IN THE MATTER OF:                 )
                                  )
PUBLIC HEARING ON PROPOSED        )
DUST RULES                        )
Pages:    315 through 515
Place:    Prestonsburg, Kentucky
Date:          August 11, 2000
                          DEPARTMENT OF LABOR
                 Mine Safety and Health Administration
     In the Matter of:             )
                                   )
     PUBLIC HEARING ON PROPOSED    )
     DUST RULES,   )
                   Friday,
                   August 11, 2000
                   Convention Center
                   Holiday Inn
                   Highway 23
                   Prestonsburg, Kentucky
              The hearing in the above-entitled matter was
     convened, pursuant to Notice, at 8:01 a.m.
     PRESENT: MARVIN, NICHOLS, Moderator
              RONALD SCHELL
              LARRY REYNOLDS, Esq.
                   THOMAS TOMB
                   GEORGE NIEWIADOMSKI
                   EILEEN KUEMPEL
                   PAUL HEWETT
                   CAROL JONES
                   JON KOGUT
                   REBECCA ROPER
                   RONALD FORD
                                 C O N T E N T S
     SPEAKERS:             PAGE:
     George Hobson               318
     Bill Sharp                  322
     James Bell                  323
     Glenn Loggins               338
     Michael Phillips            340
     Ronnie Griffith             341
     Frank Winstead              342
     Robert Acklin               346
     C.A. Phillips               349
     Bruce Dotson                353
     Mike Green                  358
     Ricky Lester                358
     Chris Taylor                360
     Wyman Owens                 365
     John Nolen                  367
     James Linville              373
     James Jarrell               377
     Joe Urban                   385
     David Gooch                 424
     Rodney Smith                434
     Larry Hatton                438
     Bobby Mullins               440                         C O N T E X T (Cont.)
     SPEAKERS:                         PAGE:
     Tom Wilson                         443
     Joseph Main                        459
                              P R O C E E D I N G S
                                                      (8:01 a.m.)
              MR. MARVIN NICHOLS:  Good Morning, Everybody.
     Welcome to the second day of the dust hearings.  Our first
     presenter this morning will be Jimmy Dunn.  Is Jimmy in
     here?  Is George Hobson here?
              MR. HOBSON:  Yes, sir.
              MR. NICHOLS:  Come on up, George.  We'll work
     Jimmy in next.
              MR. GEORGE HOBSON:  My name is George Hobson.
     That's George, like George Washington.  But the Hobson is H-
     O-B-S-O-N.  I'm from central Illinois.  I'm a Safety
     Committeeman on straight midnights.  I've been a Safety
     Committeeman for close to ten years.  I've got twenty-three
     years in the mines.
              I've read these regs.  I do thank you for letting
     us from Illinois come down here and have our say.  I don't
     understand them, most of them.  I don't agree with a lot of
     things.
              I believe that we are getting less out of it.  And
     from everything I gather, most of it pertains to the
     preamble and a lot of it is not going to be written as
     actual rules or laws.  I don't think that's right.
              And from hearing the one company representative
     speak, the companies are going to come out with a protest or
     whatever on this, or whatever litigation they can.
              And, I think there's going to be abuse.  And, I
     would like to see you sit down and rethink this.
              Instead of going with this preamble, this lawyer
     can sit here and do all his talking he wants, he's still a
     lawyer in my book.  I'm sorry.
              MR. NICHOLS:  This is him, right here.
              MR. HOBSON:  I know it, I know it.  He's still a
     lawyer.  And I'm sorry, I don't trust lawyers.  Unless he's
     on my side.
              But really, I would appreciate you sitting down
     and rethinking all this.
              And of course, Illinois is not represented too
     much out here.  And, we're an endangered species there in
     Illinois, as well as most of the coal miners in this area,
     in this district.
              Not only environmental laws, but the way things
     are in the coal industry today, everything is faster -- when
     I started out, we was running twelve units and we didn't get
     one third the coal that we're getting out now with less
     people.  Our belts are running faster.  Our machinery is
     running faster.
              And whenever you do this, we're putting more coal
     in the air.  And that's the reason why I think we really
     need to be stringent on this dust thing.
              I've gone home -- I'm an examiner.  I'm an outby
     person.  I do go to the faces.  On midnights, we don't load
     a lot of coal because it's supposed to be a maintenance
     shift.  But when they are loading coal, even with the
     scrubbers and stuff -- and, they're supposed to have their
     dust parameters -- if them inspectors are not there -- and
     I'm not saying one side; both sides are guilty.  Our
     people's guilty, too.  We got to talk to them all the time
     about keeping our dust parameters the way they should be.
              So the more inspections, or the more monitoring of
     even the company inspections -- if you take it over, I think
     the company should still be responsible for some of their
     dust sampling, too, to keep on top of this.
              I don't believe the records is going to do it.  My
     opinion is record keeping and you going in to check records
     isn't going to do it.  We've got records on other things
     that the federal is supposed to be in, and our state's
     supposed to.  Somehow it gets juggled around, forgotten or
     whatever.
              So I really think it's in the best interest of all
     miners, and the miners in Illinois, that you sit down and
     rethink this.
              And there's only one other thing that I'd really
     like to -- I see these ladies, they're on this panel, too.
     Right, with you?  Have you ever worn any of this equipment
     that they say would help out if the engineering and
     administrative things can't keep the dust off the coal
     miner?  Have you ever wore any of this stuff?  Respirator?
     I'm not talking about your helmets.  I'm not in with your
     helmets.  I'm like everybody else.  But even a respirator
     and you men with glasses, have you ever wore a mask to do
     painting or any odd jobs around the home?  If you wear one
     of these and you wear glasses, they fog up, they make you
     sweat.
              And in the coal mines, it's not like walking
     around here on the floor.  You're walking over coal.  You're
     falling over stuff that other people might have left behind.
              Like me, I walk along belt lines and stuff.
     There's coal along there.  And whenever I wear anything like
     that -- of course I'm getting old; I'm one of the older
     miners at our mine and I have to wear tri-focals -- and any
     time you put something on my face, it just -- and I've been
     either blessed or punished:  I got a pretty good snout on me
     and there's nothing that they've come out with that is
     custom fitted right now.
              So personal equipment to help out with the dust,
     it's good, but it's not the answer because we're in a
     dangerous environment down there.  And any time you put
     something else on a person, you may help them for dust, but
     it makes other things a problem.
              And our conditions, it's been said, changes by the
     shift.  It changes by the hour in certain weather, by the
     minute.  And the job that I do and other outby people do,
     even though we're not up there where the actual mining is
     going on, our conditions is changing just as much.  And like
     I say, with everything going so much faster, the air is
     moving more.  We've got still the particles in the air.  So
     please, sit down, rethink this.
              And get away from this preamble stuff.
              Put it in writing, if you do make changes, so that
     we can understand it, the company can understand it, and
     their lawyers can understand it, and we wouldn't be tied up
     in court with lawyers doing it.
              And with that note, I'm going to end.  And, that's
     how every Illinois miner that I've talked to feels about
     this.  But again, personal equipment is not the answer.  It
     needs to be whatever you can come up with on equipment, air
     movement or whatever.  Thank you.
              MR. NICHOLS:  Thank you.  Is Jimmy Dunn here?
              MR. URBAN:  I haven't seen him, Marvin.
              MR. NICHOLS:  Tim Birchfield?  Bill Sharp?
              MR. SHARP:  My name is Bill Sharp.  I'm Safety
     Committeeman at Local 1969 in Illinois.  I'm not going to
     beat this dog too much today.  But I would present it, if
     you folks go back to the Advisory Committee and take their
     recommendations and think hard on it, you know, we're trying
     to stomp out black lung.  And raising the dust levels and
     that isn't helping that too much.  And, that's all I wanted
     to say.  I just wanted to go on record.
              MR. NICHOLS:  Okay, thank you.
              MR. SHARP:  Thank you.
              MR. NICHOLS:  Is Birchfield here yet?  James Bell?
              MR. BELL:  Mr. Chairman and the Board, my name is
     James Bell, J-A-M-E-S, B-E-L-L.  I works at U.S. Steel,
     Oakgrove Mine, Local 2133.
              I've been a mine worker for thirty-five and a half
     years.  I served -- I been serving on the Safety Committee
     for the last twenty-one year.  And, I also sits on the State
     Board of Mine Examiners appointed by the governor, mine
     foreman certified, and I've been Safety Committeeman for
     about twenty-one year.  I also serve on the contract
     committee and I sits on the State Council.
              I'm here today because my Local when they heard of
     this proposal, they looked at me because I represent about
     three hundred people at Oakgrove Mine.  And we know, and
     we've been around for a while, I have, underground.  I've
     seen things happen, seen things change, technology change.
              And when I went to work in the mine at Concord,
     U.S. Steel, we was conventional mining.  Well, we didn't
     have the dust that we have now.  But the miners still come
     out of the face, if it was a white guy, you couldn't tell
     what color he was because of the coal dust.
              Well according to the Act, they had to clean up,
     come up with a standard.  We came up with a two milligram
     standard.  It's to help protect miners from black lung.
              And I know we had a meeting in Lexington, been a
     few years back.  And -- excuse me.  We had a meeting in
     Lexington a few years back concerning black lung and coal
     dust.  And we had quite a few people there on oxygen and
     they even testified.
              And, we know that black lung prevails today.
              And at our mine, we also have a longwall and we're
     running two CM units, which is one just starting up.  And,
     we have quite a bit of diesel equipment underground.  And
     from my calculations, looking at diesel equipment and
     looking at respirable float dust, you got two combinations
     there and these two is against the health of the coal
     miners.
              But the thing that bothered our people when they
     looked at this proposal, they was looking at MSHA to lower
     the dust standard, rather than raising the dust standard.
              And from our calculation, from my calculation --
     it was hard for me to understand, I was sitting back here --
     you said you didn't raise the dust standard, but from my
     calculation, I know that when you took one and add one to
     it, that was two.
              The point that I'm trying to make is that if you
     have a valve flowing with water, fifty gallons per minute,
     in order to decrease that to twenty-five gallons per minute,
     you have to close the valve.  You can't open the valve and
     decrease it.
              So my point is that if you raise the standard to
     two point three, that's not decreasing.  That's increasing,
     from my calculation.  I mean, you know, I'm not a college
     student.  Maybe they got some other calculation they can say
     that's a reduction.  But, I can't.
              We also note that the Advisory Committee that was
     appointed, I guess by some of you on the Board here, and
     these fellows went out and did a hard, good job to get this
     thing where it's at.  And from my reading through this
     thing, which is hard for me to understand -- I've been going
     over it for about a week or longer, still can't get the
     understanding of it -- but, I do know that they made some
     advice, giving you some advice and some recommendations.
     And, they're telling you not to raise the standard.  And it
     looks like from your proposal that you did.
              So undoubtedly the Committee that you had, I don't
     know whether it was just a scapegoat or somebody you had to
     have to say you had peoples out there working on it.  But,
     you didn't pay them any attention that much.  But, y'all
     made your own decision because y'all believed that if you
     raised it, it was better to calculate it into two milligrams
     or you would have something to write a citation on.  But if
     it reaches two point one, that was a citation anyway, and
     not only just a citation, we're looking at lowering of dust
     standards so that there will not be a citation with the
     perimeter check that they have around the faces.  I know it
     because I'm a four time Safety Committeeman.  I see a lot in
     the mines.  And, there's a lot needs to be done.
              And I know that with all the technology that we
     have around throughout the coal fields, we come in with the
     longwall, we come in with the continuous miner, now we have
     scrubber miners -- actually you're putting people in dust,
     rather than taking them out of dust.  There's actually some
     of the plans that I rejected as a committeeman as my point,
     that we don't need the people to be in this dust.  We need
     to figure out a way that we can put them somewhere else.
              But it seems to me like I don't know where you get
     this calculation from that there's not as many contracting
     black lung, and they feel that you can raise the standards
     with it, and I don't know why.  But, we need to lower it.
              So I say to you, the Board, today that if you will
     go back, as my Local sent me to ask you this question, would
     you go back and reconsider this thing and look out for the
     miners?  Because the miners are the ones that's going to
     suffer in this coal dust.  It's not going to be this panel
     and it's not going to be the operator.  It's going to be the
     miners.  Thank you.
              MR. NICHOLS:  Thank you.  I'm not a mathematician,
     either.  But, do you understand how this averaging works
     today?  Like let's say you've got four samples.  You can
     have two of them at four milligrams and two at one
     milligrams.  Then you can average that out and be in
     compliance where you've got two miners breathing twice the
     standard, or two locations breathing twice the standard and
     you can average that down to compliance.  That's what we're
     trying to get away from with this single shift rule.
              Now I'll ask somebody else to try to explain the
     correction factor.  Anybody want to have a go at that?
              MS. EILEEN KUEMPEL:  It's a different issue.
              MR. NICHOLS:  Different issue?  Jon?
              MR. JON KOGUT:  I appreciate what you said about
     one plus one making two, and I agree with that.  The thing
     is that what you need to make the comparison with is not the
     two point three against a straight two, but the two point
     three against averaging together five samples.  Some of
     those samples in the upperage, like three or four or
     something, and you can come into compliance, even though in
     those five samples, some of them might be as high as three
     or four.  So that's what you need to compare against, the
     two point three that we're saying we need to have in order
     to have a high enough confidence level to issue a citation
     based on just one sample, instead of five.
              Now if a sample comes in at something like two
     point one or two point two, we're not going to consider that
     as being in compliance.  We're not going to assume from that
     that the person, that the occupation from which that sample
     was taken is in compliance.
              What we're going to do those cases is come back
     and resample, to see if that first sample that we took just
     was higher than two simply because of a measurement error,
     or whether there's some reason to think that there is
     actually -- you know, that the plan is not effective in
     protecting that miner.
              If we get -- if we come back there and again see
     the concentration is at two point one for a second time,
     then chances are we're going to decide that there's a good
     possibility that that plan is not really effective, and
     there's a good chance that we'll go in there and require
     that the plan be reverified.
              Now when we have the plan verified or reverified,
     that shifts the burden of proof to the operator, to show
     that that plan is effective.
              So when we issue a citation, the burden of proof
     is on us to show that they're really out of compliance, that
     it's not just a measurement error.
              But when the operator of the mine has to
     demonstrate to us that the plan is actually effective in
     protecting miners on every shift, the burden of proof is on
     them.
              So even though the standard is a two point zero
     standard, in order to demonstrate at a high confidence level
     that the plan is effective, they're going to have to, in
     order to get that high level of confidence, they're going to
     have to show, if they're going on a single sample -- or
     single shift, rather, they're going to have to show that all
     of the samples that they've taken on that single shift come
     in below about one point seven approximately.
              So even though the standard is two, in order to
     get that high confidence level, and because the burden of
     proof is on them to show that the plan is effective, it's
     not going to be enough on a single shift for them to come in
     at one point nine.  They're going to have to come in at
     about one point seven.
              So that's the same sort of situation that we have
     when the burden of proof is on us to show that they're out
     of compliance based on a single sample.  Does that -- ?  You
     want to say something on that?
              MS. KUEMPEL:  Jon just explained the MSHA position
     on how they're enforcing that.  And, I wanted to add that of
     course the joint rule with the single shift sampling, NIOSH
     has demonstrated the accuracy of the single shift sample.
              But, I wanted to underscore the importance and
     benefits that we all recognize with the single shift sample,
     and also comment on the frequency issue.
              There's been a lot of concern about reduced
     sampling under the proposed plan.  And, I can understand
     those issues very well.
              I also wanted to point out that with the proposal
     for the bimonthly, if you take a situation where there's an
     unannounced visit to take the sample, that sample is used to
     determine compliance.  I wonder whether you would feel that
     that's a more accurate representation of the actual dust
     exposures, compared to a system that's also sampled
     bimonthly, but the conditions are selected and then there's
     opportunities for additional samples which can be averaged
     in and diluted out.
              I think that you can see that the former case is
     more likely to give a realistic determination of the actual
     exposures.  And that, in combination with a more effectively
     running system in the first place, I think are very key
     issues.
              It's equivalent if you have a machine, an
     automobile, say, and you know it's well maintained, you're
     going to feel safer driving that car and checking it now and
     then.  Or, getting in a car that you know is not running
     right or you really haven't checked one way or another and
     now and then stopping to check, it's still not running right
     in the first place.
              The point is to get the system running right from
     the beginning.  I think those are real key issues that would
     help to reduce the exposures.
              In 1995, NIOSH published a criteria document for
     the recommended standard.  And in that and in the joint
     rule, we outline the studies that show that pneumoconiosis
     is a serious problem still.  There's been a lot of reduction
     over the years.  But, it's not eliminated.  And, there is
     still risk.
              And, NIOSH is very concerned about reducing
     exposure to miners.  And, the single shift proposal would
     provide more protection and more realistic samples for a
     given shift.  I hope that helps to clarify.
              MR. BELL:  I agree with single shift samples.
     But, we're looking at this span between them, like bimonthly
     sampling, you have something like fifty-nine days or more
     that a miner would be exposed to high concentrations of coal
     float dust, respirable dust.
              And under the contract that we have, our
     agreement, the United Mine Workers and the operator, in
     Article III, Section 9, it states that we have a right to a
     safe work place.
              If a coal miner would withdraw because of a high
     concentration of coal dust in his area, then it appears to
     me like the burden would be upon the miner himself to prove
     that he has a high concentration of dust.
              And therefore, that's where we come in as safety
     representatives, to be able to call MSHA to give us a
     sample, take a dust sample.
              And at that time while we're waiting there, MSHA
     is not available, don't have anyone available at that time,
     we're at a stand still, and this person could be forced to
     go back in and try to work because MSHA said they could do
     this.  And, we're putting our peoples at risk with the high
     concentration of respirable dust.  And, I don't think that's
     fair to the coal miners.
              I think we need more sampling.  If you're going to
     sample a single shift, I feel like we need more than a
     bimonthly sample.
              If we have something like a monthly sample, or if
     you sample twenty-four times a year, I feel, the coal miners
     would feel that they're being protected by MSHA, even if
     they was doing the samples.
              But the way it looks now is that the burden would
     be upon the miner himself.  And, he's the one that would be
     sitting in the middle.  He'd be sitting in the middle of the
     operator and MSHA.  MSHA's saying, "it's okay because we've
     already sampled and you're in compliance."
              But over here at the same time, this fellow can't
     even see.  Visibility is dim.  And, they're breathing this
     stuff.  Airstream helmets are not really going to help you
     that much because this respirable dust -- we have a doctor
     here and I know, because we have been through this thing so
     many times -- the particles are small enough to go through
     that airstream helmet, along with air that's able to get
     into your lungs.
              So I feel like that we have had shear operators
     come off the face with airstream helmets and their face be
     as black as this mike here, and they have on the airstream
     helmets, so you know the respirable dust is getting to them.
              It's just a matter of time before these peoples
     contract black lung.
              At our mine, we have several Part 90 miners.  We
     had some had to come off.  We got some now that have black
     lung.  It's at a certain stage now.  But, it's still
     prevalent in the mines right now today, black lung, because
     there is so much dust.
              And with these continuous miners, these scrubber
     miners and the shear, longwall shear, and this coal is so
     dry -- in Alabama, the coal is so dry -- it'll be airborne
     in a minute, this respirable dust.
              So, we're looking for your help.  And, that's what
     we need.
              MR. NICHOLS:  This bimonthly sampling, that's the
     minimum requirement.  If District Managers believe they have
     problems with an operator not maintaining the dust controls
     in the plan that's been verified, they can choose to do more
     sampling.
              Plus, I think MSHA is responsive to 103(g)
     complaints.  I mean, if you've got a problem, you have that
     avenue.
              I would just go back to the sampling, you know,
     the way we average today, there are miners out there that
     could be legally out of compliance the way we average these
     samples out.  And, that's not a good situation.  A single
     shift would cure that.  Okay?  Thanks.
              MR. BELL:  I have one more question here.  I agree
     with that, also.
              But, we would like to see some rules in the
     policy, some rules in your policy that states that when the
     company is at a certain point, that this is a requirement by
     MSHA, that you will step in and either verify the plan or
     disapprove the one that we have in place.
              See, the burden of proof right now, what you're
     telling me is upon the miner or the miner's representatives
     to file 103(g), and I don't think that's the way to go.
              MR. NICHOLS:  No, sir, that's one avenue.  If
     we've verified the plan, posted it, the miners understand
     it, the Safety Committees understand it, it seems to me like
     that's pretty good compliance leverage there.
              MR. BELL:  Well, let me ask you another question:
     At the same time when we're out of compliance, or we feel
     that they're out of compliance or not following the
     verification plan, if a 103(g) is called in, what time are
     we looking at that MSHA would respond?  Is this a four hour
     response or twenty-four hour response or forty hour
     response?  But, our people would be exposed to this dust at
     the same time while we're waiting on MSHA.
              MR. NICHOLS:  Well, what's our general response
     time now?  It's pretty good, isn't it?
              MR. BELL:  For 103(g)?
              MR. NICHOLS:  Yes.
              MR. BELL:  Well, we've had several down there, you
     know, and I noticed that it's not 103(g) on the code form.
     103(g) is the one that if you have a regular inspector there
     and he's not well trained in dust control, then he would
     just only go and check whatever he's qualified to check.
              And at the same time, he don't have the
     instruments with him to check for dust.  So the inspector on
     the spot can't really check.  You have to have someone with
     the instruments to check it with.
              So therefore, if you call a 103(g) in on a regular
     inspection, well the inspector, he can't really protect that
     miner, unless he have some means to protect him.  Now, he
     says he can't shut it down unless -- I mean, you know, you
     can say you see dust flying through the air, but this fellow
     is working in a high concentration of dust, but the way to
     prove it is to sample this person.
              And when we've got him in there at this time, we
     need to sample him at this point, not wait two or three
     days.  He might be able to clear it up by that time.
              But then you go right back into that mode again
     because most of the time when 103(g) is called in, it's
     pretty well cleared up before they get there because if they
     know they're coming, they're going to clear it up before
     they get there.
              MR. NICHOLS:  I can only tell you we've got a lot
     of dust pumps in Alabama.  There's three avenues for
     sampling.  One is the minimum bimonthly.  The other is if
     the manager chooses, to do some more sampling and then,
     through a complaint.
              MR. BELL:  Well, we know -- and I'll leave this
     with you in closing, about the miners -- long before I went
     in the mines, I started working in '65, as I reported, but
     prior to that, I was in a community where there was a lot of
     coal miners working in the mines.  We knowed there was a lot
     of coal dust, because there was a lot of exposure around.  I
     got some of the history of some of the mines that was in
     Alabama owned by different companies that had exposure
     caused by a high concentration of float dust.
              And also, we know that a lot of people died over
     the years, and didn't know what they were dying of because
     they didn't know anything about black lung.
