Yes, sir. MR. FLOWER: It is in the final rule? What part of the final rule? MR. SCHELL: Keith, there's a section that describes new information that has to be added to the ventilation plan. It relates to 75 to 300. There's a section at the end of the final rule where it talks about new things that have to be added to the ventilation plan. It's in that portion of it. MR. FLOWER: It does spell it out? MR. REYNOLDS: Yes. I was going to say also I think we've had this -- a lot of people didn't realize it was in the proposed rule, but everything in the existing ventilation plan submission and approval process would apply here, so the identification requirements. None of that changes. That would still be in place, so the miners' representative would have to be notified, and copies of everything that went back and forth would have to be posted on the bulletin board. The additional information is also the one part of the actual rule which gets the list of what the operator has to include in the ventilation plan, which includes the shift plan. MR. FLOWER: Okay. That brings me to another question then, I guess. If they put a number in the plan, we produce this amount of tons, and as a miners' rep, as the lawyer said, I have a right to comment on any plan submitted. Thank goodness that hasn't been took away yet, but if I challenge that, their numbers are wrong, then what resources are you all going to use to come back and determine whether they're putting the proper numbers in the plan or not? I mean, I don't see a big change today from when the inspector comes out there. He calls the engineer on the phone and they say well, we produce this many tons. I mean, all he's got to do now is write it in his book. How are you going to be assured that he is accurate in telling me what he produced? MR. SCHELL: On the tonnage, there's a requirement, and it's a new requirement, Keith, that the operator has to record production on every MMU every day, and that's a record that they have to keep. MR. FLOWER: Right. MR. SCHELL: So if we have reason to believe that those records aren't accurate, number one, we're going to be talking to people like you. Also, we can come out and do physical measurements to see what they're doing, but our experience has been when you require an operator to document every day on every MMU they're very careful about it because they know that if they screw up there's a written record that demonstrates that they've screwed up. So just the fact that they have to keep that written record and the fact that there are people like you and the fact that we can make those measurements, we ought to have a pretty good idea whether those records are accurate or not. MR. FLOWER: Okay. I would disagree with you on what you said about the operator making sure. I can show you numerous violations now where they're supposed to record in our boss book examination of an accurate record that's been taken, what they did and what they didn't do. You go down there, and you see totally opposite of what they wrote. As a matter of fact, a common statement is area clear. Area clear. They you go down there are write 15 violations. You know, it doesn't seem like the area would be clear. It just seems to me that without MSHA getting involved and taking their own measurements, there again talking to the miners, the miners' reps, having them in the plan verification process, the operator could, and I ain't saying he would, but I'm saying the possibility is left out there for him if he mines 100 foot to come out and say well, I mined 70 feet, 80 feet. There again, even though I work in a pretty large mine and have several memberships, I know we put a high, high burden on our local if they had to pay me to be with the inspector on plan verification, much less on the operator going down critiqueing their plan. If it was all spelled out, we would be there throughout the process to be assured to be a set of eyes for MSHA, a voice for the miners to MSHA to know what we've recorded and what we know that they've produced. There again, in the final rule there's nothing for that in there. You know, there's nothing stating how you're going to get them measurements or how the operator is going to get them measurements. There's another loophole. I think attorneys know about loopholes; at least mine did. I'm trying to wrap up here. Here again, I've talked about I know policy can't be enforced. One other thing I want to touch or a couple things that I'm going to try to touch. The main thing is I want to make it clear that, you know, once the operator has notified MSHA that they're ready for them to come out and sample for a plan verification, how long -- there's nothing in the rule that says how long MSHA is going to wait before they come to each MMU to make that plan verification. There's nothing in the rule that mandates that. Therefore, if the budget was cut, the money was taken away and you couldn't afford the personnel, it could go on for months because there's nothing mandated that we will be here, MSHA will be here, at a certain time