              And today, we have a law that is in place, trying
     to help protect miners from this.  And, I think we have
     fewer cases than we had in the previous years, over the
     years, of black lung.
              And, I know the coal miners fought it real hard,
     their leaders fought real hard in the Congress, and in this
     country and in other countries, to try to eliminate black
     lung.  And MSHA even has stickers they put out saying, "End
     black lung forever."  So we see right now that that's just a
     slap in the face from what you said you would do.  And, coal
     miners have fought and fought and fought, and worked hard
     and died, agony in death, trying to get a better work place
     to work and eliminate this coal dust and bad conditions
     underground.
              So we are here today, as my members sent me here
     to this panel, to ask them would they go back and reconsider
     the miners, and think about more sampling, if they were
     going to take control, more sampling, and make sure the
     miners have a clean environment to work in.  That's all I
     have.
              MR. NICHOLS:  Thank you.  I think you can sit and
     disagree with these rules, but I don't think you can say
     that Davitt McAteer, the Assistant Secretary, is not trying
     to deal with black lung disease.
              He has established this x-ray program, where we're
     doing free chest x-rays to try to get around to all the
     miners over a five year period, and then put these rules in
     place.
              Now you can disagree with the rules.  But, you
     can't say that MSHA is not interested in ending black lung.
              MR. BELL:  I didn't say that.  This (indicating)
     says it.
              MR. NICHOLS:  Okay.  Has Jimmy Dunn shown up yet?
     All right, he's off the list.  Tim Birchfield, has Tim shown
     up yet?
              MR. URBAN:  Apparently not.
              MR. NICHOLS:  Glenn Loggins.
              MR. LOGGINS:  Mr. Chairman, and other Members of
     the Panel, my name is Glenn Loggins.  That's G-L-E-N-N, L-O-
     G-G-I-N-S.  I would like to thank you for the opportunity to
     speak.  I'm a coal miner from Alabama.  I'm a UMWA Safety
     Committeeman, Local 2245.  I work at Jim Walter Resources in
     Brookwood, Alabama, Number Four Mine.  I have twenty-three
     years mining experience, twelve years on the longwall.  I've
     been a longwall jack setting and a shear operator.
              We've tried the airstream helmets.  To use the
     airstream helmets, when we tried to use them, we had
     problems with them fogging up.  And in water, dust got on
     the face and you couldn't keep them clean.  The face shields
     just fog up and gets covered with dust and you couldn't see.
              It's hard to breathe.  Filters got stopped up.
     So, we stopped using them because, you know, it's useless.
              We mine two seams of coal.  And, we got fifteen to
     thirty inches to move in.  When there's rock rolls out in
     the face, if you wear an airstream helmet, you couldn't see
     it.  It'll just roll out, and we have people hit with a rock
     without airstream helmet, just from visual problems, not
     being able to see it come across, when they have their head
     down and it'll hit them.
              I feel we have enough hazards on the longwall
     without adding to them.
              Mr. Chairman and other Members of the Panel, in
     May of '96, I spoke to the Federal Advisory Committee in
     Charleston, West Virginia.  I stated how bad longwall dust
     sampling was being manipulated on our longwall in Brookwood.
              We sampled the longwall by 060 sampling.  I
     described how the supervisor would wear the dust sampling
     pump under a raincoat and stay on the tailgate, downwind of
     the wall water sprays, instead of being where the dust, coal
     dust was generated.
              Since that time, MSHA hired that Jim Walters
     supervisor as a federal mine inspector.  We sure appreciate
     that, Marvin.  We're glad he's gone.  And, you solved that
     problem.
              After reading this proposed rule, I want to ask
     you to go back and address the issues the miners raised that
     spoke before.  Thank you.
              MR. NICHOLS:  Thank you.  Mike Phillips?
              MR. PHILLIPS:  Good Morning.  My name's Mike
     Phillips.  Well it's Michael, M-I-C-H-A-E-L, P-H-I-L-L-I-P-
     S.  I'm Safety Committeeman at Shoal Creek Mines, Local
     1948.  And, I want to appreciate what y'all are trying to
     do.  It sounds good, if you can understand it.  I can't.
              But, you're looking at a third generation coal
     miner.  And, I'm the last.  The first two are gone from
     dust.  If you'll look around this crowd, you'll see a lot of
     people that probably won't be here much longer, because this
     dust is killing us.  You just don't understand, unless
     you're in it.
              The single sampling, I don't understand it.  I
     hope it works.  But, I wish that you would really look to
     the people and take it in your heart to do the right thing,
     because it is killing us.
              I could sit here and talk about airstream helmets,
     longwalls, I've been on all of them.  I got nearly thirty
     years.  But, y'all have heard it.  I don't need to say it.
     I hope you understand what I'm trying to tell you, and take
     this to heart.  These men are serious.  Thank you.
              MR. NICHOLS:  Thank you.  Marcus Shepherd?  Ronnie
     Griffith?
              MR. GRIFFITH:  I'm Ronnie Griffith.  I work with
     UMWA.  I'm on Safety Committee at 1948, Shoal Creek,
     Alabama, work for Drummond Coal Company.  I appreciate the
     time y'all took to listen to us.
              But these six shifts y'all come up with, all y'all
     going to sample, we got two hundred and eighty-three pieces
     of diesel equipment in our mines.  We got two longwalls and
     they're talking about putting another longwall in.  We got
     seventy-five people outby.  And, I was watching this morning
     out here on the highway, we got three and a half to twenty-
     five inches -- we have two roadways.  The people at the face
     are eating a lot of dust.  But, our outby people are eating
     it, too.  I talked to a boy just before I left, forty-nine
     year old.  He's got thirty years in the coal mines, just
     like I have.  Forty-nine year old, he worked outby the last
     ten years, he's pulling an oxygen bottle behind him.
              And until you sit and see one of your union
     brothers -- this is ludicrous to go from thirty-six to six
     shifts taking dust samples.  Dust is killing us.  You ain't
     got to be fifty-eight or sixty-eight to have black lung.
     We've got approximately eight people that the doctor has
     took out of the mines since '96 at our mines.
              And you know, when I was a young boy, I listened
     to coal miners talk and I thought, "boy, I know all about
     coal mines."  But until you go in there, it's a different
     ball game.  It's a monster that'll eat you up.
              And, I'd appreciate it if y'all would go back and
     take this, because when we go back to Shoal Creek and try to
     explain this to our people, they're not going to buy into
     this.  It's going to be hard to sell to them, because when
     you go home at night and clear your throat and you spit old
     black dust out of your body, I can tell them all this is
     going to work, they told us up there this is going to work,
     this'll be good for us.  They're not buying into this.  And
     I'm asking you to go back and really take a hard look at
     this.  That's all I got to say.
              MR. NICHOLS:  Okay, thanks.   Is Shepherd here
     yet?  Frank Winstead?
              MR. WINSTEAD:  My name is Frank Winstead, F-R-A-N-
     K, W-I-N-S-T-E-A-D.  I'm from Local 2305 and I'm a Safety
     Committee Member.  I intend to keep mine short and to the
     point.  The first thing is when we sample, what is our
     objectives?  If our objectives is to get a good,
     representative sample to work with, we should sample more
     frequently in everyone.
              Everyone knows that we have good days and we have
     bad days.  Some days our systems just won't work.  To really
     know what a person is working in, we need to take a lot of
     samples each year.
              We feel that random sampling by MSHA keeps the
     companies more honest.
              I also believe that hanging more weight on the
     workers is wrong.  We already carry a great deal of weight
     in an awkward way.  We all seen the guy that was sitting
     back here with the apparatus.
              Who here is from NIOSH?  Okay.  If I put a brick
     right here, and do this (bending from waist) for a year for
     eight hours a day, is that going to injure my health in time
     to come?  That's the point I would like to make to you.
     Everyone that has talked so far wants engineering changes
     that involve things like water sprays, scrubbers, air
     velocities, wetting agents, not heavy equipment that hangs
     on miners' bodies.
              I also feel that you should keep the language
     simple.  Why do you want to make things so complicated?
     When you get down to it, what it's supposed to achieve, it
     can be made real simple.  When things are made complicated,
     people tend to think that someone is trying to hide
     something from them.
              And from the sound of what I've already heard,
     there is a lot of untrust out there.  Why is that?
              I can compare this seven hundred page proposal to
     trying to fill out my income tax.  To get the best results,
     I have to hire somebody to tell me how.  That by itself is a
     major injustice to all the miners that it affects.  I think
     it should be more concise.  No if's and but's.
              Also, there should never be any avenues that an
     operator can take if they can not comply, because if it
     takes less effort, these are the avenues that they will
     probably want to take.
              Continuous monitoring is the best way for a good,
     representative sample.  I believe it can be done and done at
     a low cost to MSHA.  We need a good, representative sample
     to work with, if we are truly to address the problem.
              This is a very important issue to these miners in
     this room.  We are all trying our best in our own ways to
     let you people know we are truly concerned.
              We want more than this.
              In conclusion, I think you should go back and look
     at what the Committee recommended.  Come back with something
     simple and concise that keeps the levels, all the levels
     less than two milligrams.
              Sample everyone on a frequent basis.  Make it a
     rule.  Thank you.
              MR. NICHOLS:  Thank you.
              MR. HEWETT:  I wanted to ask him some questions.
              MR. NICHOLS:  Frank, can you come back up?
              MR. HEWETT:  Yes, this is Paul Hewett of NIOSH.
     Did you say you work on a longwall?
              MR. WINSTEAD:  Yes, sir, at one of our mines, I
     worked on a longwall for a while.
              MR. HEWETT:  Okay.
              MR. WINSTEAD:  I'm not currently.  Currently I'm a
     belt examiner.
              MR. HEWETT:  Low coal?
              MR. NICHOLS:  Hey, Frank, will you move over and
     speak into the mike there?
              MR. WINSTEAD:  Am I all right now?
              MR. HEWETT:  This is a low coal longwall?
              MR. WINSTEAD:  Well, it's between forty-eight and
     fifty-two inches.  I think that's pretty low.
              MR. HEWETT:  So whenever you get under the shield,
     it's going to be --
              MR. WINSTEAD:  Right, even lower than that.  At
     times, it's really low.  At times, you know, we're really
     bent over.  I think I know what you're getting at.
              MR. HEWETT:  You never have any chance to stand
     up, do you?
              MR. WINSTEAD:  Right -- well, no.  No, unless you
     get to the headgate, and it's possibly, probably this
     (indicating) angle most of the time.
              And then, the operators have something in their
     hand, so they don't have the -- they can't do this
     (indicating).  They can't prop their weight, the weight that
     they have out here, this arm, it affects you right here.
     You people deal with that a lot more than I do.  You know a
     lot more about it.
              MR. HEWETT:  I just wanted to clarify that.
     Marvin, is it possible for me to find out how many longwalls
     have restricted head space, that are below a certain head
     height?
              MR. WINSTEAD:  Ninety percent.
              MR. NICHOLS:  Yeah, we have that, can get that.
     Thanks, Frank.  Okay.  Robert Acklin?
              MR. ACKLIN:  Good Morning.  My name's Robert
     Acklin, R-O-B-E-R-T, A-C-K-L-I-N.  I work at U.S. Steel,
     Local 2133, District 20.  I got thirty years in the mines,
     and I am a Safety Committeeman there.
              First of all, I'd like to say that we need more
     sampling, more than six times a year.  To me, that's
     ridiculous.
              And, I wanted to touch bases on what the young
     lady over there said this morning, that sampling -- I mean,
     announced visits or unannounced visits would help.  And, I
     don't really know if that will.  I think basically it
     wouldn't, because before you go on, we have to let the
     company know exactly where you're going.
              When we get there, they are ready for us.  They're
     ready for their sample.  In fact, if they're not ready
     exactly, I have seen times where equipment would break down
     where they can't sample it.  I don't know if that's
     accidental or however you want to say it.
              And what you said this morning, Mr. Nichols, about
     the 103(g), it's the same thing.  Before we go on there, you
     have to let the company know.  MSHA has to let them know why
     they're there, if they do have a 103.
              Once we get to that area, it's already been taken
     care of or they're ready for us.
              If the sample is going to be good, I just think we
     need to have it more than six times a year because we need
     to keep the operators on their toes.  And I think having it
     more than six times will keep them on their toes, because if
     you just go that little few times, they're going to always
     be ready for us.
              The testing on the outby people once a year,
     that's definitely not enough, by far, by any means.
              We miners here have been put in dust far too long.
              The survey that has been taken that it was 18,245,
     I think, coal miners that has died from black lung -- and,
     that dust is really a killer.  We don't none of us want it.
              What I want to know is if we did get it, we
     couldn't get benefits for it because everywhere you go, they
     say you don't have it.  I'd like to know if we did, we
     wouldn't get any kind of benefits for it.
              And being a Safety Committeeman, I want to touch
     bases on one thing, the airstream helmet.  I get plenty of
     complaints all the time about the type filter that's in
     there.  It used to be white, I think.  The filter used to be
     white.  They could breathe out of it better.  But, that's
     supposed to be discontinued now.
              The filters they have now, they can't breathe out
     of.  It fogs up.  It's just miserable for them.  And then
     when they do come out of the mines, the shear operator and
     everybody is like my people said, just be black as this
     microphone.  And, the dust is still killing them.
              Before I became a Safety Committeeman, I was a
     miner operator.  And to show you how the dust can kill, it
     got to the place that I started coughing it up, dust and
     stuff, every night in the shower.  And, I would really get
     sick from it.  And I know it had to be that way because I
     don't get that way any more because I'm not cutting any coal
     any more.
              So I would like for everyone to think, and just go
     back to the drawing board and look at this again.
              We have been in and out of compliance at our mine
     several times on different occasions.
              I don't have the answers.  I wish I did.  But, all
     we need -- asking of you is to help us, not hurt us.  Thank
     you.
              MR. NICHOLS:  We don't think sampling is
     unimportant.  But, what we think is important is compliance
     day after day after day, good plans that are verified that
     will work, that miners understand, that mine operators
     understand, that MSHA understands, and that these controls
     will be in place every shift, not that we come out and
     sample and it's just random sampling, but there's a purpose,
     that we've got good, workable plans and sampling to check
     those.  Thanks.
              MR. ACKLIN:  Thank you.
              MR. NICHOLS:  Lewis Burke?  C.A. Phillips?
              MR. PHILLIPS:  My name is C.A. Phillips, C,
     period, A, period, P-H-I-L-L-I-P-S.  I am a member of Local
     Union 6026 located in Coalwood, West Virginia.  I have been
     a member of the local for twenty-seven years.  I am
     presently employed by the United Mine Workers of America.  I
     have been with the Mine Workers for approximately twenty
     years.  I live in Bluefield, West Virginia, and have been
     employed by the Mine Workers for the last twenty years.
              I'm not going to pass too much on what went on
     yesterday.  But I have some issues that are key to me
     personally that I'd like to bring out in a prepared
     statement.
              Despite years of demands for increased miner
     participation to help oversee the respirable dust sampling
     program, the proposed rule does not contain those.
              MSHA's announcement that they are giving miners
     increased rights to participate in plan verification
     sampling does not exist.
              Can you show me where in the rule it's located,
     that this does exist?  Of course from the comments I heard
     yesterday, the answer is no.
              MSHA's proposed rule did not address miners'
     participation.
              All things said, the MSHA proposed rule takes
     rights and protections away from coal miners.  Miners have
     been demanding the right to have increased participation in
     the respirable dust sampling program for at least a quarter
     of a century.
              Given the fact that so many miners have fallen
     victim to the unhealthy coal dust in mines and the dust
     sampling program has been corrupt over the years, they
     deserve the rights to have representatives overseeing the
     dust program.
              I agree with the Advisory Committee's
     recommendations.  It calls for an increase in miners'
     participation without loss of pay in specific
     recommendations sent to the Secretary of Labor.
              Those recommendations 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 and
     extraction of data and training of miners.
              By the way, where in the rule does it require
     continuous dust monitors?  Of course, we talked about that
     yesterday.
              I can remember talks about continuous dust
     monitors for years and years.  I am a firm believer that a
     rule requiring the use of continuous dust monitors in the
     nation's mines is long overdue.  This technology can serve
     to reduce and eliminate pneumoconiosis in the nation's coal
     mines.  This technology is available and feasible.
              Have we forgotten about the Mine Act?  The
     Advisory Committee called for the development and use of
     continuous dust monitors for compliance, surveillance and
     controlling dust.
              We need to implement rules to protect the nation's
     miners from unhealthy coal mine dust.  We all must not
     forget our most precious natural resource, and that is the
     coal miner himself.  We need rules to keep them healthy and
     alive.  We must not continue to chip away at the very
     document that was written to protect coal miners.
              In the part of West Virginia, southern West
     Virginia and northern West Virginia that I cover as an
     International Rep, I come across employees who are working
     in the outby areas, and they continue to be exposed to
     respirable dust.
              The West Virginia Workers Compensation benefits
     are continually being paid to these employees, benefits that
     they deserve due to the fact that they have been exposed to
     the dust.  And, percentages are increasingly getting higher
     and higher.
              You mentioned yesterday how you all get your
     information.  And, I think the answer to that was the MSHA
     folks in the field.  I think you need to consider the
     comments of the people who work in the coal mines today, and
     please listen to their demands and act on their request
     immediately.
              MR. NICHOLS:  Thank you.  Has Lewis Burke shown
     up?  Okay.  Our next presenter will be Dr. Jim Weeks, and he
     has asked for I believe about forty-five minutes.  So how
     about if we take about a ten minute break before Dr. Weeks
     comes up?  Let's be back at 9:15 ready to go.
                             (OFF RECORD)
              MR. NICHOLS:  Okay, let's get started back.  Jim
     Weeks was on the list twice and he's only going to present
     once, and has chosen to take the later sign-up time.  So, is
     M.E. Green available, Green?  Charles Tipton?  Bruce Dotson?
     Go get them, Joe.  I've called M.E. Green, Charles Tipton
     and Bruce Dotson.  Are any of those -- okay.
              MR. DOTSON:  Good Evening.  My name is Bruce
     Dotson, D-O-T-S-O-N.  I work in District 17, Local 1511,
     Phelps, Kentucky.  All I can ask is has anybody on the panel
     had anybody to die from this disease?  It's a bad disease,
     and it's a worse death.
              Only thing I can say, the sampling part I
     understand.  I think there should be more.
              It's like insurance, you ladies and gentlemen,
     just like car insurance.  Y'all are our insurance policy.
     And every man and woman that works in the coal mines, their
     lives is in y'all's hands.  And, I think y'all have done a
     good job.
              But, I'm not asking you to go back.  I'm begging
     you to go back.  I appreciate your time, and thank you a
     lot.
              MR. NICHOLS:  Thank you.  Is M.E. Green here?
              MR. GREEN:  Good Morning.  My name is Mike Green,
     M-I-K-E, G-R-E-E-N.  I work for Local 1713 in West Virginia.
     I work for U.S. Steel Company.  I just have a couple of
     questions.
              Yesterday you talked about -- I worked on longwall
     a long time.  We have a real low longwall.  And, you talked
     about being downwind of the shear.  We don't have a shear,
     you know.  We have a plow.
              And, you talked about a small area downwind of the
     shear.  And I'm wondering, you know, that sounds to me like
     that's just a small area for a small, limited amount of
     time.
              And on our longwall, the area downwind of the plow
     could be the majority of the face, you know, for a whole
     shift at times.  You know, you can still run above that.
              So what I was worried about was, you know, when we
     have problems downwind of it, the majority of our people,
     mostly maintenance people, but could be foreman and other
     helpers, they would be working in that area for sometimes
     the biggest part of the shift.  It just didn't sound good to
     me, you know, the idea of just put those helmets on because
     you know, we've had them probably -- we've had them
     available to us for ten or twelve years, and they never did
     go over too good.
              Only the people on the headgate in the high top,
     where they could stand up and they weren't very mobile
     during the shift, they pretty much stayed in one place, they
     were the only ones that would wear them for any length of
     time, you know.  Most people just gave up on them.
              They couldn't -- you know, mechanically they were
     constantly a problem, the batteries, the motors, the little
     fan motor.  They hated them where we work, you know.
              But, I just wondered about that little area there
     that you had referred to, Marvin, as a small area.  But at
     times, that's our whole, almost our whole face.
              MR. NICHOLS:  I referred to it as a small area,
     looking at an entire mine.  The MSHA position is that
     engineering controls have been a long time available for
     continuous miners and roof bolters, everybody else working
     in the mine and generally, the longwall.
              But, there are situations where we believe that
     this piece, working downwind of the shear operator, that it
     may or may not be in compliance.  Is your longwall in
     compliance with the two milligram standard?
              MR. GREEN:  They say it is a lot of times.  But
     you know, I don't believe it is.  You know, if you're
     anywhere near that thing when it comes by, you can't see for
     a long time.  I mean, I would doubt it.
              And it's very low.  You know, you have to wear
     knee pads and crawl constantly.  There's nowhere where you
     can get up.
              MR. NICHOLS:  Well, our idea was that if there are
     situations, rather than try to keep fooling ourselves that
     there is compliance in this one area, that we do something
     to protect the miners.
              You know, this agency would truly love to not see
     any requirement for airstream helmets, that engineering
     controls could take care of the whole problem.  But, we
     don't want to fool ourselves, either.
              And when I said small area, it is a small area if
     you look at an entire mine.
              MR. GREEN:  I was thinking in reference to a small
     area on the face, you know.  And, I believe I heard you all
     say yesterday that the outby, you know, this one sample, I
     forget, outby, I was amazed that you only had eight
     violations.  Is that correct?
              MR. NICHOLS:  Yes.
              MR. GREEN:  I've been working probably in the last
     six or seven years outby a lot, and I'm just amazed that the
     dust in certain places outby, you know, preparation plants
     and we have a big preparation plant that's really dusty, and
     even our haulage where we haul supplies in or equipment we
     haul supplies in, has a lot of sand on it, and I've heard
     that sand is very high in silica content.  And it's an
     extremely dusty situation there.  And, you're always having
     to refill those sanders, especially this time of year when
     your track is wet and you know, you just see those huge
     clouds of dust, you know, when you're on one of those things
     constantly during the shift.
              And, I don't think I've ever seen them dust pump
     those motormen that run those motors.  You know, I guess
     they do.
              MR. NICHOLS:  Did you want to say something?
              MR. SCHELL:  The only thing I can tell you is what
     our sample results show.  And, they really do show lower
     amounts of non compliance.  We do run into dust generating,
     or, you do run into dust outby.
              Maybe the reason you're not seeing the over
     exposures is remember, we're talking about eight hour
     samples.  So, you can get spikes.  Just like on the face you
     can get spikes.  But when you average it over the eight
     hours, they don't exceed the standard.
              We are concerned about silica outby.  And if
     you've got that concern, that we're not sampling outby, I
     suggest you contact the district and have them sample that.
              As I said, their basic way of controlling dust on
     outby areas is to go to the dust generating sources.  I was
     talking yesterday, rather than sampling occupations, we
     sample the area where the dust generating source is.
              So if we're not hitting the proper sources, you
     can be very helpful to us by bringing that to our attention.
     And, we will go out there and sample it.  And if it's a
     problem, it should be made a designated area, so we won't
     miss it.
              MR. GREEN:  Another thing on that outby, that one
     time a year, to me if you've got dust, you got dust.  Even
     though you have less trouble outby, I don't know, it just
     seems like if you're going to do it a certain number of
     times, you know, underground, you ought to do the same
     outby.  Dust is dust.  Even though you don't get that many
     violations, that's just my opinion.
              The only other thing I have, I heard y'all talk
     about this maybe personal continuous monitoring.  That's the
     best thing I've heard here in these two days.  I mean, I'd
     never heard that before.  I think that'd be a wonderful
     thing.  I'd just like to see that happen.  I think that'd
     eliminate a lot of our problems.  That's all I have.  Thank
     you.
              MR. NICHOLS:  Okay, thank you.  Is Charles Tipton
     here?  Rick Lester?
              MR. LESTER:  My name's Ricky Lester, R-I-C-K-Y, L-
     E-S-T-E-R.  I'm from District 17, Local 1511.  I've been in
     the coal mines approximately twenty-five years.
              From what I've heard said, the outby sampling is
     once a year.  I worked outby for approximately nineteen
     years.  Never had a dust pump on me.
              Outby, there's as much dust as there is -- not
     inby, but there's a lot outby.  A whole lot.  You're saying
     you want to sample six times a year?  Why not twenty-six
     times a year?
              There's a lot of dust in the coal mines.  It's
     going to be there.  We all know it.
              You say this two point three three is the average
     on a one day sample, then they're out of compliance on these
     new regs?  On a five day sample, they go to a four, one, two
     or whatever, then it's averaged out to a two.  Why not stay
     at the two on a one day sample?  Why go to a two three
     three?  In the end, you're getting more dust, whether it's
     one day or five days.
              You said -- I believe it was stated that we're
     underground approximately four hundred shifts a year.
     You're wanting to sample us six times out of four hundred?
     Those, the percentage there is way low.
              I can see a whole lot more sampling needed in
     areas, other than UMWA mines.  UMWA mines need sampling.
     Non union mines need sampling, because we're all coal
     miners.  In past history, non union has a lot worse cases
     than we do, because they're treated differently, because if
     an inspector shows up, they'll just shut the place down and
     say, "we're not working."  They have to come back.
              Well when they come back, they're waiting on them.
     They're ready.
              The other three hundred and ninety-four days a
     year, they're running out of regs, because they've got no
     say.  They've got no Safety Committee to handle their
     problems.  If they speak up, they're gone.
              So if you sample those guys six days a year,
     you're doing a total injustice.
              The union does have Safety Committees to see that
     everything is in place.
              Everything is not right in our mines.  There is no
     mines that can run one hundred percent day in and day out
     properly on dust.  There is spikes.
              At the same time, you're saying six times a year
     is enough, minimum.  It could go to thirty times a year if
     they stay out of compliance.
              If you receive a lot of budget cuts, you're not
     going to have the money to send an inspector to a mines to
     do it thirty times a year.  They'll end up being a minimum
     of six, is what will happen.  That's all I have to say,
     except your regs needs to be changed in my opinion.
     Appreciate it.
              MR. NICHOLS:  Okay, thank you.  Chris Taylor?
              MR. TAYLOR:  Yes, my name is Chris Taylor, C-H-R-
     I-S, T-A-Y-L-O-R.  I'm a member of District 17, Local 1511.
     I'm the Health and Safety Committeeman at our mines.  One of
     the biggest problems I have is on this six and one thing.
     And as an outby, I've been outby probably twelve years.
     I've been in the mines a total of twenty years.  And we
     experience at times more dust than what you do in the face
     area, because we're considered outby and they'll have us
     back down these back lines -- ours is an old mine -- and
     I've seen it so dusty that once you've hauled a load, load
     of gob or whatever, you couldn't see your way to get back
     down to where you was.
              And, what is going to keep these coal companies
     from sending us, especially where it's going to be
     announced, what's going to keep them from sending us in an
     area where there's more or less no dust for that one shift,
     because they know that they're not going to be back again
     until the next year?
              So the one time a year, it just blows my mind that
     the outby people is just going to get sampled once a year.
              And the question that I probably have, that's
     bothered me throughout these whole hearings is what is your
     point, what are y'all afraid of finding out with this
     continuous monitor?  If y'all want to know what we breathe,
     day in and day out, if y'all set up this continuous
     monitoring, then y'all can find out exactly what we do
     breathe day in and day out.
              But otherwise, just like all my brothers have
     said, they're going to be ready and they're going to have
     everything just right the day that they're monitoring.
              Then these other days, they don't care what they
     put us in.
              So, that's probably the biggest question I have is
     why have y'all gone completely away from the ideal of the
     continuous monitoring.
              MR. NICHOLS:  Well, we're not afraid of continuous
     monitoring.  We'd like to have it.  We don't think the
     technology is there right now that's usable in the mine.
     Paul, you want to say anything else about that?
              MR. HEWETT:  I'm Paul Hewett with NIOSH.  When the
     Bureau of Mines was, as an agency, eliminated about one
     third of the Bureau of Mines members came over to NIOSH.
     Those mainly related to doing work with health and safety.
              And therefore, we then took over responsibility
     for the development of the machine mounted continuous
     respirable dust monitor.
              And, it has been tested in both laboratory and
     field, and found to be fairly accurate in the laboratory.
     But in field tests, it was found just not to be durable in
     its present development form.
              And the feeling was -- the opinion was that it
     would take a great deal more money to rugged-ize that
     instrument so it would last.
              The original intention was to put it on a
     continuous miner or mount it on a shear or somewhere down
     the longwall.
              If you mount it on a shear, mount it on a
     continuous miner, it's subject to quite a bit of rugged
     abuse, or quite a bit of abuse.
              And it just, as it's presently developed, it's not
     rugged enough to survive.
              And then you have issues relating to measurements
     where it is located, which is usually not where the miner's
     at, particularly on a remote mining unit where the operator
     is standing considerably back from the continuous miner, but
     that's where the machine mounted unit is located.  So what
     it measured would not be the same thing as what the miner
     would experience.
              But we have -- we are continuing to develop other
     instruments.  The technology used in the machine mounted
     unit is currently being evaluated with a good deal of MSHA
     funding.  NIOSH is working with it, but using MSHA money and
     part NIOSH money, to develop a personal unit that could be
     worn by a miner day in and day out, and would give a good,
     reliable end of shift indicator of what the exposure was
     during the shift -- at the end of the shift, and at points
     during the shift.
              We're also looking at other separate technology
     that is very, very promising.  We have some very bright
     engineers at the Pittsburgh research lab that are working on
     a personal respirable dust monitor.  Or, they call it a dust
     dosimeter, that is expected to give a very good end of shift
     reading.  Therefore, you would have to wait ten days or so
     to get a measurement back from the MSHA lab.
              So, we're continuing to work on it.
              But, I would like to point out it's far more
     difficult to develop a continuous dust monitor than it is a
     gas monitor.  A gas monitor doesn't have any moving parts
     and has been rugged-ized for a long time and you know, has
     been utilized.
              To do the same thing with a machine that has
     moving parts, has complicated computer equipment on board
     has proven to be very, very difficult.
              We figure it was going to take quite a few more
     dollars in development funds to continue working on that
     particular instrument.  And even in the end, the per unit
     cost was going to be considerable.
              So, we decided to invest what monies we had in
     simpler technologies that would be wearable by individual
     miners.  So, that's where we're at today.
              I'd like to mention -- I don't know where this
     will go, but I think it's probably appropriate for NIOSH to
     examine where we're at with the use of continuous monitoring
     equipment and perhaps, have a mini symposium or a workshop
     where interested parties could come and voice their concerns
     and we could bring everybody up to date as to where we're at
     with research on this technology.  So, that's something that
     I'm going to take back to NIOSH and see if we can move
     forward, at least on that front.
              MR. TAYLOR:  The last thing that I have to say to
     you guys -- and, I appreciate y'all listening to us -- is
     you know, go back, you know, to the drawing board and really
     take a look at this six times a year, versus one time a
     year.  That's all I have to tell you.
              MR. NICHOLS:  Thank you.  Wyman Owens?
              MR. OWENS:  My name is Wyman Owens, W-Y-M-A-N, O-
     W-E-N-S.  I work in District 20 for Drummond Company, Local
     1948, Shoal Creek Operation.  I've been in the mining
     industry for twenty-eight years.
              I can sit up here and talk about the things that's
     already been discussed and do the head bashing and the bad
     mouthing, the dumping on MSHA, on the industry as a whole.
     But, I'm not going to do that.
              I'm going to ask you, why are we here today, and
     look at where the 1969 Health and Safety Act employed you
     people.
              Our people were crying for years for help.  And,
     we finally got some help.
              We got relief in 1969.
              The maimed, bloody, horrible deaths, burned,
     charred, diseased people gave you a job:  To protect the
     miners, to help those miners, not take away.
              If we can't do anything -- and, we've heard the
     industry, the coal operators' arguments over the years.
     "It's not feasible, it's not manageable."  It's not this,
     it's not that, excuses.
              And, you look at the proposal -- and, I'm sure
     that you people put some time and energy and funding, but
     you didn't go far enough.
              You got to look at what the purpose of the 1969
     Health and Safety Act resolved at that time, and evolved
     into an era, to approximately the mid seventies, it had to
     be revised because it was not implementable, according to
     the coal operators, or it wasn't feasible or it wasn't cost
     effective, "it's putting us out of business."
              Well, you can listen to that.  But, you have to
     remember why you're here.  Take that for a thought, because
     I'm not going to go into all the -- and, you've heard the
     argumentation.  You've heard our concerns.  You know where
     we're at.
              And to the point of saying that, you know, this is
     a guaranteed plan that's going to work or the rules, you
     know yourself if the coal operators were intending to do
     right, they would've done right before 1969.
              And, that's where you people came in, to protect
     the working folks that was going into those environments,
     extracting that coal, that cried and pleaded for help for
     years before they got relief.
              Well, those same folks is crying again in a louder
     voice, more sophisticated mines, more new technologies, but
     we're a little bit smarter than what our ancestors were, our
     forefathers, because in the old days, we wouldn't have had
     no resources, or we wouldn't have had the privilege to come
     here and sit before the board and discuss the concerns of
     our people.  Well, we do that now.
              You didn't go far enough.  You didn't follow the
     recommendations of your own committee.
              And we're asking you, remember why you're here, to
     protect, not take away.  Let's don't extract nothing from
     that program.  Don't extract nothing from the rules, unless
     we can better them, not take away.
              Let's don't take no backward steps.  That's all
     I'll ask you.  Thank you.
              MR. NICHOLS:  Okay, thank you.  John Nolen?
              MR. NOLEN:  Mr. Chairman, Ladies and Gentlemen of
     the Board, I thank you for this opportunity to come forward
     and speak with you.  I'm John Nolen, J-O-H-N, N-O-L-E-N.
     I'm the President of Local 1948, Shoal Creek Mine, District
     20.  Our mine's located in Adger, Alabama.
              The bad thing about being this close to the end of
     the testimony is you run out of anything to say.
     Everybody's said it all.   But, I would like to say
     something on a few of these things that guys have already
     talked about.  Now, I don't know how to pronounce your name,
     but Eileen --
              MS. KUEMPEL:  Kuempel.
              MR. NOLEN:  Ms. Kuempel, you were talking about
     unannounced visits at the mine.  These operators over the
     years have become very, very talented at adapting to a
     federal visit.
              A federal man can come in just in time to get on
     the elevator, ride down with the men and go to the face with
     them.  And they can make their adjustments as they are on
     the running shift.
              There is no such thing as an unannounced visit.
              As Reginald Stallard was speaking yesterday, he
     said that the operator would not let them bolt in dust when
     sampling occurs.  It happens every day.
              Every time a federal man comes, they keep you out
     of the dusty areas.  They won't let that dust pump be in
     that area where it'll pick up that dust.
              The next day when that federal man is not there
     taking dust samples, they're right back in it.  And they're
     in it the next day and the next day and the next day.  It
     doesn't let up.
              You people have no understanding of what goes on
     down there.  These operators don't care about human lives.
     And, it makes me angry.
              And I sit here and I say this, this (indicating)
     is an injustice to us.  It's a farce.
              You're trying to take our dust sampling away from
     us.  You're trying to increase the maximum level that we are
     allowed to breathe.  This is my life.
              If this operator can't afford to put in
     engineering dust controls, let him close his mine.  I don't
     want to work in it.  It is his obligation to give me a safe
     environment to work in.
              Our current laws are a joke.  And, I'm telling you
     like it is.  I'm angry, yes.  And, I don't mean to be
     abrupt.  But, this is just the way it is.
              William Sawyer came up here yesterday.  He talked
     to you people.  He told you about when they come down for
     dust sampling, they clean the water sprays on the miners and
     shears.  Okay?  They close down for that.  They're not
     producing like they would be producing on a normal day.
              On a normal day, if there's enough water running
     through that machine to keep those motors on that machine
     cool, they run it.  They will not shut it down for anything.
              And, you're talking about increasing the allowable
     levels downwind of that shear to three point nine
     milligrams.  What's that doing?  It's creating more float
     dust.  It's creating respirable dust.
              The filters on these breathing apparatus that we
     use, they don't even filter out the respirable dust in that.
     All they take is the larger particles.  We're still
     breathing the respirable dust.
              We heard from Mr. Kelsey, one of the operators, or
     he was speaking for the operators.  By his testimony alone,
     you should have made a decision this isn't even worth
     having.  I sat back there and listened to it and I was
     appalled to hear how little respect he had for the lives of
     miners that work for him.
              Operators are diabolical.  They don't care if you
     live or die.  Just don't die on their property.  And, I
     don't know of a single person that's died from black lung on
     coal mine property.
              I want to ask you a question, then I'm going to
     close.  I told you how diabolical these companies are.
     Think about it in your own mind -- this question doesn't
     require an answer -- how diabolical are you.  You think
     about these men behind me right here.  Are their lives worth
     anything to you?  They are to me.  Thank you for listening.
              MR. NICHOLS:  Wait a minute, John.  Yeah, they are
     worth something.  They're worth a lot to us.  If you work at
     Shoal Creek Mine, I dare say that there's hardly a day goes
     by that you don't see an MSHA inspector, probably more than
     one.  Now if you have these shenanigans going on at Shoal
     Creek Mine, you ought to be talking to these inspectors.
              MR. NOLEN:  These shenanigans go by because he
     reads the sampling off of the cycle that the operators cut.
     If they skip a place and don't stay on cycle, they might say
     the place was a header cut and had to go back, anything.
     They can work these things out to where they work in their
     favor.
              MR. NICHOLS:  You can choose not to agree with
     these rules.  But if you're looking for an absolute, that
     nobody in this world is ever going to cheat again, I don't
     think anybody's going to give you that assurance.
              What we're trying to do is put together a program
     that would give us on a single shift the real working
     conditions, exposure that these miners are exposed to on a
     daily basis, and trying to put some accountability into
     these plans we approve, that they really work.
              Why don't you (to panel) show them what we're
     trying to do, what we're doing with averaging right now?
              I know at Shoal Creek, you've got inspectors there
     all the time.  I don't like hearing -- if these shenanigans
     go on after you talk to the inspector, that's one thing.
     But, we've got people there to inspect those mines.  And if
     you know of these things being done, you ought to be talking
     to them.
              MR. NOLEN:  They will be talked to.  That's all I
     had to say.  I'm going to return to my seat.
              MR. NICHOLS:  Okay, thanks.  Jim Linville will be
     next, if he wants to come on up.
              MR. KOGUT:  This is is an example of what I was
     talking about before under the current system.
              MR. NICHOLS:  Wait.  Get the mike.
              MR. KOGUT:  This is just a specific example of
     what can happen under the current system and the way we're
     proposing to take care of that kind of problem under the
     proposed system.
              On the current system, we're averaging five
     measurements together.  So you could have a situation in
     which, in this example, you've got one sample at two point
     four, another sample at three point five.  The average comes
     out to one point nine.  So, we don't issue a citation.
              Under the proposed system, both of these samples
     would be citable.
              MR. SCHELL:  If I can, let me give you some real
     figures.  From May 7th to September 9th, we were using
     single samples, citing at the two point three three.  Okay?
     During that period, we took 3,677 samples.  We cited 292
     citations.
              From September 9th to January of '99, same period,
     we took 2,519 samples.  We cited 55.
              We cited two and a half times as many violations
     using single samples as we did averaging, with the
     correction factor.
              MR. NICHOLS:  Okay, Jim, go ahead.
              MR. LINVILLE:  Mr. Chairman, Members of the Board,
     my name is James Linville, J-A-M-E-S, L-I-N-V-I-L-L-E.  I'm
     a member of the United Mine Workers of America, District 17,
     Local 2286.  I have approximately twenty-three years of
     mining experience.  Most of that has been construction and
     above the ground.  I've been a Safety Committee member for
     about fifteen years.
              This issue doesn't concern us quite as much as it
     does the people that work underground.  But, we know how the
     industry works.  Whatever's implemented on one group of
     people, you have to deal with it sooner or later.  And,
     that's why we're here.
              We feel that the deep miners are getting an unfair
     shake.  So, we want to see what we can do to help them out.
              As we all know, MSHA inspectors can't write
     citations on policies.  If mine operators don't have a
     threat of a citation, they will become too lax.
              The Federal Advisory Committee came to our job to
     see first hand what a large strip mine looked like.  They
     talked to  the miners to see what their concerns were.
              They did a good job of finding out what the
     problems were and made good, sound suggestions on how the
     miners could be better protected.
              Are we going to ignore the advice of those whom we
     hold in such high regards?  The coal miners depend on you to
     look out for our health and safety.  We have had confidence
     in MSHA and always worked closely with them on health and
     safety matters.
              To allow the dust exposure limits to increase, to
     lessen the number of inspections required at our coal mines
     would be a step backwards in time.
              The coal miners have enough problems with more and
     more of our mines shutting down each day.  The threat of
     losing our health care and living, livelihood is enough to
     worry about.  We don't need to worry about losing our health
     and safety, also.
              In the past when MSHA was faced with devastating
     budget cuts, it was the UMWA miners who went to Washington
     to fight a fight that MSHA was told they couldn't be
     involved in.
              We ask MSHA not to turn its back on us, now that
     we need you, your agency the most.
              We are the miners who do the work each day and try
     to live with the rules and regulations that are imposed on
     us by the federal, state and by the coal operators.
              We wear hard toed shoes, safety glasses, gloves,
     back support, airstream helmets, welding hoods, hardhats,
     miner's belt, battery pack, self-rescuer and whatever else
     the coal company wants to hang on us.
              It's easy to sit in an air conditioned office in
     Washington, D.C. or Arlington, Virginia and say, "I think
     the nation's miners should also wear this or that."  It's
     another matter to be a miner that has to wear more of the
     so-called safety equipments because a coal operator doesn't
     want to spend the money to make our work environment a safe
     place to work.
              We need engineering controls to keep the dust
     down, not the so-called safety equipment such as airstream
     helmets.
              The coal miner knows his job better than anyone.
     You can look around the work place and see the coal miner
     implementing measures to make his work environment a safer
     place to work.
              The coal miner needs to have a voice in
     controlling dust in his work environment.  The proposed
     rules are not in the best interest of the nation's miners,
     and is in need of major changes.
              We recommend that MSHA go back to the drawing
     board and publish new proposals that would use the
     recommendations of the Federal Advisory Committee.
              At our mines, we're working hard to improve safety
     and health.  We're working more days and taking less time
     off, to help the company mine more coal with fewer people.
              In March of this year, we produced more coal than
     has ever been produced in the history of Hobeck mining.  And
     they started in the early seventies.  Our company is turning
     a profit because of our efforts.
              We have less incidents of reportable accidents.
     And as a result, our company has received a four million
     dollar check from Workmen's Compensation.
              The Federal Advisory Committee has made good,
     common sense recommendations to fix our dust problems.
              In spite of economic hardships, the coal operators
     are turning a profit.  Let's not let economics stand in the
     way of better working environment for our miners.
              God has blessed us with some of the most
     intelligent people in the world to study and make
     recommendations on how to lessen respirable dust in the work
     place.  Let us use their good judgement in taking their
     ideas and making them work for us.
              There has been very little said about the coal
     companies having a threat now, but if they're not in
     compliance, their operations or their particular section
     will be shut down.
              If that threat is taken away by MSHA allowing them
     to use airstream helmets, for an example, then they really
     don't care if they come in compliance or not because they
     know production's going to go right on.
              We all know that in the mining industry, if
     there's an option put out there, it's going to be utilized.
              And if it's utilized in a small area on a small
     group of people, eventually it'll be utilized throughout the
     industry at other mines and in other work occupations.
     That's our major concern.
              We ask that you consider the health of the miners,
     that you make good, sound judgement whenever you do finalize
     your proposal, and that it is in the best interest of the
     working miners.  Thank you very much.
              MR. NICHOLS:  Thank you.  Jimmy Jarrell?
              MR. JARRELL:  My name is Jimmy Jarrell.  That's J-
     A-M-E-S, J-A-R-R-E-L-L.  I'm with the United Mine Workers.
     I work at Local 9177, District 17, Boone County, West
     Virginia.  I work at Rock Lick Prep Plant.  I've got
     approximately twenty-three years mining experience.  I
     worked underground a little over eleven years.  And, I've
     been at the plant over eleven years.  And, I see a lot of
     dust at our plant.  I saw a lot underground.  But, I see a
     lot at our plant.
              I have some questions about how this is going to
     affect us.  I'm really not for sure about -- we're outside.
     Will we be sampled one time a year?  Is that correct?  Does
     this affect us?
              MR. SCHELL:  Jimmy, there are two rules, as you
     know, the single sample rule that applies to both
     underground and surface mines.  Then we have the plan
     verification rule.  That only applies to underground mines.
              So surface mines would be affected by the single
     sample rule.  But, it would not be affected by plan
     verification.
              In the rule, we did indicate that the Advisory
     Committee asked us to take a look at surface mines.  So, we
     have a separate rule making under way to address surface
     mines.  But, it's not part of this plan verification rule.
              MR. JARRELL:  Okay.  I want to kind of praise you
     some.  I really appreciate when I see an MSHA inspector at
     our place.  I mean, I've always considered them out there
     for our health and safety, to protect us.  And, I still do.
              I think we need -- that we're going to need more
     samples.  If you take the sampling program away from the
     operators, I don't think we will be adequately protected
     with the program that you're proposing.
              There's a lot of things I see.  You allow for
     administrative controls.  I've dealt with a lot of
     administrative controls.