and make that plan verification. Again, I know that you sit here and say you can be assured we're going to be there, and I've learned from dealing with the agency, with MSHA over the period of time and with the operators that if there's nothing in final print written out that mandates it, then there's no recourse that the miners have, so please take that into consideration. My miners might be exposed to over three milligrams of dust up to a six month period of time. The possibility might not be but two weeks, three weeks, but, you know, and I would like to think at my operation I would be taking some more avenues as it was addressed here today under the 103(g). What I'm trying to say is why put something in the regulations that I would have to be forced to use that avenue when we can put it in a mandated rule now that spells how long an operator is going to have before you come in and make the verification? The answer is going to be here a certain amount of time. There's nothing that states that in there anywhere. There's nothing that gives any time frame or any time amounts. I can have all the good intentions in the world, but sometimes I don't have the resources myself to do all of it. I think it was stated and we all know that there's a possibility of a change, an administrative change due to the election coming up, an election year, so when we make the final rule let's make it as clear as we can. Put everything in it that mandates what we're going to do and when we're going to do it. Then we have some avenues to come back at. Lastly, I think, unless something else comes to mind, I want to address one thing that I think I heard Mr. Schell talk about today or asked for comments on, and it's the abatement samples. I want to make it clear today before I leave even though I don't have all the answers at this time. I do want to let you know that we believe that a higher level of confidence should be required on abatement samples. You know, that level of confidence could come from several different ways, I guess. I don't have all the answers, but I definitely believe that even though I don't really believe there's going to be many abatement samples. I'll tell you that right now. In this rule, I don't think there's going to be many citations written to the mine operator. That's one of the problems that I have. I think this gives so many leeways for violations not to be existing. I do believe that we do need a higher level of confidence in that area. That's all I've got right now. If you're got any questions -- I might think of something else, though. MR. NICHOLS: I better say no. Thanks. MR. FLOWER: Let me say this. If you do have any questions -- MR. NICHOLS: In closing. MR. FLOWER: In closing, as the preacher says. In closing, if you have any questions at any time, don't hesitate to write them. My address is available. Send them to me. Call me. MR. NICHOLS: We know where you work. MR. FLOWER: Thank you. MR. NICHOLS: Okay. Thank you, Keith. (Applause.) MR. NICHOLS: David McAteer? MR. MCATEER: Good evening, Mr. Chairman, other panel members. My name is David McAteer, D-A-V-I-D, M-C-A-T-E-E-R. Like a couple of other guys said, I've come a long ways. Although everything has been pretty well covered, I'm going to go ahead and state. I'm been a UMWA safety representative for 15 years at Jim Walters No. 4 Mine, Brookwood, Alabama. I came here to speak today on behalf of over 300 miners at our mine. I need to get our message across loud and clear. It's been said many times today. Go back to the drawing board. These two proposed rules as they are now will eliminate or undercut a key portion or the key protections coal miners currently have. Go back to the drawing board and follow the federal advisory committee's recommendations. Do not increase dust levels. Do not reduce dust sampling frequencies. Do not replace engineering controls with respirable protection or administrative controls on long walls. The advisory committee called for lowering dust exposure levels. The committee called for increasing compliance sampling. The committee called for environmental controls to continue to be the method to control coal mine dust and not to be replaced by respiratory devices. MSHA's proposed rules allow respiratory devices to replace environmental controls while increasing dust levels. It's wrong. It's going to prolong progress and reforming the coal mine dust problems. MSHA should get back on track and follow the advisory committee's recommendations. Mr. Chairman and panel members, you have heard and will hear many more serious problems with these proposed rules today. By no means is this all we found wrong with the proposed rules. I'll say it again. It's wrong to raise dust levels. It's wrong to reduce dust sampling. It's wrong to reduce coal miners' protection from black lung. It's just plain wrong. Somebody at MSHA should stand up and admit it's wrong, but say they're going to make it right. Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Greg Mahan? MR. MAHAN: My name is Greg Mahan. I'm from Illinois. I'm the local union president. I'm glad to be here today, and I'm glad you let me speak. I'm very disappointed. I've come over 500 miles, and I'm tired. First, the board did not follow the federal advisory committee's recommendation. That's very disappointing to me. Second, you did not listen to the miners. They have spoken for many years. You did not listen to the International in their lawsuit. If I could fill out a citation, I figure that would be reckless disregard. To get on to the matter that I have, there are many submissions that I need to bring up that I'm concerned about. At my mine, we have just changed to a new system. It's a blow in system, and the State of Illinois has already considered that outby people don't matter no matter what. To sample one time per year is very minimal. It's not right. We have more dust problems now than we've ever had inby and out. The citation levels, the flow air readings, have increased since December of 1999 since this has been implemented as a blow in system. One gentleman talked about the outby being dusty, and if that's in the ventilation plan they should be required to dust every day. I have codaphoned the federal at least three times in the last three months. The last one was last Wednesday or Thursday, and before I got to the mine the codaphone was faxed to the company. The inspector was there on a regular inspection. He was told to go back below. While on his rounds, he wanted to know. They were attempting to water the roads. As long as they're attempting to do whatever they're going to do, there's no citation that will be written in my mind. Just like too many open cross cuts. As long as they're attempting to work on something, no citation. On that matter, I also support a higher level of confidence required on abatement samples. In that I'm asking a question here. What provision in this proposal will empower miners' representatives to assure that between plan verification approval and compliance sampling that the operator will comply with the approved plan? MR. NICHOLS: Well, you've got the operator himself. You've got the inspector. Then I would expect the safety committee is going to be attentive to that, too. MR. MAHAN: We hope so. I mean, we can go as far as the miners' representative here. The board says its intent is to have us go and not lose no pay. We hope the commitment will be made that they will be allowed. It will be rule. The companies are already saying that they're going to challenge our participation in this. We hope the board, knowing that they are intentionally intending to require us to go, we hope that this rule will be law, not just an intention. We need a commitment. Another question I'm asking. I think Dan Spinnie said they have a section where they have two machines. The question I have, and I've seen this before. If they know that a section or a unit is high in respirable dust, I've seen them shut the section down and say something is wrong. It's down. It's not running. Something is wrong. If they have two machines in that unit, will you allow them to shut one machine down and sample one or wait and come back when both machines are running? MR. NICHOLS: I think we want to verify the plan the way they normally operate. MR. SCHELL: Yes. Clearly it depends on how they're ventilating it, if both sections are ventilated on a separate split. MR. MAHAN: It will be coming down the travel way, fishtail, two miners running at the same time. If they know that one machine is high or going to be high or just say, for instance, when they come in and do their -- one side of the mine is drove up farther than the other. They know the ventilation is going to be a problem. Will they be allowed to shut down one of those miners and sample just the one? MR. SCHELL: Well, clearly if we knew what you just said, no. MR. MAHAN: I mean, whether or not I say what I'm saying. Just say, for instance, they know that that machine, one of those machines, could be out of compliance. Could they just say we're not running that machine today and you go ahead and sample that one machine? MR. SCHELL: With verification sampling, that wouldn't be allowed. MR. MAHAN: Okay. I mean, I know the company I work for. I've seen it done. Right now we're not talking about dust sampling. We just got these new coal haulers. Okay. They're taking production out of one unit and adding it onto this unit. MR. NICHOLS: Would that be one or two? MR. SCHELL: That would be two, but again we'd be interested in seeing -- you know, if we're going to verify that section, we want to see it operating the way it -- MR. MAHAN: Normally would? MR. SCHELL: -- normally would be. MR. MAHAN: Okay. It is my belief that the only way to make this program effective is to have miners included in the sampling process. We're there. We should be included. You know, a few years ago a lot of us were certified by the MSHA inspectors to take methane checks. We were certified, got the little card back. A lot of the individuals didn't have -- weren't certified by the State of Illinois, so MSHA come in