              One of them at our plant, we have different kinds
     of coals that we clean.  One type is very dusty.  The next
     type is not as dusty.  Any time there's sampling going to be
     done, I guarantee we switch coal to the less dusty coal.
     That was an administrative control.  There's nothing wrong
     with that, is there?
              MR. NICHOLS:  That's not exactly what we had in
     mind with administrative controls.
              MR. JARRELL:  But, they do.  I mean, that's their
     option.  That's something that they can do.  But, we have to
     work in the dustier coal, too.  It is not sampled.
              MR. NICHOLS:  But if you know that that's
     happening, you ought to talk to the inspector and sample
     both.
              MR. JARRELL:  Is there something that he can do
     about that?
              MR. NICHOLS:  Yeah, if they're over exposed, if
     you're getting over exposure.
              MR. JARRELL:  I don't think that he can control
     them, the time that they clean which coal that they clean.
     I don't think that's --
              MR. NICHOLS:  Well, he can sample until he's
     satisfied that this situation is what would be normal.
              MR. JARRELL:  Well, I've not seen it.  Really, I
     mean the only time that I've seen -- like I say, we work
     with some very smart operators.  And, we have met with them
     over the years a lot.
              The only way that I have seen that we have beaten
     their system was our place was -- we had some investors that
     came in a couple of years ago and we called an inspector to
     come in on that same day.
              Production levels were up where they normally are.
     They weren't cut the way they are usually when inspectors
     are there.  We were running at a hundred percent production.
              We got a violation.
              That was the only way that we could find that we
     could get a representative sample that was correct.
              A seventy percent sample, if an inspector comes
     and he just needs seventy percent of our normal production
     average, well, we wouldn't be in business very long if we
     just ran at a seventy percent level.  I mean, there would be
     somebody else working there.  The company wouldn't be there
     and we wouldn't be there.
              We also, we have alternative work schedules there.
     I personally work Saturday, Sunday and Monday.  I work
     twelve hours on Saturday, twelve hours on Sunday and ten on
     Monday.  We're not sampled on those weekend and holiday
     schedules.  I don't think you have people who have those
     same schedules.
              MR. NICHOLS:  No, we've told our people that they
     need to do weekend work, night work, whatever is
     representative of what the miners are working.
              MR. JARRELL:  Like I say, I haven't seen it.
              MR. NICHOLS:  What you're raising is more of an
     enforcement issue with the current rules, rather than what's
     in the new rules.  If you've got situations that you want
     looked at -- where are you located?
              MR. JARRELL:  Rock Lick Prep Plant in Boone
     County.  But, it seems to me like we're going to get less
     testing with the new rules than we got with the old ones.
              MR. NICHOLS:  No, not on the surface.  Our policy
     right now is to sample once a year on the surface, unless
     there's a problem and we're called up.  Is that --
              MR. NIEWIADOMSKI:  Actually twice on the surface.
              MR. NICHOLS:  Twice on the surface.
              MR. JARRELL:  Well like I say, I've not -- on my
     weekend schedule, I've not seen that happen.  And, we've had
     this a couple years now, we've had this schedule.
              MR. NICHOLS:  Well, we have three District
     Managers in Kentucky.  Do you know which one has
     responsibility for your operation?
              MR. JARRELL:  I do not.  I'm not here to get any
     of your -- put any of your people on the carpet, because
     like I say, I'm glad to see you come whenever you do come,
     you know.
              But I think now that there are underground miners
     in my local that I represent, and I think that if you'll
     take a lesson from the gentleman that was here from the
     Kentucky Coal Association, that's the kind of administrative
     control that will be -- that the company that I work for
     will do.  The airstream helmets will be their way out on
     this because in my dealings with them, if it's not in black
     and white and specific, we don't have it.  It's not there.
     Might as well -- you know, the ink's wasted on it.
              MR. NICHOLS:  Well if the company wants to use
     administrative controls as a means of compliance, they've
     got to be written up, demonstrated, and posted.  It's not
     just to say, "well, we're going to use administrative
     controls."  They've got to be verifiable, too, that they
     work, and that the company is going to use them day after
     day after day.
              MR. JARRELL:  Obviously the use of the airstream
     helmet, to me is taking the responsibility off of the
     operator and putting the burden on the working man.  It's
     putting it on him.  And, it's a big burden.
              I mean, I've just been a committeeman for about
     two years now.  I'm an infant compared to some of these guys
     here.  I mean, I look back here, I see probably two thousand
     years of mining experience, is about what I've figured up.
     And, I haven't heard one positive thing said about the
     airstream helmets.  And yet, you people want them in your
     rules.
              MR. NICHOLS:  Yeah, but you've got to understand
     where it fits.  It doesn't fit anywhere, except working
     downwind of the shear operator.  It only fits there if MSHA
     determines that the company has exhausted all engineering
     controls.
              MR. JARRELL:  It also doesn't fit the coal miner.
     And, that's who we're here to protect.
              MR. NICHOLS:  Well, I mean that's what we're
     trying to do, too.  What's the option?  Let's say for the
     sake of discussion there is place that the problem can not
     be engineered out.  Is it better to work with no protection?
     Or, is it better to use personal protective equipment?
              MR. JARRELL:  Well, it's been my experience that
     that place doesn't exist.
              MR. NICHOLS:  Okay, then when --
              MR. JARRELL:  I've dealt directly with the company
     that I work for where we had the problem with the dust and
     they could not come up with a solution.  And they asked us
     to meet with them.
              We had a committee that met and we went over the
     problems that we had, and we worked it out.  And, we found
     the problems and we corrected them, just to the point where
     we got under compliance.  And, that's as far as they wanted
     to go.
              MR. NICHOLS:  If that problem doesn't exist, then
     you won't see an airstream helmet in use.  But what we don't
     want to do is fool ourselves.
              It's just what we were showing here about
     sampling, that when you get a couple of people over and
     three under, they're called in compliance.
              We don't want to go through this creative sampling
     to say we've got everybody in compliance downwind, if they
     truly aren't.
              But if engineering controls can handle it, you
     won't see any approval of airstream helmets.
              MR. JARRELL:  Well like I say, I've dealt just in
     my two years, I've had a lot of dealings and if there's any
     way that they can get around a rule, they're around it.
     It's their policy, they'll be around it.
              MR. NICHOLS:  You don't think there's any good
     companies out there?
              MR. JARRELL:  Well you know, the company I work
     for is a good company, I mean, compared to some of the
     others, they are a good company.
              I really don't have many animosities toward them.
     I have a few, you know, because of some of the dealings I've
     had.  I've just been a committeeman now for about two years.
     And one of the reasons I got on this was my Dad was a coal
     miner and he died of black lung, been about two years ago.
              This same company denied that he was ever working
     in any dust.  They fought him every which way they could,
     for him to get his black lung benefits.  They contended that
     he had no black lung.
              But, his autopsy proved different.
              And just from watching him fight for air to
     breathe was very difficult.  I don't want my son to have to
     go through that.
              MR. NICHOLS:  We don't, either.
              MR. JARRELL:  And, you are the people that can
     change that.  You have the control to put rules in here that
     are enforceable that can change that.  And, I challenge you
     to do that.  And, I hope that you will.
              MR. NICHOLS:  Okay.
              MR. JARRELL:  If you have any questions of me -- ?
              MR. NICHOLS:  I think we've covered it, thank you.
              MR. JARRELL:  Thank you for your time.
              MR. NICHOLS:  Joe Urban?
              MR. URBAN:  Is it finally my turn, Marvin?
              MR. NICHOLS:  It's your turn, Joe.  Come on up.
              MR. URBAN:  For the record, my name is Joe Urban,
     J-O-E, U-R-B, as in boy, A-N, the same as Urban Cowboy, but
     don't get it confused, because John Travolta got all the
     fame and glory.  I didn't.
              Marvin, for the record, I have a copy of my
     presentation I'd like to hand in.
              MR. NICHOLS:  Okay.
              MR. URBAN:  In light of the fact, Marvin, that I'm
     sort of bringing up the rear of our list of candidates that
     wanted to speak on the issue, rather than be repetitious, as
     a lot of material has been, I'm not going to go through
     every page of my presentation, but rather pick out some
     aspects I'd like to discuss with you and Ron and with the
     Committee.
              And let me begin by saying that I am currently the
     Deputy Director of Organizing in the midwestern United
     States for the International Union of the United Mine
     Workers of America.
              In addition to that, my duties as a Deputy
     Director of Region Three, also I have the responsibility of
     providing representation for our membership concerning
     safety in the State of Illinois, both surface and
     underground coal mines, as well.
              In addition to that, I also represent non coal
     related facilities, as well.
              I have approximately twenty-eight years of coal
     mining experience, thirteen years of actual underground
     experience, and fifteen years of experience conducting
     inspections at surface and underground coal mines throughout
     the United States for compliance with federal coal
     regulations, in addition to representing our membership in
     safety related matters.
              I appreciate the opportunity to come here today to
     discuss the proposals for the dust rule.  Allow me to start
     by saying that the job that all of you have taken on with
     this assignment is one in which the United Mine Workers of
     America has taken on right after the inception of the Coal
     Mine Health and Safety Act of 1969, later amended in 1977.
              Almost immediately -- and, I believe Joe Main has
     addressed that in his presentation -- almost immediately the
     UMWA began informing MSHA who at that time was called MESA,
     about problems that were being echoed all the way to
     Washington, D.C. from the remotest mining communities
     concerning the self-policing requirement applied to what was
     then the newly respirable dust rule.
              For more than a quarter of a century, the men and
     women who have mined and continue to mine the coal that
     fuels this great nation have cried out for help, only to
     have their pleas fall on deaf ears.
              In the preamble to the Coal Mine Safety and Health
     Act, it states that the miners are the most precious
     resource.  And, don't misunderstand me.  I realize that the
     United States is somewhat of a capitalistic society.  And,
     I'm not saying there's anything wrong with that.
              But with that, it appears that those individuals
     who have been elected by the men and women of this great
     country, to assure the common good of man is protected, are
     in fact at times speaking out of both sides of their mouth.
              The UMWA fully realizes that in a lot of states
     workers, according to the National Labor Relations Act, are
     employees of will, which means the Employer has the legal
     right to hire and fire as they so please.
              But employment at will does not have to mean life
     at will, which is exactly what is occurring with the
     structure of the proposed rules.
              A man or a woman should not have to jeopardize
     their health or their life in order to make a profit for a
     company.
              You don't have to take my word for it.  The latest
     statistics show that in this country, every six hours a
     person dies from black lung, or pneumoconiosis, fifteen
     hundred workers each year.
              We write words to the effect that workers are our
     most precious resource.  And then we turn around whenever we
     promulgate new laws, it appears that we have a deaf ear to
     their cries.
              It still amazes me that this great country of ours
     can demand clean air to breathe on the surface, but forgets
     those individuals who just happen to be working underground
     in the coal mines.
              The coal miners of this nation are tired of being
     classed as second rate citizens.  If we can demand clean air
     for the millions walking on top of the earth, then we sure
     as hell can demand it for those going beneath the earth to
     mine the coal in order to energize this nation, clean air
     for them, also.
              And in case none of you realize it, the United
     Mine Workers of America has always been in favor of clean
     air.  But, we also want it underground and around equipment
     on the surface that generates dust.
              Don't misunderstand me or my presentation.  Some
     of the proposed rule has provided additional improvements.
     And, we thank you for that.
              But, those improvements are minute in our opinion
     when compared with the majority of the proposed rule, which
     we feel is flawed terribly.
              Gentlemen, our government has spent a great deal
     of time, man hours and taxpayer's money in an attempt to
     provide this agency and this committee with detailed
     information on the critical issues surrounding the
     respirable dust problems.
              The purpose was to provide guidance and direction
     to the creation of rules to eliminate the problems of the
     past.
              And I feel that the past two days, Marvin, that we
     have had a lot of testimony that in the eyes of those that
     have testified, that they feel that there are numerous
     flaws.  And not only that, but the rule itself is somewhat
     misguided and very confusing in its structure.
              And in 1992, the Department of Labor, in fact,
     MSHA formulated the task group to look into the problem, and
     I won't go into all that.
              In 1995, the Advisory Committee was formulated,
     again by the Department of Labor.  We truly appreciate the
     hard work and the dedication of those two assignments and
     those two groups of committees that worked.
              In addition to that, NIOSH in 1995 issued a
     criteria document.  We appreciate that.
              And on November 14, 1996, the Advisory Committee
     forwarded its official report to the Secretary.
              It is our belief that for whatever reason, that
     MSHA not only veered off the path, somebody stole their
     compass when it comes to adding the protections miners have
     struggled so long and hard for, and how its rule could be so
     contrary to the findings and the recommendations of the
     Advisory Committee.
              To name a few, of course, the permissible exposure
     limits, the PELs, we feel that MSHA should have developed
     separate PELs for silica and coal mine dust.
              We feel that the standard, the two milligram
     standard should have been lower.
              And Ron, if I may, I want to pose this question to
     you and your mathematician:  With the example that you gave
     with the averaging -- and, I understand where you came from
     with your averaging; I also understand the figures that you
     gave in relation to the citations that was issued as a
     result of the single shift sample -- but those that you had
     up there that was also a two milligram, could you have not
     lowered the standard to one point eight five, and still had
     your confidence, your level of confidence to issue that
     citation, and been upheld in court at a two milligram limit?
              MR. SCHELL:  Joe, you want me to respond?
              MR. URBAN:  Yes, please.
              MR. SCHELL:  Well the answer is yes, we could
     have, Joe.  As Joe mentioned, Joe Main mentioned the other
     day, we did have a separate rule making that addressed
     lowering the standard.
              The scope of this rule making didn't include that.
     So that wasn't included.
              But, that adjustment factor would have been
     applied, no matter what the standard would have been.  So
     the answer to your question is yes.  But in this particular
     rule making, we weren't addressing the standard.  We were
     dealing with the standard as it is.
              MR. URBAN:  But, you answered my question.  I
     appreciate it, Ron.
              We've heard a lot of testimony over the take over
     of the compliance sampling.  In fact, I think the Advisory
     Committee even recommended that the agency do that.  And, I
     think they even went to the extent to provide at least one
     example of in order for you to provide more sampling, they
     gave you an avenue whereby if you needed additional monies,
     that there was a remedy avenue there that you could look at
     to resolve that solution.  But apparently none of that was
     considered in the proposal.
              MR. NICHOLS:  No, MSHA has picked up about ninety
     additional coal mine inspectors in the last three years to
     do the increased sampling, the bimonthly sampling.
              MR. URBAN:  I understand that.  But again what I'm
     referring to, Marvin, is the fact that approximately --
     under the current regulation, we have about thirty plus
     samples from the operators, plus six or seven a year from
     the agency, which makes it somewhere in the ballpark of
     thirty-seven samples.  Minimum under the proposal we're
     looking at six to seven per year.
              And I guess I'd like to address this to Mr.
     Reynolds since he is legal counsel.  I appreciate your
     position as to what judges look at in reference to basing
     their findings for making their decisions.  I don't
     necessarily agree with that total concept, the reason being
     I have just in the last week -- I'm not an attorney, and
     don't let me leave any false impressions that I am.  I'm a
     coal miner.
              But, I also realize the strength and the power in
     statutory regulation.  And the issue of which was awarded in
     the union's favor dealt with a request that had been made on
     a state regulation, whereby we had a mandated statutory
     regulation of which the committee did not pay attention to.
              And the judge clearly ruled that irregardless of
     the intention of the committee, however good they may have
     been, the statutory language is what he had to use in order
     to make his determination.
              Now that doesn't mean that as an attorney you
     can't take the preamble and use it as supportive argument to
     that judge, which I'm sure that would come in as a plus for
     you.  But, I personally feel that -- again, I'm referring to
     the miners' participation, Mr. Reynolds -- I realize the
     committee has said that you all will look at that issue.
     You've stated that it is in the preamble under policy.  Why
     not back that up with statutory requirement by having it in
     the rule?
              MR. REYNOLDS:  Again, let me go back to what it
     says.  When we refer to the term preamble, we mean a
     proposed rule that would include everything in this
     document, the narrative portion in the beginning where it
     explains with the question and answer portion, with actually
     the reg text, and the original thinking behind putting this
     in here, and the reason we have -- this is what it says in
     the preamble.  Maybe I should just go ahead and read it.
              In accordance with Section 103(f) of the Mine Act,
     you, meaning the mine operator, must provide miners and
     their representatives the same walk around rights during
     plan verification sampling as they are provided during any
     other physical inspection made pursuant to the provisions of
     Section 103, and by an authorized representative of MSHA,
     and then we have the further explanation that would be
     looked at by the courts, that MSHA believes that under the
     guidance of the interpretive bulletin which has been around
     since 1978, those regs run where an inspection is met its
     purpose set forth in Section 103, and the inspector is
     physically present at the mine to observe and monitor health
     and safety conditions as part of his safety and health
     enforcement activity.
              Verification sampling is necessary to obtain
     information related to approval of the mine's ventilation
     plan, and whether coal mine dust will be adequately
     controlled to protect miners.
              Consequently, miners and their representatives
     would have the right to accompany the inspector with no loss
     of pay during which the representative exercises this right.
     However, this right is limited by Section 103(f) to only one
     such representative of miners.
              Again the thinking and the reason this was treated
     this way was because MSHA had the resources to go ahead and
     have MSHA do all the verification sampling.
              And because of the fact that we were structuring
     the verification sampling the way that MSHA would be sending
     somebody out to do the verification sampling and they'd be
     physically present, that it's clear that under the statute,
     which of course, just as you've said, is the most important
     thing in any legal proceeding, under the statute it was very
     clear that the 103(f) rights or the walk around rights with
     pay did apply.
              And as we've said, we said yesterday, what Marvin
     said is because of the fact that this has obviously caused
     confusion, this would be something that we would clarify
     either in the preamble of a re-proposal or in the preamble
     of the final rule, whatever the agency decides to do with
     this rule.
              But again I want to say that the statement in here
     is very, very clear that under the rules as currently
     drafted, we have a very clear statement in there to the
     operators that you have to pay, you know, that walk around
     with pay does apply during verification sampling, and any
     other type of sampling where you have MSHA on the premises
     doing that type of inspection.
              MR. URBAN:  And, I appreciate your response.
     Partly, I guess it's a little bit because I'm from the old
     school, I just would rather see that judge having something
     to totally lay his hand on and say, "this is what the
     regulation says and this is what you have to go by."  Okay?
              That reminds me, Marvin, yesterday you had a
     couple of times where you sort of leaned on legal counsel.
              MR. NICHOLS:  Actually, he leaned on me.
              MR. URBAN:  I kind of envision this picture of an
     attorney standing in front of St. Peter and he's got his
     hands up in the air and St. Peter's standing there and he's
     got a long scroll and St. Peter says, "can I help you," and
     he said I'd like to plead my case.  He said, "St. Peter,
     there's got to be a mistake.  I shouldn't be here.  I'm
     forty years old.  I've got my life ahead of me.  I've got
     all this knowledge that I've gained and I ought to be able
     to use it to help people."  St. Peter really wasn't paying a
     whole lot of attention.  Pretty soon he asked St. Peter,
     said, "did you hear what I said to you?"  St. Peter kept
     looking at that long scroll and he said, "yeah, I heard
     you," but he said, "according to the hours that you've
     billed, you ought to be a hundred and five."  That's just a
     little inside joke for attorneys.
              In the proposed rule, subpart (b), dust standard
     70.100(b), it states that each operator shall continuously
     maintain the average concentration of respirable dust within
     two hundred feet inby the working faces of each section and
     the intake airways at or below one milligram of respirable
     dust per cubic meter of air as measured with an approved
     sampling device and in terms of an equivalent concentration
     determined in accordance with 70.2(c).
              Two questions, this has got me confused.  Is there
     a different regulation for the two hundred feet inby until
     you get to the last open cross cut, of which we consider and
     define as the working face?  Or, are there no limits on the
     amount of respirable dust in this area?  Would somebody
     respond to that one?
              MR. SCHELL:  I'm not sure I understand the
     question.
              MR. NIEWIADOMSKI:  There's no change from the
     existing rule.
              MR. SCHELL:  Let George.
              MR. URBAN:  Help me out, George.
              MR. NIEWIADOMSKI:  Joe, there was no change from
     the current regs.  That's two hundred feet inby, the intake
     airway is one milligram.  The outby is going to be two
     milligrams.  But thing I wanted to make sure is Part 70.100,
     100(a) is what is in the existing regulation and has been in
     place since 1980.
              MR. URBAN:  But, that two hundred feet has got me
     throwed, the way that it's worded there.
              MR. NIEWIADOMSKI:  There's no change from the way
     it's been.  I mean, the current regulation, actually we've
     adopted, we've carried the current regulation in Part 70,
     and let me just -- it's identical.  There's no change.
              MR. URBAN:  Okay, I'll come back to that one
     later.  Although MSHA has stated --
              MR. NICHOLS:  Joe, let Ron say something about
     these six samples annually.  We want to clarify that a
     little bit.
              MR. SCHELL:  Yeah, just a clarification, Joe.
     I've heard a reference to a minimum of six samples per year
     proposed, and that's not correct.  So we're going to clarify
     it for the record.
              We're talking about taking five samples six times
     a year, or thirty samples.
              We were never proposing to do just six samples a
     year.  Our proposal was that every time we went out and
     sampled, we would sample at least five samples, plus any
     sectional DAs and DAs near the section.  I just wanted to
     clarify that for the record.
              MR. URBAN:  While you've got the microphone, let
     me ask you another question.  Of the five samples that you
     take, the DO, okay?
              MR. SCHELL:  Well, it'd be the DO and any roof
     bolter DA, plus other occupations on the section.
              MR. URBAN:  I guess my question is if you find one
     or two of those out of compliance, will that be one
     citation?  Or, will there be a citation for each of those
     that's out of compliance?
              MR. SCHELL:  It would depend.  If they both were
     exposed to the same dust source, it would be one citation,
     Joe.  If they were exposed to separate dust sources, for
     example, you were splitting your ventilation, it would be
     two citations.
              We want to look to where the dust source is and
     make certain that the dust source is corrected, so the
     miners would be protected.
              MR. URBAN:  No, you still missed my question, Ron.
     Let's take one MMU.  You have your continuous miner being
     sampled.  You also have roof bolters working inby and they
     are being sampled.  Both those come out of compliance.  Is
     that two citations?  Or, are you just going to use your one
     citation per MMU?
              MR. SCHELL:  That would be one citation, unless
     the roof bolter was a DA.  Then it would be two citations.
              MR. URBAN:  Okay, thank you.  I think we heard
     yesterday from one of our surface members that is a
     construction worker.  And again, I'm not casting any stones,
     Ron.  I've seen through the years that I've been involved,
     we've had a lot of proposed changes made to certain
     regulations, or at least attempts made.  And for whatever
     reasons, some of those never did become final.
              The plea that the construction worker had
     yesterday is a serious one and a true one.  They do need
     severe help.  I know that in the preamble that, Marvin,
     you've stated that you're going to work on the surface
     application for the respirable dust rule.  I truly hope that
     does happen.
              But I also am under somewhat of an emotional
     feeling that that's sort of like, "the check's in the mail."
              And, I support that with the fact that we're still
     waiting for 48(c) that we never have gotten since the
     inception of the Coal Mine Health and Safety Act, which as
     you know, is the construction, slope and shaft, and that's
     been thirty plus years.  So again, I hope that you truly do
     come out with the surface application for the respirable
     dust rule.
              There was a lot of talk in the preamble
     referencing studies that had been done, not only in this
     country, but in other countries as far as those individuals
     with CWP or silicosis.  And, the Advisory Committee clearly
     indicated that they felt that there was a dire necessity to
     have medical testing and medical surveillance for the
     miners.
              But for some reason, I don't see any of that in
     the proposed rule.  Could someone explain to me why there's
     not any in there?
              And Marvin, let me say that the reason I ask that
     is because of the problems of the past that we're trying to
     get rid of.  How do we build up the confidence in the
     miners, if we don't have the data to be able to show that
     the situation is what it is, if we're not going to do any
     medical testing or any medical surveillance?
              MR. SCHELL:  Joe, after the Advisory Committee
     finished its work, the first regulation we started working
     on was to expand the x-ray surveillance program to the
     surface and to contractors, to address just exactly the
     issue that you've raised.
              When we got into that rule making, we came to the
     conclusion that what we were doing was taking a broken
     underground program and extending that to the surface.
              So, we met with quite frankly a lot of mine
     workers at the academy and we asked them, "why aren't people
     participating in the x-ray surveillance program."
              As you know, we're at about a twenty-five percent
     participation rate in the NIOSH program.  And, the feedback
     that we got from the miners was that quite frankly with the
     operator involvement in the program, miners were afraid to
     participate because they felt that if they had evidence of
     the disease, it would be used against them in future
     employment, or the operator would discourage them from
     participating, because they had to pay for the x-rays.
              So that's when we initiated this national miner's
     choice x-ray program.  And, we're starting into our -- going
     into our second quarter on that now.
              As you know, that expands the right for surface
     miners, for contractors, slope and shaft, truck drivers,
     underground miners to go to any facility that they want and
     have an x-ray taken.
              That's of no charge to them.  MSHA picks up that
     cost.  That goes to NIOSH and they read it, and will collect
     data.
              So what we're doing is we're trying to develop a
     better program for medical surveillance that addresses the
     objective of the Advisory Committee and we've asked for
     funding from the Congress to continue that program.
              And I would hope that within five years, every
     miner would have been offered that x-ray under an improved
     program.
              Now we're looking at participation rates around
     fifty to sixty percent nationwide, which is significantly
     better than we ever got under that NIOSH program.
              MR. URBAN:  And, I appreciate that.  And, I do
     know that under the chest x-ray program that Marvin had
     touched on yesterday, that that was a priority of Davitt's.
              MR. NICHOLS:  You've got to give Davitt a lot of
     credit for that.  We had no money budgeted for that.  That
     program, if you get maximum participation, could cost two
     million dollars a year.
              It was not a line in the budget.  There were some
     questions about it.  He stayed the course.  We found the
     money in other programs.  And, it's a good program.  He
     deserves a lot of credit for that.
              MR. URBAN:  I want to share some information with
     you, Marvin, that you may not be aware of.  And, I
     appreciate the fact that Joe Main had talked with you and
     the fact that in the midwest and Illinois, we had several
     mines that were slated to shut down under this program, we
     wanted to try to get as much maximum participation as we
     could for those miners because once they leave the coal
     fields, it's hard to even track them down.
              But the problems that we ran into -- and Marvin, I
     have participated adamantly in the chest x-ray program that
     Davitt had come out with -- the problem we run into was it
     appeared to me we were running into problems because of the
     scheduling, part of that being the fact that MSHA had
     contracted out the actual service of doing the chest x-ray.
              To give you an example, at the Peabody Coal
     Company at Marissa Mine in Illinois, we had somewhere in the
     avenue of a hundred and eighty to two hundred miners that
     took the x-ray, participated.  Ninety of those were bad x-
     rays because of one of two errors, either faulty equipment
     or people that were doing things that they weren't quite
     trained good enough to do.
              And it just appeared to me -- and, I spoke with
     Mr. Oaks, spoke with Mr. Wickman -- it just appeared to me
     that it was sort of sidestepped in the fact that, "well,
     we've contracted this out to a contractor, we have to go by
     their schedules, there's not a whole lot we can do about
     that."  And we got the problem corrected, Marvin.  Okay?  We
     got the machine back in there and we got the people another
     x-ray.
              But again, talking about the confidence in this
     program, I mean, that put a severe blow to it.
              MR. NICHOLS:  Well yeah, I mean, but this was a
     big undertaking that we had started, and we had contracted
     out with a clinic.
              But as we've seen some of these problems come up
     and the participation rate not being what we wanted, we
     started using mobile vans.  So we adjusted, especially in
     the east, by using the mobile vans.  And, the participation
     rate went on up.
              MR. URBAN:  I share that information with you,
     Marvin, because I think our traction starts slipping in the
     mud in the midwest, when it comes to the quality of the
     service that was being conducted.  And, don't get me wrong.
     We done the chest x-ray program at Consol Mines and in fact,
     I think we had something in the neighborhood of eighty-three
     percent that participated.  And, I do realize that that was
     no easy chore, trying to get a facility, area where we could
     set the machine up.
              And, the program is a good program.
              But, I just think that NIOSH and MSHA both should
     try to work a little more closer with the representatives of
     the miners to try and help get this scheduling done.
              In fact, we had one session that came up in
     Illinois, and none of our people that are representatives
     was going to be in the area, and yet, it had already been
     scheduled and we had no way to get the word out to the
     miners.  That's not going to do the program any good,
     Marvin.  Okay?
              So again, I would ask that on the chest x-ray
     program that we try to have a little more better
     communication, especially in the scheduling aspect of it.
              I am happy to say that of numerous recommendations
     from the Advisory Committee -- and, there were several on
     education and training -- the Department at least, MSHA has
     filled the position of Director of Education and Training.
     And, we appreciate that.  And, we also appreciate the fact
     that it's Jeff Duncan, one of our people that used to work
     with us.  He has extensive knowledge, a very capable
     individual.
              You had talked, Marvin -- and, I'm going to get
     off this thing here -- you had talked yesterday about the
     fact that you had hoped, or it was your intention that once
     you have a verification plan in place, then you would hope
     that the operator and the Safety Committee would then try to
     make sure that that was complied with on all the shifts
     continuously.
              MR. NICHOLS:  The operator, the miner, the Safety
     Committee and the inspector.
              MR. URBAN:  But, through the verification plan in
     and of itself, what assurance is there in that plan that
     that will be done as you've stated?  It's not there.
              I mean, the Safety Committees do not have the
     power, nor the authority to dictate to management.  They
     can't tell management, "you're not doing what the plan calls
     for, so therefore, you can not operate until you do so."
              And by the time, Marvin, that they use their Coal
     Act rights under 103(g) and notify the agency -- and, I
     heard what you said as far as your inspection force at Shoal
     Creek.  In the midwest, we have inspectors, they're not at
     the union operations every day.  I hope they're not, with
     all the non union operations that's out there.
              MR. NICHOLS:  They're there pretty often, though.
     Right?
              MR. URBAN:  But, the thing of it is when a
     situation comes up, Marvin, nine out of ten times, if this
     happened on a particular section, the section committeeman
     is not going to know it until the end of the shift.  The
     inspector's already gone.  So, that one's going to have to
     wait until tomorrow, if an inspector shows up.
              Now he goes and he issues a 103(g) to that
     inspector the next day.  What do you think the company's
     going to do as far as going by the plan?  They're going to
     make sure they do it that day on that shift while the
     inspector's there.
              And Marvin, there's no difference there than in
     the rock dust issue and the atmosphere that we've been
     fighting for years.
              Now the mine workers don't oppose rock dusting.
     We want rock dusting.  We know we need it.
              But you know there has been umpteen calls that's
     come to you saying hey, we're being dusted out, we can't
     see, we're having to breathe this all the time.  But by the
     time you get the inspector there, it's all cleared up.
     Can't do nothing.
              MR. NICHOLS:  My point yesterday was that we've
     got a plan that's been verified at a high production level
     that calls for certain controls, that everybody understands.
     And if you've got less water sprayers than the plan calls
     for, or less air, then the miners, the Safety Committee, the
     inspector can look at the plan, look at the conditions and
     see that that's not what was called for in the plan.
              It seems like you think the option of bimonthly
     sampling by the operator will do more than our bimonthly
     sampling and a good plan that's demonstrated to work.
              MR. URBAN:  No, our point is by having more
     additional sampling, we're going to have a higher confidence
     level on management people that hey, if it comes down to it,
     every other day, I might have an inspector in here checking
     my parameters and checking to see that my plan that's
     verified, if I'm wrong on it.  That's what we're talking
     about.
              And granted, I realize the fact that you can't be
     there twenty-four hours a day, seven days a week, Marvin.
     But, I think you're relying too much on a piece of paper to
     assure what's going to happen on shifts when an inspector is
     not there.  It won't work.
              MR. NICHOLS:  Plans, enforcement, sampling, I mean
     that's what we've got to work with.  And you're right, we
     can't have an inspector there every day.  We've got then
     there quite often.
              MR. URBAN:  One of the things, Marvin, that I
     think really hits the key here -- and Ron, on your overhead
     that you had up there, the plan itself, how many times have
     we come to you and have told you the same as miners time and
     time again, miners have absolutely no control over
     administrative controls?
              When you come to sample, the operator is going to
     make damn sure that administrative controls is top priority
     over production for that day while you're there.
              They're going to do that for your plan
     verification.
              But, you know what's going to happen as soon as
     you leave?  They're going to re-prioritize administrative
     controls and it's going to go right back to the bottom of
     the list.  And the operator's going to say, "all right,
     boys, get in there, we've got a record to break, let's mine
     that coal."  That's the reality of the coal mines.
              MR. SCHELL:  Joe, I guess our concern is this:
     Today doing a bimonthly cycle, an operator will sample one
     person five consecutive shifts or five consecutive days.
     Okay?
              MR. URBAN:  Under company controlled
     administrative controls.
              MR. SCHELL:  I agree, that's right.  We go in and
     we sample five people one shift.  Okay?  So if you take four
     hundred shifts on average, across the year and operators
     sample thirty shifts, that's four hundred and seventy shifts
     that they don't sample.
              We sample them six times, that's three hundred and
     ninety-four shifts we don't sample.
              We've got to find a way to get compliance on those
     shifts where we're not sampling.  And, that's what we were
     trying to do with this rule.
              There is a requirement today, a legal requirement
     that an operator can be cited if they don't check their dust
     parameters before every production shift.  Okay?
              Our concern was if you don't have a good plan,
     checking a bad plan doesn't help miners.
              So we wanted to start out with a plan that we knew
     would work with just what they wrote in the plan.
              You and I have had discussions in the past where
     we go in and sample and the parameters are so high above
     what's in the dust plan, you can't evaluate the plan.
     You've complained to me about that, and then we've had a
     problem with it.  We wanted to address that.
              We're going to tell that operator, "when you
     submit a plan, we're going to verify it with only those
     controls in place that you say are going to be in that plan.
              And then, we're going to verify it near the peak
     of production, not some percentage of the average.
              So we at least ought to start out with a comfort
     level, that if the operator does what they say, does what
     they're supposed to do and by law, what they're required to
     do, is to comply with that plan, the miners ought to be
     protected.
              Now if they don't check it every shift, they're
     going to be cited.
              If an inspector goes in there and they're down on
     their air, we don't have to sample.  We cite.
              They don't maintain their water, we don't have to
     sample.  We cite.
              You guys can look and see if they're not
     maintaining their air and their water.  They can call.
     Granted we've got to come up and get them.
              But, my point is what do we do during those shifts
     that we're not sampling to protect the miners, Joe?
              MR. URBAN:  Let me interrupt you just a minute.
     You made a statement that if they're not doing their
     perimeter checks, that they're going to be cited.  How are
     they going to be cited when number one, is there a record
     requirement for them to do that regular check?
              MR. SCHELL:  They have to date and initial.  And a
     lot of times, the miner operator is doing the checks and has
     to tell the management official that they've done it.
              MR. URBAN:  But what I'm getting at, if you don't
     have an inspector there that observes it at the time, are
     you going to issue a citation?
              MR. URBAN:  Probably not.  But, we'd have to go
     back and do spots on it.  But if we hear from you guys that
     they're not doing it, we're going to check.  And Joe, if we
     get a call and come in and we find out that they're supposed
     to have "x" amount of air and they don't, they're going to
     be cited for a violation of that plan.
              And again, I'm not trying to be argumentative.  I
     understand your concern about sampling, and that they comply
     when we sample and they comply when they sample.
              Our question and what we were trying to address in
     this proposal is what about the days that no sampling is
     occurring?  What's the best system that we could come up
     with to protect miners and make certain that that plan is in
     place and operating?
              And, that's why we came to this conclusion:  Let's
     get a good plan that we know works.  Operators today are
     required to have that plan in place, and operating on every
     shift.  And people can go in and they can eyeball that and
     they can tell you for the most part whether or not that plan
     is being complied with.  I don't know any other --
              MR. URBAN:  But, you know as well as I do if we
     report to you ten times in two weeks that they are not going
     by the verified plan, then you're going to come out there
     and you're going to observe.  You may come out on second
     shift, may come out on owl shift.  But when you're out
     there, they're going to do it.
              That's what I'm trying to -- what I want to do,
     Ron, and I hope that you and Marvin want to do, I want to
     change Jekyll and Hyde to Jack and Jill.  And, a
     verification plan is not going to do that.
              MR. SCHELL:  Sampling thirty-six out of four
     hundred shifts isn't going to do it either, Joe.
              MR. URBAN:  We didn't say minimize it to thirty-
     six.  We keep saying more, more samples.
              MR. NICHOLS:  What we're trying to do is keep the
     out of compliance situation from occurring.  More sampling
     will show you you're out of compliance.  I mean, that's an
     after the fact thing.
              What we want to do, and the only possibility, I
     think, of getting compliance is getting compliance or plans
     on a daily basis.
              You can go sample and find over exposure, but
     that's not getting ahead of the problem.
              Plans will get ahead of the problem.
              MR. URBAN:  And I guess, Marvin, the reason why
     I'm hammering the verification plans so much, okay, and you
     know, we have participation rights in a plan, ventilation
     plan development.  That was under the ventilation rule that
     was changed.  Okay?
              But you know what has happened since that has
     occurred?  Guess what?  The operators have found a way to
     manipulate that.  Now you know how they do it?
     75370(a)(3)(i), which gives us a right to have a copy within
     five days, now you would think that prudent, professional
     businessmen that are supposed to be up front and forthright
     would try to work with labor, because labor has just as
     much, if not more, invested in that particular operation as
     the company does, the last part of that regulation which
     states -- and, don't get me wrong; we know that mining
     conditions change constantly.  We're also reasonable.
              And, we know that from time to time, there's going
     to be emergency situations crop up, whereby an operator is
     going to need a revision or is going to have to make a
     submittal and is going to have to do it quickly.  We
     understand that.
              But, the operators right now are taking a
     position.  They are waiting to do any type of submittal for
     a revision or whatever until they can artificially make an
     emergency, and then prevent the miner's rep from having
     involvement because of fax machines and today's technology,
     because the company will take and submit a submittal to the
     MSHA District Manager.  He'll approve it and fax it back the
     same day before a miner rep will even know what's going on.
              Now if you don't think that the operators are not
     smart enough to figure out a way to get around this, they're
     going to do it.  They're going to do it.
              And, don't misunderstand me.  I know you have all
     put a lot of hard work into this.  And again as I said from
     the start, I sure as hell didn't envy your job because we've
     seen that there have been problems for a quarter of a
     century.
              There was one other part that I wanted to ask you,
     Ron, on.  The verification sampling, production, it calls
     for the tenth highest for the most recent thirty days of
     production.
              And on your chart, you stipulate that the agency
     is going to, I'm assuming, going to require the minimum of a
     six month record for their production.
              Define to me then, what is the most recent thirty
     days of production?  Is that from the time that they start
     extracting coal from the MMU unit thirty days?
              Or, is it once they have quantified to themselves
     what their productivity is, and they notify you and you get
     out there to do the verification?  The most recent is
     throwing me off.
              MR. SCHELL:  Yeah, that's a fair question, Joe.
     The rule when it goes into effect would require operators to
     maintain records on the amount of material produced on each
     production shift.  They would have to maintain those records
     for six months.
              As you know, as we phase into this, we will be
     bringing -- verifying mines on some kind of a schedule.  We
     would expect the most recent thirty production shifts would
     be their last thirty production shifts that they should have
     been keeping records on.  I'm just turning to George to make
     sure I stated that correctly.
              MR. NIEWIADOMSKI:  That's correct.
              MR. SCHELL:  So it's an on going requirement from
     the date the rule becomes effective.  What I'm getting at,
     Joe is that when we go out to do our inspections, we'll be
     able to look back at production over a six month time period
     to just see what they're actually producing every shift and
     make certain that they're not producing -- to make sure it's
     representative, and they're not producing more than their
     plan was verified for, because if they have, they need to go
     back into plan verification again.
              The problem we have is production is on a mine by
     mine basis.  And, we don't know if it's clean coal or
     running mine coal, so it's hard for us to get a handle on
     this doggone production issue.
              Now we want by MMU, and we want amount of material
     produced.  We're not looking for clean coal.  We want amount
     of material produced.
              And then that record will be available to us to
     make judgements on plan verification, and then to make
     judgements when we sample as to we're seeing representative
     production.
              MR. URBAN:  One other question on that issue:
     During this phase in period -- and, that's what I'm defining
     it as -- for the verification of production, are we still
     going to be under the two milligram standard?
              MR. SCHELL:  Well if we have single sample, we
     would be enforcing single samples the way we did in that
     period, August to September.  So we would be under the two
     milligram standard, but we would be using the two site
     value, Joe.
              What I'm saying is that if this rule that we have
     today went into effect, we would begin citing on single
     samples.  The standard would be two milligrams.
              The two site values, the two milligram standard
     would be two point three three.  We would no longer be
     averaging them.
              MR. URBAN:  Okay.  Marvin, I guess I've got a
     question for you.  And correct me, if I'm wrong.  It was my
     understanding that as far as MSHA being an agency, in your
     promulgation of rules, you do not promulgate rules or
     criteria that apply to the agency, do you?
              MR. NICHOLS:  I think we've got some stuff in Part
     100.  Isn't that right?  Yeah, I think the answer is yes.
              MR. URBAN:  The reason why I ask that is because
     70 -- I believe it's 70.206 and 207 of the proposed rule,
     where you talk about who you're going to sample, is that in
     and of itself, is that not promulgating criteria for the
     agency itself?
              MR. NICHOLS:  Yeah, it could be.  Yeah.  What's
     your point, Joe?
              MR. URBAN:  I just -- it was always my impression
     that you didn't do that, that the agency didn't promulgate
     criteria against itself.
              MR. NICHOLS:  No, we can.
              MR. URBAN:  Okay.  There's been a lot of
     discussion in the past two days about the sampling criteria,
     how, when, where it'll be done, what's to be done if it's
     out.  And, there is a lot of discussion in the preamble, but
     not in the proposed rule.
              MR. NICHOLS:  And, we've had that comment early
     and often.
              MR. URBAN:  So would it be safe to say then, that
     that's what you've done with it?
              MR. NICHOLS:  I don't think so.  I think we've got
     a difference of opinion on whether -- it is your opinion
     that it has to be in the rule to be enforceable.  I don't
     think we totally agree with that.  But, we've indicated that
     that comment has been made many times, and it will be one
     for consideration.
              MR. URBAN:  Just a couple more quick ones and I'll
     be done.  And Ron, I'm going to pick on you again this time.
     We had a lot of discussion yesterday.  And to be quite
     honest with you, I'm still not sure I understand it today.
              What I would like for you to do is to consider
     those that are here as a training class, okay, and walk us
     through the complete system as to how you would determine
     your verification production, okay, and, how you come to
     that final determination.
              MR. SCHELL:  I'm going to try, Joe, but if
     history's any -- what we have to do is start by talking
     about what average production is.  I'm not going to talk as
     a statistician.  Jon will cringe in back of me.
              But to determine an average, you take all of the
     productions along a spectrum, add them together and divide
     them by the number.  Right?
              If you take two plus two plus ten, that's
     fourteen, divided by two is seven.
              As a layman, if you have a normal distribution,
     you'd have about fifty percent on the low side, fifty
     percent on the high side, so average would be about fifty
     percent.  If you took a hundred numbers, evenly distributed,
     fifty would be about the average.  Okay?
              The Advisory Committee's recommendation was that
     we sample at ninety percent of the average.  So what's
     ninety percent of fifty?  It's about forty-five.  And, Jon's
     going to put an average together.  So ninety percent of the
     average would be forty-five.
              We're saying we want to sample above the average.
     And, Jon's going to put together a little thing to show you.
     We want to sample at the seventieth percentile for plan
     verification.  That's above fifty percent of the average.
              And if we take a thirty day distribution, okay, if
     we take production over a thirty day time period and count
     down to the tenth highest production, that equates to about
     the seventieth percentile.
              So we're not sampling, we're not verifying at some
     percentage of the average.  We are verifying above the
     average.  And, Jon?
              MR. KOGUT:  I'm just going to try to give you a
     concrete example of what we might be talking about.  Suppose
     you had ninety or a hundred -- say you had a section that
     works three shifts a day, so you have -- well, we've got
     thirty shifts here.  So, why don't we just use thirty?
              So you've got productions.  Some of them are going
     to be like eight hundred, nine hundred, eleven hundred.
     Some of them will be like seventy-two hundred, seventy-five
     hundred.  Okay?
              Over those thirty shifts -- and, Rebecca here just
     generated an example, distribution of thirty shifts, an
     example of thirty actual productions in that range -- the
     average production in her example was 4,467 tons per shift.
              Ninety percent of that average production then,
     would be 4,020 tons.  In other words, it's less than the
     average.
              The highest individual production in that example
     was 7,600 tons.  The average is 4,467.  Ninety percent of
     that average is 4,020.  Okay.
              Fifty percent of the average, which is what the
     operators under the current program when they do their
     operator compliance samples, they're required to do fifty
     percent of what they did on their last sampling cycle.
              So say that on their last sampling cycle they were
     right at the average production of 4,467.  So, then if
     that's the case, on a new sampling cycle, they would only be
     required to have 2,234 tons.