and certified them to take methane checks. Well, I think it would be a little bit different than having somebody take a spotter out, but I believe for this to be more effective that the miners at that facility, that mine, knows what goes on and can see how this is going to work, and we would feel more confident if we would have a say so in this. Actually, you know, not only do we go with the inspectors to see that everything has been followed, but we also go with the inspector. If the company challenges him, we're there on his side. You know, this will happen. Under these guidelines or these proposals, if my company with no representation, that MSHA inspector, it's his word against the money. I believe that our confidence would grow with MSHA if we were involved and included in this process. I believe actually that we all need to take a stronger and harder look at the dust sampling throughout this country. It's been a problem since day one that coal was taken out of the ground. It still is, and it always will be. We've asked for over a quarter of a century to have continuous monitoring, and we haven't done it. The company, in my mind, is continuously monitoring their belt lines. Why can't they continuously monitor the dust sampling? I don't think it would cost as much as what they're spending on our belt lines. We have fought long and hard for this. We are willing to fight as long as it takes. We hope the board will take it back to drawing board and not take away our rights and our health. I thank you very much. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Randy Klausing? MR. R. KLAUSING: My name is Randy Klausing, R-A-N-D-Y, K-L-A-U-S-I-N-G. I'm from Illinois, Old Ben Coal Company, chairman of the safety committee. I had a bunch of questions. They were answered, and I'm not going to go back over them. I've got a couple of them I just don't understand here. I know you made a statement that we talked about the rights of the safety people to go with the MSHA. You know, you changed your mind once. I presume he's a lawyer. MR. SCHELL: He is. MR. R. KLAUSING: Okay. Once you said this, you changed your mind. I mean, this was in all this here. You went through all this. I went through this four times, and I still don't understand what the hell it is. MR. SCHELL: What I changed my mind on was -- MR. R. KLAUSING: Well, the reason you changed your mind is because your lawyer stopped you. That's the reason why you changed your mind. (Laughter and applause.) MR. R. KLAUSING: I don't want to be smart or nothing, but that's the reason why you changed your mind. MR. SCHELL: And Joe will stop you if you get up and testify the wrong way. MR. R. KLAUSING: Well, there's no doubt. He probably will. MR. SCHELL: I guarantee you he will. MR. R. KLAUSING: Well, that's what I don't understand. There's stuff that you made the statement that you thought was right, but then you -- MR. SCHELL: No, no. I said a key word that you guys have been looking for, which was rule. MR. R. KLAUSING: All right. All right. Okay. On the DAs, the designated areas, we've got designated areas at our mine. They're at the drives, okay? What I don't understand is you're wanting to raise the standards on the Part 90 miners to 1.26. It used to be one, and you're raising it. That's outby people, okay, or whatever. We don't sample the people. We sample the drives. Just like the gentleman said. He was a belt shoveler. Now, I don't know how the rest of the mines are. I'm just talking about our mine. Our designated area is at the drives. We've got our shelf wipers, you know. There's very, very seldom you have a spill there at your drive. Your spills are on the belt line where the people are shoveling, but they don't get sampled. The drive gets sampled. That's what I don't understand. You say like you looked up statistics of eight citations. That's probably true because there's very few times that we got cited on our designated area, but if you would sample the belt shovelers or the people that is outby, you would probably get a better feel of what's going on besides designating a drive that does pretty well in air and is very seldom going to be out of compliance. MR. SCHELL: Okay. Well, that's worth looking at, but the theory of this DA concept came into effect in 1980, and the theory, maybe it needs to be reconsidered. The theory was that major dust generating sources are at the faces. If you control dust at the faces, people outby normally would be protected. The unknown was these dust generating sources, so we said instead of sampling the people that are outby we're going to sample these dust generating sources outby. Just like you said, it's a belt transfer point. MR. R. KLAUSING: Sure. MR. SCHELL: We were actually sued by the mining industry for doing that because they claimed that was more stringent than sampling the miners because when you're sampling that dust generating point you're sampling where dust is created, even though there's no miner around there. MR. R. KLAUSING: True. MR. SCHELL: We ultimately prevailed in that litigation, but