              Now that sets up an interesting thing because the
     way the current regulation is written, the next time they do
     sampling on their next bimonthly cycle, all they're required
     to do is fifty percent of what they had on this current
     sampling cycle.  So it would really only have to be half of
     that 2,234.  So, they could get away on the next sampling
     cycle with 1,117.
              The next time, it could be even more, only be
     half, be fifty percent of that.  So it really could go lower
     and lower under the current system for operator sampling.
              But to get back to these different percentages,
     ninety percent of the average is 4,020.  And sixty percent
     of the average, which is what the inspector sampling uses,
     is 2,680.  Okay?
              Now the tenth highest of those productions is
     5,700.  5,700, okay?  That's higher than the 4,467 that was
     the average.  That 5,700, it's going to be somewhere about
     halfway between the average and the maximum value.
              Now the other number that's been thrown around
     here is that sixty-seven percent, or Ron was rounding off to
     about seventy percent we were talking about.
              That seventy percent, that sixty-seven percent,
     that's a percentile, not a percent of average.  What that's
     referring to is not a percentage of the average.  It's not
     like sixty-seven percent of the average.
              We're talking about the sixty-seventh percentile
     which means that sixty-seven percent of all the individual
     productions at that level or lower.
              So in other words, it means that sixty-seven
     percent of all the production shifts are less than or equal
     to that sixty-seven percentile.  And, that corresponds
     roughly to that tenth highest production level.  So that's
     higher than the average value.
              So it's important to keep track of whether we're
     talking about a percentage of the average, or a percentile,
     which means two different things.  Does that help at all?
              MR. URBAN:  Clear as mud -- no, it did help, and I
     appreciate it, although I do think we probably could have
     used three or four pages of the preamble just in that
     explanation to the common miner.
              Marvin, in closing -- and again, you and I and Ron
     have had several meetings and sat down and talked about
     several different issues -- the miners really appreciate
     what has been done.
              We truly feel that you have made an honest effort
     to correct the problems.  But, we definitely feel that
     there's still more work to be done.
              We truly feel there are a lot of good
     recommendations in the Dust Advisory Committee's report.  We
     would encourage you to go back to the drafting board and
     redraft this proposal.
              And, I'm a little skeptical because Mr. Reynolds
     made the comment a couple of times yesterday, "well, we'll
     think these over and we'll give it consideration."
              And, I'm not citing politics in here in this
     meeting.  But, I'm a registered democrat.  And, I've had
     numerous republican candidates that's come up and asked me
     for support.  And I've said, "I'll give you consideration."
              I truly hope, Marvin, that you do give serious
     consideration to what these people have said, not only in
     Morgantown, not only here, but what they'll say in Las
     Vegas.
              MR. NICHOLS:  Well, that's the way the rule making
     works, Joe.  You put out a proposal and get the comments.
     You have these hearings and get the comments.  And then at
     some point, you sit down and look at the whole record.  And
     then, the agency will make a decision.  That's the way it
     works.
              MR. URBAN:  Thank you.  I've concluded.  If any of
     the committee has any questions, I'll be glad to try to
     answer them.
              MR. NICHOLS:  I think we've captured all the
     issues.  So --
              MR. URBAN:  Thank you.
              MR. NICHOLS:  Thank you.  Our next presenter will
     be David Gooch of the Coal Operators and Associates.
              MR. GOOCH:  Thank you, Marvin and Members of the
     Panel.  My name is David Gooch.  Spelling of the last name:
     G-O-O-C-H.  I'm presenting the following comments in my
     capacity as President of Coal Operators and Associates.
     These comments are being presented not only on behalf of
     COA, but the Kentucky Coal Association and the Western
     Kentucky Coal Association.  Collectively, these three
     associations represent over ninety percent of the coal
     produced in Kentucky.
              My colleague yesterday, Mr. Caylor, addressed some
     specific objections to various facets of the rule making
     proposal.  I'm going to address my comments to a broader
     area, that being the timing, the motivation and the
     inadequacy of the proposals.
              We will in concert with the National Mining
     Association, as well as other state mining associations,
     provide exhaustive written comments on each specific section
     of this proposal within the allotted time period.
              As evidenced by the testimony by more than twenty
     commenters from the United Mine Workers at the hearing in
     Morgantown, West Virginia this past Monday, it's very clear
     that they are less than enamored with what is before us
     today.  And the numerous, forceful, articulate arguments
     that have been presented by the Mine Workers yesterday and
     today bear out the fact that labor doesn't like this
     proposal.
              Well we don't, either.
              We have some serious problems with it, and we will
     address those.  The Mine Safety and Health Administration
     has two groups of stake holders, the regulated community
     which is the mine operators, and the working miner, whether
     he's affiliated with the Mine Workers or not.
              According to testimony presented by the Mine
     Workers, this proposal was not written with the health of
     the individual miner in mind.
              And, I can assure you it definitely wasn't written
     with any concern for helping the mine operator comply with
     the Mine Act.
              If the proposed regulation doesn't satisfy the
     needs of the stakeholders, then who does it benefit?  Well,
     there's only one logical answer.  Joe Main said it
     yesterday.  I'll say it today:  It was written to benefit
     the agency.
              This is perhaps one of the most self-serving and
     convoluted pieces of bureaucratic mumbo jumbo I've ever
     attempted to read, as evidenced by some of the discussions
     that we've had here this morning.
              This regulatory proposal does nothing but swell
     the already over sized bureaucracy at MSHA in an attempt to
     justify ever increasing appropriation from Congress,
     regardless of the fact that MSHA' work load continually
     decreases due to fewer mines and fewer miners.
              Pointing to the self-serving nature of this
     proposal is the timing of its offering, and the subsequent
     time allotted for the filing of public comments.
              If history serves as any teacher, there will be a
     change in leadership at the Department of Labor and at MSHA
     after this upcoming presidential election, regardless of
     who's elected.
              So we're faced with a voluminous regulatory
     proposal which changes the scope of ventilation plan
     verification and dust sampling in the eleventh hour of a
     lame duck administration.
              And trying to shove this proposal through and
     limiting the time for comments in order to finalize the rule
     before January, 2001 is a disservice to both mine operators
     and to coal miners, themselves.
              This proposal was noticed in the Federal Register
     July 7th, 2000 with a thirty day comment period that was
     amended to forty-five days.
              A request filed by the National Mining Association
     for a one hundred twenty day extension was basically denied
     with only a two week extension to September 8th.
              I want you to think of it, sixty days, much of it
     during peak holiday time, to respond to hundreds of pages of
     proposal and literally thousands of pages of cited
     references.
              I will agree some of this isn't new territory.  We
     saw it in 1998 in a proposal which was struck down by the
     U.S. 11th Circuit.
              However, there are new proposals.  There are new
     reference materials that are cited in this notice that must
     be researched in order for either side to intelligently
     comment on how it will affect both the mine operator and the
     miner.
              The National Mine Association issued a July 25th
     request of the agency for the production of various
     documents cited in the Federal Register Notice.
              It took MSHA nearly two weeks to respond.  Well,
     that took care of the two week extension we got.  It
     nullified it.
              The lack of time to prepare comments, the timing
     of the proposal and an attempt to push it through all tend
     to point to denial of due process not only for the mine
     operator, but for the miner, as well.
              And, for what?  To justify more money for public
     coffers?  To justify the hiring of more people?  To create a
     monument to the legacy of the Assistant Secretary?
              If the agency was interested in protecting coal
     miners from a dusty mine atmosphere, and if the agency was
     interested in helping operators comply with dust and
     ventilation standards, in other words, if the agency's
     motives were pure, this proposal wouldn't be before us.
              There are too many issues that mine management and
     those who represent labor do not agree on.
              However, we do seemingly agree that a necessary
     ingredient for any successful dust control and monitoring
     program is the development and implementation of reliable
     dust monitoring and dust control technology.
              As an industry, we have repeatedly, verbally and
     in writing told MSHA that we will work with them to solve
     the problems inherent to the current regulatory environment
     as it affects dust monitoring.
              Though we must predicate much of that solution on
     new technology, this proposal apparently is MSHA's answer to
     our promise of cooperation.
              The agency would rather continue to play games
     with smoke and mirrors, instead of finding a lasting
     solution.
              I could go on with a list of grievances such as
     the proposal's lack of safeguards to protect both miners and
     operators from the inappropriate, inexperienced or illegal
     actions of MSHA's enforcement personnel in the collection of
     dust samples and their subsequent laboratory analysis, the
     lack of comment in the economic analysis regarding the fact
     that many small contractors who perform dust sampling will
     be permanently put out of business, a possible violation of
     subriefin, the lack of outreach to the small business
     community who will be impacted by this proposal, as required
     by subriefin, the possible anti-trust violations regarding
     the agency's plan to offer the protection of airstream
     helmets or other appropriate respiratory protection to only
     one segment of the coal mining industry, to the exclusion of
     the rest, and the list goes on.
              In summary, this industry will submit our combined
     written comments and specific objections prior to the end of
     the comment period.
              We are of the strong opinion, though, that if the
     agency wishes to act in a responsible manner and carry out
     its legislative mandate, they will withdraw their proposal,
     sit down at the bargaining table with the affected
     stakeholders, and work out a plan that will assure both the
     health and safety of the miners in the mines, and the
     continued operation of legitimate mining operations.  Any
     action short of that will no doubt lead to protracted
     litigation, as it has in the past.
              And while the attorneys cash the checks, the
     problem that MSHA said they were solving with this ill
     conceived regulatory proposal will remain, and all because
     of the self-serving rush to judgement in the eleventh hour
     of a lame duck administration.
              In closing, there is an old saying, "if it looks
     like a duck, if it quacks like a duck, if it walks like a
     duck, it's bound to be a duck."  In our opinion, this ain't
     no duck.  This is a turkey.  We
              would like for you to withdraw this proposal.
     Thank you.
              MR. NICHOLS:  Thank you.  Wait a minute, we may
     have some questions.  I'm glad you didn't sugar coat it
     there, David.
              MR. GOOCH:  I was half asleep when I wrote that.
              MR. NICHOLS:  Do you think it's right to average
     those samples, if you have two people out of compliance and
     three in?  What do you think about that?
              MR. GOOCH:  We will address that in our written
     comments.  However, there is adequate language that has been
     around for years and years saying that that is the way to do
     it.
              MR. NICHOLS:  So you agree with that?
              MR. GOOCH:  We have some serious reservations
     about the validity of the single shift sample.  As you know
     from our little foray in 1998 and subsequent to that, we do
     have questions about its validity.
              MR. NICHOLS:  And what about the good, verifiable
     plans that work?
              MR. GOOCH:  We think there needs to be good,
     verifiable plans that work.
              MR. NICHOLS:  Anybody else got anything?
              MR. HEWETT:  Marvin?
              MR. NICHOLS:  Yeah?  The question is how do you
     think this proposal will put small contractors out of
     business.  I'm assuming you're talking about the people that
     do contract sampling?
              MR. GOOCH:  Yes, sir.
              MR. NICHOLS:  Yeah, that's what he meant.
              MR. GOOCH:  Those that do contract sampling.
              MR. NICHOLS:  Yeah.
              MR. GOOCH:  Not that I'm any great fan of some of
     those folks, but they are a part of the community.
              MR. NICHOLS:  Right.  Well, say what you will
     about the intent of the agency putting this out, but this
     dust issue has been worked on for many years.  For a good
     part of nineties that I've been in coal, we've worked on
     pieces of what you see today.
              MR. GOOCH:  I know what you're saying, Marvin, and
     I guess what our point is -- and I think these fellows have
     expressed it, too -- there have been several comments made
     on behalf of the mine workers that they're afraid that this
     is the last time this gets visited.
              Well, I don't know whether this is the last time
     this topic gets visited or not, knowing the slow and often
     laborious convolutions the government goes through in its
     processes.
              But, I think both the mine workers and the mine
     operators would like to get to a final resolution of this
     issue, because we're tired of wrestling with it.  These guys
     are tired of wrestling with it.
              We would like to get a regulation where we know
     what's going on, and where they know what's going on, one
     that is understandable and identifiable.
              And so much of this regulation -- and Marvin, this
     isn't aimed at you or anybody else there -- but, so much of
     this regulatory proposal before us sort of says, "we're from
     the government, we're here to help you, and let us go ahead
     and do this, and then we'll tell you how we're going to do
     it."  There are so many unanswered questions in here that it
     leaves us just a little bit leery of saying that this is the
     best that can be done.
              MR. NICHOLS:  Well what we get is on the one hand,
     all operators cheat, or they take advantage of -- to cheat
     legally, you know, set up the conditions we're going to
     sample under.  So we get that on the one hand.
              Then we get on the other hand from you guys, take
     this program over, then we tell you how we're going to do it
     and you don't like that.
              MR. GOOCH:  Well, I guess that's why you're
     working for the government.  I will say, Marvin, that you
     know -- and I think this could be borne out both in the
     industry and with the mine workers -- we get together where
     there aren't microphones and where they're not recording
     things and where there's no need to politicize the process
     and where there's no need to posture.
              And, we sit down and have some good, common sense
     discussions a lot of times about a whole lot of things.
              And, I think that's what this regulatory proposal
     needs.  I think it needs people sitting down and talking
     about what the problem is and how we go about solving it in
     the best manner in a forum where there is no posturing,
     where there is no politicizing of the issue.
              MR. NICHOLS:  Okay, thanks, David.
              MR. GOOCH:  Thank you.
              MR. NICHOLS:  The next presenter will be Shane
     Harvey with A.T. Massey.  Is Harvey here?
              MR. URBAN:  I don't think he is, Marvin.
              MR. NICHOLS:  Okay.  The next presenter will be
     Rodney Smith, coal miner.
              MR. SMITH:  My name is Rodney Smith.  I work
     mostly -- well, I work for all non union mines.  I never
     worked for a union mines.  I don't know a whole lot about
     it.  But, I've learned somewhat in the last few days and it
     sounds like, you know, there's a lot of similar problems.
              As far as inspectors, you know, everybody agrees
     that they can't be there twenty-four hours a day.  We have a
     right to talk to management, talk to inspectors.  If we
     choose not to do that, it's our own fault, because they are
     there and they will normally take care of the problems.
              And as far as I've had problems with safety the
     last four or five years, and I do stand up and try to let my
     opinion be known.
              As far as MSHA doing the dust sampling, they need
     to do the dust sampling because the operator, they're not
     going to do a good sample, you know.  A lot of times, they
     set it up, you know, when they know the MSHA is there.
              But, I'd rather have one -- you know, talking
     about not having enough sampling, if you had one every day
     and it was set up, you know, it wouldn't be no account.
              I appreciate the effort y'all are giving to make
     it better.  But like I said, you know, it takes the men
     that's there to make everything work.  Y'all can have the
     best rules and stuff, you know, that there are and if we
     don't help make it work, it's not going to work.
              And not averaging the samples out, you know, it's
     a good idea.  I mean, one might be getting choked to death
     and the other, you know, may be all right.  But if you find
     a violation, it ought to be cited.
              You know, there's a whole lot of things I don't
     know about.  And, I don't have no speech prepared.  But you
     know, I worked in the mines for twelve or thirteen years.
              It's pretty much all the same, the operators ain't
     going to do no more than they have to to make it safe for
     the men.
              Far as putting up roof bolts to hold their mine,
     you know, they're going to do it.
              Worrying about how much dust you breathe, they
     don't care.  Everybody agrees with that.
              And you know, I've had to walk out of a mines and
     quit because I wouldn't cheat on dust samples.  I mean, they
     left me no choice.  I argued with them for thirty minutes
     and finally had to -- you know, picked my bucket up and
     left.
              And you know, everybody else, you can either go
     along with them and play their game, or you can tell them,
     "hey, this ain't right, I ain't going to do it."  And, they
     will make it hard on you.
              But if everybody stood together, everybody'd have
     to go out.  And you know, that's the problem.  I know at the
     non union mines, you know, everybody talks about this or
     that not being right or whatever.  But most of the time,
     they won't stand behind you.
              And y'all, well we have good laws.  I'm not saying
     that every one of them is perfect.  But enforcing them, you
     know, is another thing, and we have to help there.
              And, I don't know if any of y'all have been in the
     mines or not.  But, I can tell by the comments and stuff
     that y'all know a great deal about the mines.
              And it seems like, you know, y'all are working
     towards the good of the men to me.  And you know, the
     operators, they're going to try to find a way around
     everything that you do, if it's going to cost them money.
     If it's going to slow down production, they're going to try
     to find a way around it.
              And it's up to us to help, you know, tell y'all
     what they're doing wrong and try to help enforce it ourself.
              And as far as them doing their own dust sampling,
     you know, it's ridiculous.  You know they're not going to
     accept a fine if they don't have to.
              Everybody realizes that they cheat on them.
              As far as verification of the plan, you know, they
     need to know exactly what we're working in.  And if they
     come in and find that they're not doing something, it ought
     to be a fine.  It ought to be a stiff fine.  It ought to be
     kept on record, and repeat, you know, right on and right on
     and get those violations, it ought to go right on up until
     they see, you know, that they have to comply with the law.
     And every time you catch them, you know, do all you can
     against them.
              And maybe they'll eventually see that they're
     going to have to do half way what's right.  That's about all
     I have.
              MR. NICHOLS:  Okay, thanks.  Okay, we've got this
     room until two o'clock, so we're going to have to finish up
     by then.  So, I don't see any way to break for lunch.  So,
     we just need to keep going.  Some of us need to go from time
     to time here and check out of the motel, I guess.  Is check
     out time noon?  Two o'clock?  Okay.  Well, why don't we --
     we've got Gary Bartley -- he's not here?  Douglas Peterson,
     is he present?  Okay, I think we've taken care of him.
     Let's see, we've got eight more presenters and they're all
     United Mine Workers, and we've got about two hours left in
     the room.  So, you guys need to work out your presentations
     within this allotted two hours.  We don't have any other
     place to go.  And, Jim Weeks is next on the list.  Do you
     want to come on up, Jim?  See you in Salt Lake?  Okay.
     Larry Hatton?
              MR. HATTON:  My name's Larry Hatton, L-A-R-R-Y, H-
     A-T-T-O-N, from Whitesburg, Kentucky.  I worked in the mines
     about twenty-five years, a little more.  And, I ain't got
     much to say.
              I ain't got the wind that this other fellows has
     got, because I've got a disease.  It ain't one I can shake
     off with a few shots of penicillin, or even a hundred shots.
              I've got black lung.  I'm in second stage.  And, I
     know what caused it.
              And, all I want to bring to y'all's attention is
     what, there's about ten of y'all, what about if three of you
     died before you got to the next one?  You want to find out
     what killed them.  And, you know that it happened here, if
     you know it happened, you're going to find out what caused
     it.  And if you did find out the cause, would you want to
     slow it down or would you want to stop it?  And, I'd like to
     see it stopped.
              I have a boy of mine, my son started in the mines,
     it was about a month ago.  And, I don't want to see him
     twenty years from now go through what I'm going through.
     And like I say, I don't want to talk much, but I'd like to
     see y'all do it because what's been going on for the last
     twenty-five years of my life, it's not worked.
              And, I don't think that really what you're trying
     to do now is going to solve it.  It would slow it down, but
     it won't stop it.
              And if you know it's happening, if it was
     happening to y'all, y'all don't want to die.  Stop it.
              And, that's really about all I've got to say.  I
     just want y'all to really consider it, think about.  Think
     about us boys, the ones that's went before me and the ones
     that's going to go after me, if it's not stopped.
              But, everybody work together and try to get this
     thing to where it ought to be.
              Like I say, we don't want this to be like a boxing
     match, ring the bell, and next time we meet, just ring the
     bell and start another round.
              Let's put an end to it.  Find a resolution now
     while we got time.  And, just try to end it.  Thank you.
              MR. NICHOLS:  Thank you, Larry.  I can't read this
     next name.  Darrell Perez?  Anybody whose first name is
     Darrell?  Okay.  I've got James Linville and James Jarrell
     on the list.  They've already presented comments.  Bobby
     Mullins?
              MR. MULLINS:  My name is Bobby Mullins, B-O-B-B-Y,
     M-U-L-L-I-N-S.  I work in District 17, Local 9177 in Boone
     County.  I've been a coal miner for about twenty-three
     years.
              I don't work underground, never have worked
     underground.  I've been in a prep plant all my coal mining
     career, same one Jim Jarrell works at.
              And from listening to the testimony, I thought
     that perhaps an experience we had at our prep plant might
     shed a little light on one of the key issues that seems to
     be the panel's proposal to bring dust control under -- or,
     to bring dust under control.
              And, that is the planned engineering controls --
     what do you call it, the proposed plan, control plan.
              We have at our plant, and we've had it almost
     since it's been built in '87, we have a dust control program
     in place, because when we started up, we were out of
     compliance with dust.  And it's similar, I think, with what
     you propose to do with underground mining and I'm not sure
     what you're going to do with surface mining when you address
     that.
              But, we have a dust plan system.  And, we were
     noticing that at times the dust would get real high in our
     plant.  The men that worked there could notice the levels of
     dust going up without having any tests taken.
              We went to management several times about this
     problem.  And they said there was no problem, except maybe a
     few holes in some of our dust plate tubes and this sort of
     thing.
              Well, this went on for quite some time.  So
     finally we contacted MSHA.  They did come up and do a dust
     sample run.
              And, we were out of compliance.  We weren't
     citable, but we were above the limits that they wanted to
     see us to run at.  Okay.
              So the company was told to correct the problem.
     They had to do the, I think it's a thirty day sample for
     three months.  They had to take the frequent samples.  With
     the sample averaging, they were able to get it down within
     compliance.
              So I'm really happy to see that you do the full
     shift sample.I can see where that would really be a benefit.
              But, the problem wasn't solved.  I could tell it
     wasn't solved because I worked in the atmosphere.
              So, the company formed a committee with the union
     members at the mine to address the problem and see if we
     could come up with a better solution.
              And the problem was addressed and the company
     said, "this is the way to go with this," new shoes, this
     sort of thing, things that had gotten a little bit of age on
     them, and they were not doing quite the job they did do.
     They did that, and I could still tell that the dust levels
     were higher than they should be.  And, I insisted that they
     do more.  And, this went on for three months.
              And finally, they went to the dust control fan
     that we had and I insisted that they take air readings on
     it.
              And come to find out, our dust control fan was
     running backwards.  So, there was no dust being taken out of
     the air.  If anything, there was more dust being generated.
     It was blowing the dust off the belt.
              And the reason I bring this up is if you have a
     plan and you say the minimum requirement is the bimonthly
     samples from MSHA, then if this problem came up under that
     system, it seems to me that even if MSHA came in on the
     bimonthly thing and they take their readings, if they're out
     of compliance, then could not this problem go on for several
     months?
              And then, the burden is all on the miner to prove
     that there's something that can be done that's not being
     done to bring the dust levels under control.