for the industry their position was that we were sampling a place where miners didn't even work or travel. Our position was if we sampled faces and controlled dust at the faces, if we controlled dust at these generating sources outby, we're going to be protecting miners, so that's the theory in why we have those DAs. MR. R. KLAUSING: In a sense, yes. You're right in a sense and you're not right in a sense because you put the pumps at a special place where it's got the sign, DA, you know, and the whole nine yards, but you got people that's not even very seldom there. The examiners come in to make sure everything is okay, you know. The belt shovelers stop, but the majority of your spillage and your dust is actually on the belt line itself, not the drives. It's mainly because you have to have your head spray at your drive, your transfer point. That's in our plan and all that stuff, but the dust mainly is on your belt lines where the belt shoveler is actually shoveling. He's not getting sampled. You're sampling a DA. You're not sampling that belt shoveler. That's what I don't understand. That's what I've argued numerous times. Why can't we get the outby people sampled? Well, I've never got a complete answer. Can you give me an answer? MR. SCHELL: Again, it may not be the one you like, but that's not the way our program is designed. That doesn't mean if you believe there's an individual that's being overexposed you ought to call the district and ask that that be sampled. We can do that. MR. R. KLAUSING: Well, the only time that actually an outby person gets sampled is if he's a Part 90 miner. That's the only time that anybody outby gets sampled. MR. SCHELL: And like I say, it's because our theory is if you're controlling the dust generation points both at the face and on the outby areas, the miner should be protected. MR. R. KLAUSING: Okay. With the Part 90 miners, I know I got -- let's see. Where is it here? Just bear with me. I'll be right with you. I'm not leaving. Okay. Here it is. According to NIOSH, they done a study from 1987 to 1996. At least 18,245 people died of black lung, but now we're wanting to raise it to 1.26. That don't make sense, and we're at one percent? Why? Because we've only had eight citations. It don't make sense when we're still having people die of black lung. I don't understand. I don't have a lawyer to grab me either. I don't understand. MR. NICHOLS: I've got a mathematician back here, but I don't know if I want to grab him. We're not raising it because people are still dying. It's the correction factor, right, the sampling? MR. R. KLAUSING: Yes. Well, mainly, and maybe I'm reading it wrong. The reason I guess you're raising it is because you only have eight citations. MR. NICHOLS: No, no. We're raising it because -- MALE VOICE: We're not raising it. MR. NICHOLS: Now you got me saying we're raising it. (Laughter.) MR. R. KLAUSING: Boy, I'm glad I was late. See, I got you when you're tired. MALE VOICE: Did the court reporter get that? MR. KOGUT: If a measurement comes in above one of those citation threshold values, then we can issue a citation because we have a high level of confidence that the standard has been exceeded. If a measurement is below the citation threshold value, but above the standard, that does not mean that the line is in compliance. It simply means that we don't have a sufficiently high level of confidence to warrant a citation at that time, but we do not consider the mine to be in compliance with the standard. There's a number of other steps that we might take in that kind of situation. We might come back, for example, and take another sample. We might require -- if we get a sequence of samples that are in the case of the outby samples for Part 90 miners, a few samples that are above one but that aren't high enough to warrant individually a citation, we might require that the plan be verified. MR. R. KLAUSING: Not to be disrespectful, but we had a lot of mights in that. I mean, we might, we might, we might. MR. REYNOLDS: I wanted to say something as well. I mean, this practice of putting that 95 percent confidence level into a situation where you're citing somebody for violating a standard like this, and this is not unique to MSHA. It's the same way with OSHA and their 95 percent confidence level. It's also used by EPA. So it's not a matter of raising the standard. It's just really an enforcement policy or a level at which we will clearly pursue that as an enforcement action rather than trying to get them to either correct the problem or abate the problem, so we're not changing the standard with the 1.2. The standard is still one or two. MR. R. KLAUSING: Okay. I know Ron talked about the six samples a year and the eight hour samples. I know you've heard it millions of times. I don't know about millions of times, but you've heard it numerous times that it's not an eight hour sample. Actually, your pumps are actually probably around six hours actual in the --. Then you said that if there's a citation to abate the citation the inspector would stay the full shift if it's a 12 hour shift, ten hour, nine hour. What's the difference? Why can't we just -- if he's going to stay to abate the citation, why can't he stay there the whole eight hours, nine hours, 12 hours if he's going to stay there to abate the citation? MR. SCHELL: When we were drafting this our view was, and, to be honest with you, we had some questions about it, but our view was that since the real purpose of that sampling was to give us an idea whether that plan continued to reflect mining conditions and whether that plan would continue to protect miners. We felt that since we had production records available to us, since we were there and did the sampling and that we could see the controls that were in place, on an eight hour sample we'd be able to make a judgement as to whether or not that plan continued to be protective of miners, but we were concerned enough about it that we did -- if you read the preamble, we said that we had a question about that, and we specifically asked for comments from the public on whether or not we should do compliance sampling for the full shift. MR. R. KLAUSING: True. I've heard you say that. MR. SCHELL: I think we've heard that. I want to go back to the Part 90 if I can -- MR. R. KLAUSING: Okay. MR. SCHELL: -- and just clarify one thing. We do understand your concern, but I don't want to leave you with the impression that the Part 90 miner is worse off than they are today because what we do today is that damn averaging again. We take one sample on a Part 90 miner, and if that's high we go out and we take five samples on a Part 90 miner and we average them, so there could be a two milligram standard in there. There could be a 1.4 in there. Then you get a couple low ones, and it brings you down below one. We say the Part 90 miner is protected. We are going away from that averaging on Part 90 miners to a single sample measure on that Part 90 miner. That will be more protective of that Part 90 miner. That single sample is a significant improvement, but I'm telling you to let you guys know what it is. It doesn't allow the higher readings to be diluted by the lower ones. MR. R. KLAUSING: Yes. I understand what you're saying, but we've had people die for one milligram, what the standard is now, but now we're going to raise it so we don't average out the other five. I don't understand why. Why don't we lower it? If we're wanting to protect the Part 90 miners, let's lower it, not raise it, regardless of the pie divided or however you want to do it. Let's lower it. That's it. You got any questions? MR. NICHOLS: No. I think we understand your comments. MR. R. KLAUSING: Thank you. MR. NICHOLS: Thank you. (Applause.) MR. NICHOLS: Dwight Cagel? MR. CAGEL: My name is Dwight Cagel, Local 2397. I'm on the UMWA health and safety committee at Jim Walter No. 7 Mines, Brookwood, Alabama. I've got 26 years' experience. I appreciate the opportunity to address the panel concerning the new proposed dust regulations. One thing I was going to touch on was the Part 90 miner myself and even add a little to it. I know on these under the old rule in Part 70 and 90 miners would read the requirements for sampling, including the time they are required to, the sampling methods to be used, the number of samples to be taken, location, how abatement samples are to be taken, when, how. If this new one comes in, a policy won't do, a discussion of a policy. They don't have no teeth. You can't enforce a policy. That's our opinion. Miners want to know the dust level that they're breathing now. That is one of the reasons that we need more sampling. Six samplings won't do, compliance testing on six production shifts out of 600 shifts a year or more that we work. We work seven days a week, holidays. That's mining today. That's what they do at our mines. I think we need to go back to the advisory committee rule and look that over again myself, but just in the past year the people that I've worked with in the past three mines, we have lost four people to black lung disease. It's hard to just see them leave like that, some of them in their late fifties, early sixties. One of them we lost just yesterday. I got a call on the phone through black lung disease. We need to wake up on this about the way we treat Part 90 miners. I know to up the dust standard on them, that won't get it in my book. You're talking about an average. The reason you don't get a citation on it is when you hang the pump on them they'll move them to a less dusty area. I know that's what you're going to do is take dust samples. As late as three weeks ago we run a Part 90 miner. They sent him to the wrong place, and then they sent a man down there to move him to a belt header where it had been sampled to get a lower dust average. They put him on the belt line shoveling. The average would have been high, but it just so happened they made a mistake and sent him to the wrong place. This kind of manipulation is going on. I know everybody is talking about more sampling and more sampling. The reason we need more sampling, just like