              So if we had continuous dust monitors, if we had
     active miner participation in what was going on and more
     frequent sampling, would it not lessen the likelihood a
     great deal of this sort of thing taking place and miners
     having to breathe out of compliance dust for long periods of
     time, trying to get a problem solved?
              That's the issue I would like to ask the panel to
     consider when they look at this proposal before they make a
     final draft.  Thank you.
              MR. NICHOLS:  Thank you.  Okay, Tom Wilson?
              MR. WILSON:  You expect Ron to be right back?
              MR. NICHOLS:  He's gone to check out, yeah.  Why
     don't we -- let's take a fifteen minute break.  We'll all go
     check out.  Then we'll all be available to spend whatever
     time we need between now and two o'clock.  Let's all be back
     at quarter after twelve.
                             (OFF RECORD)
              MR. NICHOLS:  Okay, Tom, you ready?
              MR. WILSON:  Ron, is the chart still available
     that you put up earlier on the number of citations issued on
     single samples?
              MR. SCHELL:  It wasn't a chart, it was a piece of
     paper I had, Tom.
              MR. NICHOLS:  We had an overhead somewhere.
              MR. KOGUT:  No, I had that, I put some data
     together.
              MR. NICHOLS:  Are you talking about the averaging
     chart we had up on the screen?
              MR. WILSON:  Yeah.
              MR. SCHELL:  Oh, you mean that showed the average,
     the difference between averaging and single sample?
              MR. WILSON:  Where you showed -- it was your last
     little presentation and then afterwards, you talked about
     the number of citations that had been issued during the two
     periods.
              MR. SCHELL:  Okay, hold on one second.  We can
     reproduce it, Tom.
              MR. WILSON:  You don't have to do that.  If you
     would, for the UMWA by the quickest means possible, provide
     that for us, along with a comparison of had it been under
     the averaging, current standard, how many citations, side by
     side comparison of those same samples?
              MR. SCHELL:  Will do.
              MR. WILSON:  Okay, thank you.  Over the last two
     days -- is this mike on?  Okay.  Over the last days, you've
     heard a lot of testimony concerning the miners' wish for
     there to be increased sampling days, and the strong feelings
     that under MSHA's proposed rule there's an inadequate number
     of sampling days.
              And, I hope to quickly be able to do this.  But, I
     want to briefly walk back through the transcript of
     Charleston, Salt Lake City and Lexington, just so everybody
     can get a feel for where I believe MSHA was at on all three
     of those dates.
              And I don't plan to read all the transcript or
     testimony into the record.  And, I will say that at least on
     Lexington, MSHA's figures at that point was charged by the
     committee to come up with something that was reasonable, and
     not consider cost at that point.
              And, we first will deal -- this is the reason I
     asked for Ron to be here, because it was his testimony --
     with Charleston.  This is Mr. Schell.  "We have looked at
     the issue to determine what we could do and what we
     realistically felt that we couldn't do, if a determination
     was made that MSHA would do all the compliance sampling.
     And a couple of the things that we tried to factor into
     that, and there are things that you talked about today that
     we think are important, we do think that having adequate
     plans is key, and we think having verified plans is key.
     When we looked at our resources, we basically assumed that
     we could be making determinations based on single sample
     measurements.  So we weren't looking at days of multiple
     sampling on a routine basis.
              We also tried to be realistic in that we don't
     anticipate that our agency or any government agency will
     continue to grow in the future.   So, we need to factor in
     what's going to happen in the future.
              Given that, I can tell you what we can't do.  We
     can not assume the operator sampling program and sample on a
     bimonthly sampling.  We don't have the resources now to do
     that.  And with our estimates of the amount of resources it
     would take, I don't think we could ever do that.
              Our current thinking -- and again, I have to
     preface this by saying that we haven't talked to the
     Assistant Secretary about it -- but, our current thinking is
     that we might perhaps be able to double the amount of
     sampling that we do underground.  We think that we might be
     able to double the amount of sampling on the surface where
     we've identified potential problems.
              We think we also will have to increase targeted
     sampling at mines where we've identified problems, and that
     sampling could include going back four times a year, or five
     times a year.  So, that's the ballpark numbers that we've
     been discussing, given the overall resources."
              Dr. Wagner:  So, you're saying you could get to
     each mine twice a year and to troubled mines four or five
     times a year, but nothing more?  Mr. Schell:  I would
     probably say we could get to underground operations twice a
     year.  Dr. Wagner:  Above ground once a year?  Mr. Schell:
     Above ground once a year, except those operations that we've
     identified as having a problem or a potential problem.
              That was in the Charleston hearings.  And, that
     helped shape the discussion of subsequent hearings.
              Now we'll flip to Salt Lake City.  Mr. Schell:  At
     the meeting in Charleston, I indicated that at the staff
     level we had talked about what additional resources MSHA
     could commit to sampling, and that really was a staff level
     discussion.
              After the meeting we went back and we took into
     consideration the comments of Mr. LaMonica, Mr. Main and we
     have met with our managers, and we've had discussions higher
     up in the organization, and we have modified our position on
     the level of sampling that MSHA can undertake, recognizing
     that we need to do more, and assuming that we're going to be
     citing based on single sample measurements.
              What we propose to do now is under our Act, we are
     required to inspect every underground mine four times a
     year.  We're required to inspect every surface mine twice a
     year.  We will conduct a full shift sampling inspection
     during each of those regular inspections.  We refer to those
     as triple A inspections.
              So, every MMU underground will be sampled four
     times a year.  Basically every pit on the surface will be
     sampled twice a year.
              In addition to that, we will target our problem
     mines.  They would be sampled at least bimonthly.
              The particular effect of doing that is that the
     number of samples taken by MSHA on the surface will increase
     significantly.  We will sample approximately four times.  We
     will take approximately four times more samples on the
     surface than we do presently.
              Underground, the number of samples that are taken
     will be reduced by approximately one third.  However, we do
     not think that there are some -- excuse me.  However, we do
     think that there are some advantages to MSHA sampling over
     operator sampling that you should be aware of.  First when
     MSHA samples, we know and we can document the dust control
     parameters in place and the work practices that occur on
     that section.
              Over time, that gives us an enormously powerful
     tool to be able to make judgement on what works and what
     doesn't work.
              So we think that collecting that information four
     and two times a year is a significant improvement in the
     program.
              Secondly, when MSHA samples, we sample multiple
     occupations.  More miners will be sampled under our program.
              Currently as you know, the operator samples the DO
     once on five consecutive shifts.
              MSHA samples the DO, all sectional DAs and other
     miners up to five miners per shift.
              So we will be sampling more people underground,
     although there will be fewer samples taken.
              On the surface operations today, they're only
     required to sample bimonthly, if MSHA has designated those
     occupations as being potentially at risk, the DWPs.
              There are about three hundred mines in the country
     that have to sample on a bimonthly basis.
              If MSHA conducts two samplings on the surface, as
     I have indicated before, we will be sampling four times.  We
     will be taking four times as many samples, and we will
     sample a lot more occupations, because like underground,
     when we go out in the mine, we will take the pumps with us
     and we will try to sample up to five people.
              Lastly, since our inspections are announced -- are
     unannounced, excuse me.  Lastly, since our inspections are
     unannounced, we think that our sampling will be the most
     representative sampling that we can get of what actual
     conditions are.
              Secondly, because our sampling is random, we
     believe we'll sample all mining operations, longwall start
     ups, turning cross cuts, regular mining.
              And lastly, we will have the benefit of the
     miners' representative on each of these sampling
     inspections.  They go with us now.  That's a statement
     raised by one of the speakers here.  That's correct.  They
     have that right now.
              But currently, basically we sample underground
     once, surface once.  Now we'll be sampling four times
     underground with the miners' rep, and we'll be sampling
     twice on the surface with the miners' reps.
              Chairman Wagner:  When you say there will be a
     third reduction in sampling underground, you're referring to
     a third reduction in compliance sampling, not a third
     reduction in MSHA sampling.  Is that correct?
              Mr. Schell:  Yes.  What I'm saying is if you
     compare the number of samples operators take now to --
              Chairman Wagner:  To what you would be taking for
     compliance?  Mr. Schell:  Yes, yes.  Chairman Wagner:  Okay,
     fine.  Mr. Weeks:  So if they sample ninety thousand, you'd
     be doing sixty thousand?  Mr. Schell:  Yes.
              Dr. Dement:  Is that really true, if you include
     the plan samples, any samples that might be required to then
     show changes in plan or perhaps plan changes triggered by
     inspections and third reverification plans required by MSHA?
              Mr. Schell:  We'll be doing more sampling than
     just this.  As I've indicated to you, we will be doing
     targeted inspections.
              Our discussions have focused on the point that you
     thought the verification sampling should be different than
     the compliance sampling.
              We didn't have the benefits of the conversation to
     factor that into these figures, and recognize that we do
     undertake special initiatives that generate additional
     sampling.  That's not included.
              But if you look at the basic quality control
     sampling program, that's where you get the one third
     reduction.  And, it basically comes down to the fact that
     mine operators today sample on a bimonthly basis.  They
     sample six times a year underground.  We'll be basically
     sampling four times a year.
              Chairman Wagner:  You're saying sample, but not
     necessarily, when you summarize by saying it's a one third
     reduction in total number of sample counts, it's not a one
     third reduction.
              In fact, there's been an expansion in total amount
     of information coming out of the mine in a year because
     you're sampling different, a fuller range of mines, Mr.
     Schell.
              That's where I'll move on and go to Lexington.
     Dr. Wagner:  Who can speak for the agency's discussion?  Mr.
     Miller:  Mr. Schell.
              Mr. Schell:  I want to thank you for the
     opportunity.  This was a tough assignment.  Every time we
     started talking about it, we'd make one suggestion and find
     three other things we needed to add to it.  We'd add those,
     and we'd find four other things to add to it.
              So what we're going to give you is what, based on
     an ten minute exercise, we felt might be a point at which to
     start.  The amount of time we spent on it may reflect the
     value of our presentation to you.
              But, this is our best attempt to try to address
     your comment, that we sample at a level which is sure
     representative characterizations of respirable dust
     exposure.  We would really also like input from you on what
     you think that level would be.
              We also tried to be reasonable, but we didn't try
     to factor cost into this.  We do recognize that what we're
     talking about here would involve significant costs.  But
     again, we tried to follow your mandate, Doctor, which was to
     ignore costs and try something that was reasonable.
              We started out saying that we would have three
     assumptions, the first being that we were using single
     sample to make compliance determinations, the second being
     that we would have better plans and verified plans, and
     that's no small topic in our view.
              We sincerely believe that verified plans that
     control the dust, that are checked every day is a
     significant improvement to the existing program.
              Having said that, what we think might be a
     reasonable starting point for a reasonable program would be
     to sample each month, each MMU.  That would involve taking
     our five samples, one in the DO, one on four other
     occupations, make compliance determinations on each of those
     samples.
              Factored into that, we would like to focus
     targeting efforts at bad mines.  Targeting, we'd sample as
     frequently as we felt we would need to.
              We also believe we would consider a less frequency
     at good mines.  That means that we would be sampling each
     MMU at a minimum roughly of about twelve times a year, each
     surface facility four times a year.
              That wouldn't be the total sampling, because in
     addition to that, we'd have to do abatement sampling.  So
     abatement sampling would put us there on multiple shifts for
     we estimate at a minimum another ten to twenty percent
     sampling days.
              We also would have to return to sample when we
     didn't reach production levels.  We believe at a minimum
     that would be an additional thirty percent of the sampling.
     And, that's probably conservative because you could sample
     one day and not reach the ninety percent, come back the
     second day and not reach the ninety percent, and you'd have
     to return a third day.
              So that would be a significant increase in
     sampling.
              Dr. Wagner:  Did I understand that with your
     explanation of how you would vary sampling according to good
     and bad and what have you, that on average, you think the
     basic sampling would be twelve times for your underground,
     four times for your surface, and the verification to be
     determined?  Mr. Schell:  That's correct.
              Dr. Wagner:  Okay.  And then, the percents were
     added onto that.  Mr. Schell:  That's correct.
              To the best of my ability, that's the three
     occurrences where MSHA addressed on the record their ability
     to do the sampling.
              Those three occurrences, each one of them formed
     by what they was hearing from MSHA, formed the direction the
     committee went on their recommendation, and ultimately
     resulted in the committee's recommendation.
              After each one of those explanations, I think it's
     fair to say that it was the consensus of the Advisory
     Committee that what MSHA was proposing, even though it was
     progressively getting better, each attempt to study it and
     determine resources and costs, that even their final
     proposal was not adequate.
              Following the Lexington discussion that I just
     read, the committee got into a very detail  ed discussion
     on at least for the interim, maintain the operator's
     sampling and how all of this was to be funded.
              With that said, I don't think it should be of
     little surprise that one would get from hearing some of the
     panel's comments back to miners, that miners are not
     satisfied with where the proposed rule is at.
              We do not believe there's adequate sampling days
     in this proposal, as the Advisory Committee didn't believe
     twelve sampling days per MMU per year was adequate.  And,
     there's a complete discussion in the transcript of the
     Advisory Committee as to exactly how that -- all the
     feelings on that.
              I would like to ask that, as many of the miners,
     or all of the miners have, again is that consideration, go
     back and consider the testimony, the transcript of the
     Advisory Committee which spells out clearly how, the reasons
     why that's an inadequate number of sampling days in the
     nation's coal mines.
              Now we went from twelve, as I read it, at the
     Lexington hearing to when, on July 7th it's down to six.
              And it is just, it's been said repeatedly, an
     inadequate number of sampling days for miners to regain any
     confidence in the dust sampling program and to adequately
     protect miners' health.
              In the preamble, I'd like to address two of the
     areas that MSHA specifically asked for comments on.  One
     second?  These are found on 42128, the middle column.  It
     reads, we solicit comments on whether MSHA should require a
     higher level of confidence that the applicable standards are
     being complied with before abating a citation for excessive
     dust.  Specifically, should abatement determinations be
     based on the critical values specified in 70.209?
              We also solicit comments on whether abatement
     sampling should be conducted at or above verification
     production level, VPL, as defined in 70.2(a)(a).
              Under these proposed rules, MSHA isn't proposing
     very much sampling at all.
              Even if MSHA went back and revised these proposals
     increasing the number of sampling days, I'm sure that it
     would not be raised to the level the Advisory Committee
     thought was necessary.
              Therefore, before abating a citation for excessive
     dust, MSHA should have the highest level of confidence
     possible.
              The UMWA believes that abatement determinations at
     the very least be based on the critical values specified in
     70.209.
              However, the UMWA does not agree that it is
     adequate to do abatement sampling at the verification
     production level, VPL, as defined in 70.2(a)(a).
              70.2(a)(a) defines verification production level,
     VPL, means the tenth highest production level recorded in
     the most recent thirty production shifts.
              The UMWA believes -- no, we know that the
     definition for VPL is one of the weaknesses for MSHA's
     proposed rule.
              This is one of the areas in your proposed rule
     where MSHA looked at the sample burden on them, instead of
     the health of the miners.
              MSHA chose to compromise miners' health, so as to
     not to have to conduct multiple samples to achieve
     production.
              MSHA should immediately come up with a more
     stringent definition for VPL and abatement sampling must be
     conducted above the verification production level as
     currently defined in 70.2(a)(a).
              I also need a clarification from MSHA.  Is
     abatement sampling based on single shift sampling, or not?
              MR. SCHELL:  It's based on single shift, Tom.  We
     don't intend to average.  Tom, let me ask Jon to clarify
     this.
              MR. KOGUT:  I just wanted to clarify one thing.
     The context of our solicitation when we asked if abatement
     should be based on the same set of critical values as
     defined in those tables, and that could require more than a
     single shift, depending on what the concentration levels
     were in accordance with the tables that you cited.
              MR. WILSON:  I want to refer you to page forty-one
     of the Advisory Committee report, recommendation number
     sixteen, the last sentence of (g), abatement of citations
     based on MSHA or operator sample should require the operator
     to sample on multiple shifts, as currently required.
              Now possibly I'm going to have to think through
     that more, on Jon's answer.  But, I believe at this point
     the intent was not to give the operator just one shot at
     cleaning up their act and going down and checking down that
     everything's good.
              The second part, on page 42128, third column, it
     reads, as in the case of MMU abatement samples, we solicit
     comments on whether MSHA should require a higher level of
     confidence that abatement samples for non MMU, DAs and for
     Part 90 miners demonstrate compliance with the applicable
     standards before abating a citation for excessive dust.
              Specifically, should abatement determinations be
     based on the critical values specified in 70.209?
              The UMWA would believe that for all the reasons
     stated earlier, and even more so in that column, that they
     should be based on 70.209.  Any questions?  Thank you.
              MR. NICHOLS:  Thank you, Tom.  Okay, Joe, are you
     ready?
              MR. MAIN:  I'm it?  Speaking off of what Tom's
     testimony was on the Dust Advisory Committee, I did send a
     letter to MSHA asking the entire transcript be placed in the
     record.  And, I'd like to officially provide the committee
     with a set of disks.  I would urge everybody who has a
     laptop to crank it up and look at it.  There is a lot of
     things that we will be submitting for the record out of the
     transcript.  It gives a background of the decision making by
     the committee, and how they arrived at their conclusions.
              And for those that would be mystified by the
     union's opposition to this rule, I think that if you would
     look at the expectations of the union based on the Advisory
     Committee created by the government, which we supported, and
     which we had believed would be the template for the reform
     of the dust program, it doesn't take a genius to figure out
     why we're disappointed as to where it's at, given the fact
     that we've got about twenty-five years of us wearing
     ourselves out at microphones talking about the same things.
              But I would urge, Marvin, that you provide the
     committee with a complete copy the most convenient way,
     that may be the easiest way, of the testimony on each of
     these issues, and request that the panel go through that.
              One thing I didn't realize until yesterday when a
     miner raised it was that there are no coal mining people on
     this board.  And, I understand the depth of some of the
     resources you have, Marvin.  But, I do think that poses a
     difficulty, as miners are trying to relate to mining
     situations that I think the panels really need to be clear
     on, the circumstances, to be able to understand how this
     rule's going to apply.
              And I think that my recommendation is that
     whenever the government creates panels like these,
     particularly on such a serious issue, that we have people
     with coal mining backgrounds, who can understand.  I think
     it's a deficit in the rule making process not to have --
     when you have so many people in the agency that could fit
     that bill.
              But, I understand now that question was asked and
     the response was there is no coal mining, people that
     actually did coal mining in the past.
              MR. NICHOLS:  Well, that's correct.  But as you
     know, my response was I have several hundred coal mining
     people to draw from.
              MR. MAIN:  Yeah, I understand.  But this panel
     who's taking all this information who are going to help
     guide the decision making process, I think it's a deficit.
              MR. NICHOLS:  Okay, but --
              MR. MAIN:  We can disagree on that but I just
     wanted to make that a statement from our side.
              MR. NICHOLS:  I'll just say that this document has
     been reviewed by a lot of people with coal mining
     experience.
              MR. MAIN:  I think it gives people more comfort to
     know that people up here understand what they're talking
     about from their background.
              My next question is what is the MSHA time table
     that you have for actually issuing the final rule?  As it
     stands right now, what is your best guess of the final rule
     actually being produced?
              MR. NICHOLS:  Well, we've said we'd like to get it
     out this year.
              MR. MAIN:  So the expectation is that you'll get a
     rule out this year?
              MR. NICHOLS:  That's correct,
              MR. MAIN:  And, there is two rules that we're
     talking about.  One is the single sample rule.  And the
     other is the implementation of the whole dust sampling
     scheme, the plan verification scheme and all that.  Correct?
              MR. NICHOLS:  Yeah, single sample and plan
     verification.
              MR. MAIN:  In the plan verification rule or in the
     single sample rule, as I understand it, basically it comes
     down to a standard by which MSHA may use a single sample
     rule to conduct sampling at coal mines.  It's a one
     paragraph rule that basically just implements a, for lack of
     a better word, a policy for conducting inspections in the
     regulatory framework.
              MR. NICHOLS:  Yeah, that's right.
              MR. REYNOLDS:  Mandatory standard.
              MR. MAIN:  It's a mandatory standard, yeah.  Okay.
     And as I understand it, really when you look through that
     rule the long term thing that affects that is this standard
     or not a standard, but talks about the ninety-five percent.
     What is it, I've got that word wrong --
              MR. NICHOLS:  The confidence level?
              MR. MAIN:  The confidence level.  So, that's
     pretty much the single sample rule if you sort of cut it out
     from the rest.
              There are implementation provisions, however in
     the plan verification rule that determine on any given
     situation how that single sample would be applied, as I
     understand it, in that the definitions define what the four
     hundred and eighty minute inspection is and through the
     preamble policy, defines what is or is not in that category,
     to really determine the whole shift aspect of the single
     sample.  Okay.
              And as I also understand it, MSHA plans on doing
     at least at this stage, six inspections a year    or
     bimonthly inspections, which is what MSHA as I understand is
     currently doing, given the information that was put out.
              MR. NICHOLS:  Yeah, underground, Joe.
              MR. MAIN:  So in other words, if the single sample
     rule was implemented, it would allow MSHA to do what they
     plan on doing to a great degree, but using -- take out the
     averaging problem and deal with that in the single sample
     rule, and still do the same number of inspections that they
     intend to do or that they're currently doing now, kind of
     like a round about way of trying to figure out how all of
     this works.
              MR. NICHOLS:  Yeah, as we said earlier, that's a
     minimum number of inspections.
              MR. MAIN:  But you could use the application of
     the single sample rule to carry out the function of getting
     rid of that averaging, if the single sample rule went
     through, as I understand it, with the same number
     inspections that you're doing currently with or without a
     change in the regulations.
              MR. NICHOLS:  Yeah, that's right.
              MR. MAIN:  So in other words, we could possibly
     resolve of the single sample rule would be with the comments
     that have been made by the miners, and some of these other
     issues in the Part 90, Part 70, Part 75 areas with regard to
     what a full shift is, what the standard actually is using
     the ninety-five percent confidence level.
              As I understand that, you're applying that to Part
     70.100 by saying that that two milligram standard in 70.100
     would be two point three three, because actually it's the
     standards in Part 70 that's going to be affected.
              The ninety-five percent thing has nothing to do
     with setting the standard itself.  It's a formula by which
     you would apply whatever's in 70.100.  Correct?  And, 90.100
     and so on?
              MR. SCHELL:  That's right.
              MR. MAIN:  Okay.  I think there's been a lot of
     testimony since I started these hearings in Morgantown that
     have made a couple of things fairly clear, that miners are
     dissatisfied with this rule, and that there have been some
     requests to have the rules to go back to the drawing board
     and be revised.
              I'm just trying to figure out, you know,
     logistically what the regulatory parameters are here because
     I think that does provide some leeway to allow what needs to
     be done here on the part of the miners, and allow the agency
     to move forward with at least one piece of that rule, if I
     understand the separation of the two rules correctly.