the wall. We went down, and it took an hour and a half to get things right to run it. They said well, we're working on the spray. We're doing this. We're doing that. They won't run until it's right. More sampling? They'll be right more often. Better running samples? They'll just run them like they want to. As far as running those pumps a full shift, our shift is nine and a half hours on the wall, sometimes ten. That's what we need to run. We need to run a full shift, not six and a half hours. That's what we need as far as running those pumps. Sampling on that? Yes, they can manipulate it because they'll hang the pumps on these people. They know where they're going. It may take an hour to get there. By that time they'll have everything corrected and ready. Bimonthly testing? That won't do. That would just give them more time to run the way they're going to run. We've got plenty of dust on the wall. I had a couple pages of stuff here, but it's been beat to death. Airstream helmets. Everything has been beat to death. Maybe somebody got the point across that we need to go back to the advisory board on the committee rules. That's all I got. MR. NICHOLS: Okay. Thanks. (Applause.) MR. NICHOLS: Mike Nelson? MR. NELSON: My name is Mike Nelson. I work out of District 20, Local 1867, construction. I want to touch base on construction. Not putting the miners down, I think what they're talking about is good, but I've got to look at our problem. The construction workers local, all of the construction workers in the coal mine fields, have no laws at all. We don't have nothing to protect us on our dust. In the shaft and the slope work that we do, we're breathing 99 percent rock dust, and that's from what I understand is far yonder worse than any coal dust could ever be. I mean, it's just we sit down there drinking water all day long. There's no way for ventilation to come down and right straight back up. You get so deep it rolls. The dust rolls. I mean, it don't get out fast enough. We're down there in it eight hours a day, five days a week. I would appreciate it if and when you do go back to the drawing board, consider doing a little something for us. I mean, when we have problems out there in the shaft and slope work we have to write like safeguards, you know, just because we don't have any laws. We don't have nothing to protect us. I want to say thanks to UMWA District 20 and our district rep, Larry Pasquale, because of all the help that they've gave us writing these safeguards. We have had a little help due to them, and I would just appreciate it if you all would see fit to try to help us a little bit. To go back to like, for example, I think it was in May MSHA did -- I've been working a shaft and slope work for seven years. I seen MSHA take a dust test for the first time in May of this year. In June, the company come in, brought an independent, strapped it on me, the dust monitor, sent me in the hole. The foreman knew or our supervisor knew that day that the shift before had shot through a coal seam. Okay. No way to wet that down. I don't care how much water you put on top of coal dust. It will sit there. You get down under it, and you're getting nothing but dust. That's all you're doing. You pick the water up and the dust. That's all. You know, it's really rough on us. He got a bad reading on that dust test there. What did he do? He sent that independent back two weeks later to take another one. Lo and behold, that one we go down and we load and shoot. Everything is wet down there then. No dust. For five hours, that dust monitor drawed clean air from the time we started that morning to the time I went back down on the muck cycle and stated mucking. We mucked three hours and got a dust sample for three hours. He takes that dust sample and runs with it. I ain't seen nobody since. I'm telling you, if he's using that, that second sample, he's doing us dog wrong. Like I say, I appreciate any help that you all can do to write us a few laws to help us out in our dust problem. I appreciate that. That's all I got. MR. NICHOLS: Okay. Thanks. (Applause.) MR. NICHOLS: Mike was the fortieth person that presented comments, and it's 7:00. We still have an additional 31. The next 25 I believe are UMW presenters. Do you want to take a break and go on longer, or do you want to adjourn and pick up at 8:30 in the morning? ALL: Adjourn. MR. NICHOLS: In the morning? Okay. The notice said 8:30. Does anybody want to start earlier than 8:30? The notice said 8:30. Let's stick with that. MALE VOICE: 8:00? MR. NICHOLS: 8:00? 8:00. (Whereupon, at 7:00 p.m. the hearing in the above-entitled matter was adjourned, to reconvene at 8:00 a.m. on Friday, August 11, 2000.) // // // // // // // // // // // // // // // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: -- CASE TITLE: Public Hearing - MSHA HEARING DATE: August 10, 2000 LOCATION: Prestonsburg, Kentucky I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Department of Labor. Date: August 10, 2000 Debra Anderson Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005-4018