              And having said that, the agency, the Department
     of Labor which is the primary party, did in fact at the
     request of the operators send a rule back to be revised and
     republished in 1999, I believe it was.  I've lost track with
     all the regulations I'm working on.  But I had been working
     on the rules to reform the federal Black Lung Disability
     program.
              There was issues raised by the industry that they
     were dissatisfied with certain issues.  The Department of
     Labor pulled that rule back, issued another proposal and
     went through the process again.
              So there's nothing that's been said here that is
     uncommon in the regulatory scheme of things that has been
     raised in so far as the concerns of the miners.
              I sat through two days of testimony here and
     through a day in Morgantown, and I have walked away with one
     clear conclusion, that the miners have been consistent about
     saying that these regulations fall far short in several
     areas, that there is an overhaul of the regulations that
     meets the miners' needs and needs to meet the needs of the
     Advisory Committee time after time to the point that I
     think, you know, you could just play the worn record over,
     as many miners testified.
              And I think given the mass volume of testimony the
     agency has taken thus far, there is an obligation to listen
     to what the public comment is on this rule.  I think that
     that's one small piece of the government's influence that
     the public still has left in this country.
              And, I think when the public does come out with
     those kind of straight forward concerns, requests and
     demands, that there is an obligation on the part of the
     government to heed the comments.
              And along those lines, I will reiterate what we
     have said, is that this regulation is fatally flawed, needs
     to go back to the drawing board and needs fixed consistent
     with the historical record that has been established.
              And I'm going to build a little bit more on that
     historical record here this afternoon because I think the
     committee -- there is some of the pieces of the historical
     record that's missing that I think we need to make clear
     before this whole process winds down.
              You know, many miners have said, as they testified
     here and left, but we talked and asked us guys, you know,
     what we all think, and I think that there was a lot of
     miners walked out of here thinking that this agency again is
     not going to listen to what they have to say, not going to
     react to that.
              Now that's not Joe Main's opinion.  That's more
     like one of those Joe Main polls where I ask miners as they
     go through the process.
              And if you look at history, you know, they're
     probably right, you know, that's one of the sad realities
     that we have.  We have a legacy of the government talking
     about doing a lot of things and not following through.
              And along that line, I'm just going to go back to
     another document, which I don't have a copy of.  If you need
     it, I can provide it.  It's actually probably part of the
     regulatory record now.
              But, it's a series of note takings that took place
     on plan verification meetings that was held in preparation
     for this rule and it was prepared and sent out to us by Pam
     King, and it was sent to Ed Green, Joe LaMonica, Joe Main,
     Bruce Watsford.
              And, I'm just going to read.  This is the agency's
     own documents that was prepared by them on notes of meetings
     that were held in preparation for this rule making and in
     particular plan verification, airstream helmet use and those
     things.
              On page five of the document that is meetings with
     UMW Safety Committees that's attached, there is some
     discussions on miners working outby.
              And of course, I've heard a lot of discussions
     about miners working outby.  They are not sampled, not as it
     is, the clear message I've got as a member of the Advisory
     Committee, in talking to coal miners in mines, coming to
     these kinds of sessions and there's been a loud and clear
     message that I think has been out there for some time, but
     the contents on page five of this document states another
     UMWA commenter wanted to know why sampling was concentrated
     only inby.  He stated that he had worked outby for twenty
     years and never seen sampling take place.
              Schell -- I don't want to put you in the spotlight
     but, I think you're the Ron Schell we're talking about here
     -- Schell responded that MSHA had not focused on this, but
     would look into it.  MSHA has an outby DA and sees no
     problem doing this.
              The same commenter wanted to know about the silica
     dust including the outby.  Schell indicated that MSHA would
     focus on the outby.
              Now again, just what miners hear from the
     government and what they see, this is reality.
              This miner, whoever he was and these miners
     sitting in this room that heard that, and saw the agency
     come back with a proposal that did one sample outby, I think
     that any way you look at it, it probably shakes those
     people's confidence that the government really heard what
     they had to say and responded to that.
              That's again a matter of record.  And, it was in
     preparation for the very rule that we're talking about
     today.
              As I see the end result, there was very little
     consideration given to the outby miners and outby sampling
     in coal mines.
              And, I do believe these miners are absolutely
     correct in what they're doing is to get a DA tied to a
     drive, and get all these miles of belt lines, all this dust
     everywhere else, as one gentleman talked about being moved,
     as a Part 90 miner, into that area because it was a cleaner
     sampling, where they had him shoveling belt the day they did
     the sampling.  And I think the panel needs to listen to
     those kind of things carefully.
              That's really where I'm talking about really if we
     had people with mining experience to understand that, I
     think they would be more helpful.  I don't know, but in my
     opinion, it probably would, for things like that, just
     giving it the attention that it probably needs.
              On page three of that same document when they were
     talking about the plan verification process, and I think,
     Ron, you were doing it at the time, it says another UMWA
     commenter asked about the three verification samples that
     MSHA was talking about at the time, and how would MSHA deal
     with the other twenty-seven days       .  He said it's not
     hard to get three nice samples, which we have all
     experienced in a lot of testing over the years and how
     operators create nice samples to get in compliance.
              Schell said that this issue was being addressed by
     the plan proposal to require continuous monitoring.  And I
     think people walked away from that meeting, and people
     who've watched the news accounts of continuous monitoring
     over the years firmly believed that this agency was, you
     know, was going to do it, that it was something that was
     going to be coming out as a protection that they had been
     seeking for twenty-five years.
              But as we know when we read the rule, and I'm sure
     the miners that was in this meeting that heard that was
     probably somewhat disappointed in that the expectation that
     was there was not a reality when the government made its
     decision.  And again, I think those kind of things go to
     shake the confidence that the miners have in this whole
     regulatory process that makes it very difficult for all of
     us.  And, I don't defend what you guys say any more.  I just
     say watch and see what they do.  And that's unfortunately,
     you know, the situation.
              With regard to, and I'm going to introduce that as
     a document in the record.  If you can't obtain a copy of
     that, let me know.  We'll probably talk about that more as
     the hearing and public comment period goes on.
              But, we do have to say that the comment period was
     very, very short.  Myself and a lot of other folks have
     probably trimmed a few years off our life with the sleep
     we've lost, maybe some on the panel, too.  But, this has
     been a tremendous amount of information and a tremendous
     amount of change that has taken place in such a short period
     of time, I mean a lot of miners came here not even having a
     clue and I'm telling you there's miners out there widespread
     that this document is so massive, they can not begin to
     comprehend what's in it.
              I've gotten an education at both of these hearings
     and I've learned a lot.  I've studied this thing frontwards
     and backwards, talked to everybody I could to figure it out.
              There's absolutely no way that the average coal
     miner out there has a clue as to what's in the package and
     how it works.  And, I think the thirty day time period was a
     real problem with that.
              I understand the expediency at which the
     government wants to move, but I think there's a detriment
     for miners who don't get an opportunity to even understand
     what the government's moving on, is something that really
     happened in this rule making process, and I'm not sure that
     we will not ask for an extension because we've tried to cram
     so much stuff in a short period of time.
              We do appreciate the openness and opportunity
     we've had at the hearing, but as you can see, there is
     virtually a pile of stuff that we're just trying to pull out
     and put together as we go.
              With regard to the sampling scheme, as I
     understand it -- and Ron, I think you've done a fair job up
     in Morgantown and here in explaining it -- once a mine
     operator gets a plan verified, whether it be one sample, two
     samples, three samples, then your back up to determine
     compliance with the standard and to do the back check as to
     what miners are really being exposed to and then measuring
     activity is going to be a bimonthly sample which will take
     place.
              MR. SCHELL:  Yeah, that's part of it, Joe, also
     it's the daily checks.
              MR. MAIN:  Okay, but as far as the verification of
     what the exposure is, as I understand it, the only tool they
     really have in there to do air measurement to verify is the
     bimonthly sample six times a year.  There's no other
     environmental sampling that takes place to determine a
     miner's exposure once the plan is verified.
              MR. SCHELL:  That may not be correct, Joe.  As you
     know, we have a health standards compliance program where we
     target mines that have problems, and they get sampled much
     more frequently than six times a year.
              Also if the inspector goes in there and sees
     something that isn't right, for example, we mentioned that
     one of the things we're going to be doing is checking
     production rates, if we see production going up higher than
     what it's verified at, we'll be coming back to do sampling.
              So I want to stress what Marvin had to say, that
     that sampling that six times is a minimum.  We clearly have
     places where we're going to be sampling more than six times.
              MR. MAIN:  But the way the agency's resources is,
     and that again gets into what money you have to do what
     you're going to do and any budget cuts may influence that,
     which we all realize.
              MR. SCHELL:  Well, the one thing we are committed
     to is paying more attention to those operations that have
     been shown to have problems.
              MR. MAIN:  Now the reason I asked that question is
     that I want to introduce another document into the record
     and I'll try to provide more copies.  My car was packed to
     the hilt with everything else I had.
              But, it's the Louisville Courier Journal.  It's
     the series that was ran in April of 1998.  And this is the,
     they call it the, I guess edited version or a reprint of the
     series, which tidied up all the week long articles into one
     collection of newspaper print.
              And as you read through this, and if there is
     anybody on this panel who hasn't read this article, you
     should stop what you're doing and take about five --
     probably more than five minutes, probably about a couple
     hours and read through it, because it has a lot of quality
     information, I think well documented pieces put together on
     any dust investigations in modern times.
              As a matter of fact, I understand the chief
     investigative reporter was awarded a medal by the President
     of the United States for the outstanding job that he did
     putting this document together.
              So having said that, I'm sure the President of the
     United States would not bless some kind of article that had
     some false parts to it, you know.
              MR. REYNOLDS:  Do you have the date on that, Joe?
              MR. MAIN:  This is the, actually a reprint.  I
     figure the one on this is April the 19th.  It ran through, I
     think five different days.  But, the series reprint will
     have that week's worth of information.
              As I read through this and look at the other
     miners that's not represented in this room, I don't know if
     anybody noticed there's not many non union miners here in
     these hearings.  They may have been, and if they were, I
     just missed them.
              But as you read through this article, it tells a
     pretty compelling story about how different mine operators
     just don't follow the rules and don't work within the
     confines of the rules.  And, many of those have been nailed
     through criminal investigations and have been convicted
     because of criminal conduct, to run operations in what we
     would call an, I think outlawish way that cheated on dust
     sampling and exposed miners to unhealthy dust.
              And it has -- this story has interviews with mine
     officials and miners that was used to put together the
     thrust of the article.  I think there was two hundred and
     fifty-five individuals, either miners, mine officials, mine
     superintendent, mine foremen interviewed for this article.
              But, it tells a pretty clear story here that at
     these mines, the mine operators when there is no miners'
     representative to protect labor, as is outlined in this
     article, has ran operations that whenever there is no MSHA
     folks around to peer in their door, that they didn't follow
     those parameters very well, and that great plan that we want
     to get to, Ron, which we agree with, that you need good plan
     verification, was out the window, wouldn't put up line
     curtains, you know, didn't install the controls and did not
     protect these miners.
              And if you'll read the story, you'll find out that
     miners in a lot of these mines are working in economically
     depressed areas where in their own mind, "that's the only
     job I can get," you know, "I've got to go along with the
     program here or you know, I'm not going to have any
     employment," and there is a fear of miners to speak out
     because of that about the conditions they're in.
              And as I pondered this in the last several years,
     how is it that we protect those miners?  And, when I asked
     the question about the six samples, I think the six samples
     aren't enough there.
              I think probably a hundred samples or times are
     not enough.
              And, there needs to be something else done that
     replaces that MSHA inspector at that coal mine when that
     MSHA inspector is not there to help protect those miners who
     lack a voice, if you believe what you read here, and is
     hostage to these dust conditions.
              And, that's where you get to this whole thing of
     bolting down your continuous monitor to the darn machine,
     that they can't drag back to the dinner hole, to try to
     design it in a way that it's tamper proof, that has some
     recording of the dust levels for those miners.
              At the end of the day, unless you want to send all
     your inspectors to these mines that's discussed here, I
     don't think that's going to help those miners.  Maybe, you
     know, on some days you will.
              The plans they have, I think continuous mining
     plans, I think we all know those are fairly well figured
     out, been figured out for years.
              But when you don't employ them, the miners are
     stuck in the dust and it's a serious problem.
              And, we would all hope that the miners would speak
     up for themselves and say, "hey, we can't let this happen."
     But we also know just the immense intimidation that has
     taken place at a lot of mines throughout this country and
     some of the tactics that some of these mine operators went
     through to cheat the system, exposing those miners to
     unhealthy coal dust, who at the end of the day in the State
     of Kentucky can't get black lung compensation, I think it's
     maybe up to two or three to get approved for full time
     disability now.
              On the federal level when they apply for black
     lung disability, at best it's seven percent of those who
     apply under the current rules are approvved for disability
     payments.
              So these poor miners to put it bluntly, are
     screwed both ways.  They've got to eat the dust for fear of
     losing their job.  And at the end of the day, they get no
     compensation for the disability that they have encountered.
     And, I think that is very sad.
              And, I think that the standards that is proposed
     do not in any measurable way take care of that problem.  If
     they ain't going to follow the plan, the best one we do, and
     if we're only infrequently around these mines, what is
     there?  How do we fix that problem?  And, I think that is
     the question that the panel really needs to wrestle with.
     It is my personal opinion after everything I've read the
     worst exposure of miners in this country, the high dust
     levels is the mines described in this article.  And if you
     don't aim something at that, then I think you're missing a
     big mark.
              Now one thing that we were very upset about, which
     again relying on the government to carry out its
     responsibility, there is the provision for mine operators
     who engage in criminal conduct to be punished that way.
              And, I don't believe in having to stand around and
     put everybody in jail.  I don't believe in that.
              But, I do believe that those who go out and engage
     in outlawish practices, intentionally exposing miners to
     unhealthy coal dust while they keep the mines running should
     be treated as criminals when they do that and have miners
     there breathing unhealthy levels of coal dust.
              MR. NICHOLS:  You're not saying we don't do that,
     are you?
              MR. MAIN:  I am saying on all counts, I have been
     told by the agency that that's not an important issue.
     There's an article in here by the chief of MSHA that, you
     know, that pretty well reflects that.
              I do know I've looked at the numbers, Marvin, and
     I've seen the numbers of criminal cases.  And we do have
     that information coming, by the way.  We still as of this
     morning haven't received the FOIA on the update.
              But, I know the numbers of those has dropped off
     dramatically.  I know there's a criminal prosecution wing
     that was eliminated.
              And, I can only say what I have heard directly
     from the agency, that this is not that important.
              And, I think you was in a meeting when there was
     an expression with officials of the mine workers and the
     union along that very lines, that there was a lack of
     confidence in using the criminal tools because it takes
     years to prosecute.  Okay?
              MR. NICHOLS:  I don't recall exactly the meeting,
     but these special investigators work for me, and I can tell
     you that all of those folks who testified in that series of
     Courier Journal articles were followed up on.
              And, there is no backing off of criminal
     prosecutions on the part of Coal Mine Safety and Health.  I
     can tell you that.
              MR. MAIN:  I'm just saying that by the statements
     of the agency itself, one of which is contained in this
     document, and one in the meeting that I was in, it was very
     clear to me that the agency did not believe that was a tool
     that should be used to deal with cleaning up the dust
     program.  That's the clear impression I had been left with
     by the statements that have been made.  And, I had looked at
     the numbers that reflect a major decrease which means one of
     two things, that things have gotten a lot better, or we've
     quit looking as hard.
              MR. NICHOLS:  Well, I think what you've seen was a
     period of time there where we prosecuted a lot of
     independent dust samplers.  We had this big chunk back with
     the all white cinders case.  And then, it leveled out.
              I think you had mentioned in Morgantown, if I
     recall, a hundred fifty prosecutions, and the number is
     greater than that.  I don't remember what it is, but it's
     more than that.
              MR. MAIN:  Most of those ended, I think -- we'll
     have those records -- but most of the cases ended somewhere
     around '94/95 and it started getting down to about one or
     two cases, Marvin, and I'll let the record reflect
     whatever's in the document that you gave us.
              MR. NICHOLS:  But, I believe I'm right on this.
     And  in fact, a lot of those were the dust samplers at that
     time.  So.
              MR. MAIN:  There is an article in here which I
     will have at the next hearing.  I'm not going to waste much
     time, but it's a statement of the Assistant Secretary on the
     criminal stuff.
              I think what happened when those messages did go
     out, Marvin, it left the impression with a lot of us and
     probably a lot in the industry that that was a tool that the
     agency had pretty well put back in its pocket and now, you
     know, whatever happened happened.  But, I think the
     impressions out there was fairly clear on those activities.
              And, I think that for the agency to pull that chip
     off of the table, or leaving the inference that it did left
     a lot of operators in less of a need to be more concerned
     about fixing this problem today.  I think that was a very
     concerning action of the agency, and I think the agency
     supported that at the time.  And, you don't treat everybody
     like criminals.  I'm not suggesting that at all.  But the
     ones that do go out there and, you know, create false
     samples by doing them in the basements in their offices and
     doing these dastardly things to allow the kinds of
     conditions that existed in that article, which I believe is
     about half of that story, that is a serious problem that
     needs the kind of enforcement tools that Congress put in the
     Act to deal with that.
              The continuous monitor -- and, I'm going to move
     as fast as I can -- there's a lot of documentation on
     continuous monitoring and I just wanted to bring this all
     into the record, and try to bring it into perspective.
              And having heard so many things from the
     government, I'm going to have to go back and read, is that
     what they actually said.  And, I think it is.  It is in the
     documentation.
              On April the 8th, 1980, MSHA published a final
     rule.  And I guess I mentioned this, but I didn't submit
     this actual document into the record, and I will today.
              And, it will be called CM Number 1.  And in the
     rule, the commentary on that rule, after hearing pleas from
     miners about building a continuous dust monitor, the agency
     says that several commenters suggested that respirable dust
     sampling under this rule be done with sampling devices that
     can be mounted on mining machinery, give a continuous read
     out of dust concentrations.
              Commenters recognize that unlike the current
     approved sampling devices such as the MSA Model G or C115
     and so on, you know, devices, further technological
     developments is necessary before continuous read out devices
     can be reliably used to monitor dust in the mines.
              However, MSHA believes that every effort should be
     made to advance sampling technology, and has embarked on an
     intensive program to develop a reliable machine mounted
     continuous dust monitor.
              Prototypes have been developed and are currently
     being tested in several mines.  In addition, the Bureau of
     Mines is pursuing research in this area.
              Now, that was a statement that the government made
     in a commitment they made to miners on April 8th, 1980 that
     was in response to miners' demands for continuous monitors
     being in coal mines.  And, this is the year 2000, some
     twenty years later, a little over twenty years later.
              Also on April 17th, 1991 after there was a major
     announcement of dust fraud again, this recurring again as we
     all know in the coal mining industry because it has been a
     real problem; there has been dust problems since we started
     the sampling.
              On April the 17th, the Secretary of Labor in
     conjunction with MSHA issued a press release.  April 17th,
     1991, and I will introduce that into the record later.  I
     picked up the wrong press statement when I put this package
     together in the wee hours of this morning.
              But what it did was it announced that the
     government was forming a task force.  Three of the primary
     objectives in that task force was basically to look at the
     MSHA take over, increased miner participation in the
     sampling program and, let's get this continuous dust monitor
     built.
              And miners hearing the government and reading this
     in the press says, "they're going to do it for us again,"
     because it's a commitment of the government to move this
     technology forward.
              The task force issued this report, which is
     document number three, CM3.  And when they issued their
     report, the task force -- this is from page fifty-one -- the
     task force recommends the following actions to achieve the
     goal of the continuous monitoring of the mine environment,
     and a celebrated research program to evaluate existing state
     of the art technologies and potential for use, and
     development of a fixed site underground mine dust monitor.
     Applicable technologies to be considered are light scanning
     and the different technologies available at that time.
              The ultimate goal is to have an instrument that
     can be used as a fixed site monitor that will provide
     continuous information to the miner, the mine operator and
     the status of dust resulting from the mining process, as
     well as information on the status of compliance with respect
     to the applicable respirable dust standard, and goes on.
     But, I think you get the gist.
              And this was again -- and, this went to all the
     miners.  When this thing came out, I sent it to them and
     again, we highlighted, hey, we didn't get what we wanted
     here, but you know, the government again is going to deal
     with this, this is a commitment by the government.  It
     wasn't Joe Main's commitment.  It was a commitment by Bill
     Pattersaw, probably, at the time.
              Then we get to the DAC, the Dust Advisory
     Committee, and they dealt extensively with the issue of
     continuous dust monitors, as well.  And as a result, they
     issued some different recommendations.
              Well, I'll just point you to one, which is
     recommendation number eight, which is that once technology
     for continuous dust monitors has been verified, these
     monitors should be brought on line in conjunction with other
     dust sampling methods for the surveillance and determination
     of dust controls in all MMUs and other locations of high
     risk or elevated dust exposure.
              Once verified as reliable, MSHA should use
     continuous dust measuring data for assisting operator
     compliance efforts in controlling miners' exposure, and
     should consider use of continuous dust monitors directly in
     compliance.
              These again was recommendations of the federally
     constituted Advisory Committee and again, you know, let's
     get this thing done.  There's some discussion on research in
     here to get it developed, and get this thing in the mines.
              So again, there is another document, which is
     already in the record.  I make reference to this
     recommendation number eight on the issue of continuous dust
     monitors.
              On February the 2nd, 1999, there was a letter sent
     to J. Davitt McAteer, the head of MSHA, and Linda
     Rosenstock, the Director of NIOSH, outlining our concerns
     about the finalization of the development of the machine
     mounted continuous dust monitor.
              And things sort of had gotten a little haywire,
     which the letter speaks for itself, confusion, I guess, with
     the departments, between MSHA and NIOSH at the time of their
     testing and the protocol and those kind of things.
              But, we were on record again outlining some
     historical background to the whole continuous dust monitor,
     why miners needed it, and it's very important to miners, and
     the urgency to get this process finalized.  That's the
     letter dated February 22nd, 1999.  That's Exhibit Number 6.
              Exhibit Number 7 is the letter that was sent on
     February 15th, 1999 from the principals of the BCOA, UMWA
     Health and Safety Committee, Joe LaMonica from the BCOA and
     Joseph Main from the UMWA.
              And, this letter represents a position of the
     parties to give the government three different monitoring
     devices.  One was a continuous machine mounted monitor.
              The second one had to do with the type of dust
     monitor that we wanted for miners which we call the PDM1,
     and also the PDM2 which is a monitor that MSHA had wished to
     get developed.
              But, I think the letter pretty well lays out the
     interest of the parties to get the final developments
     completed of the machine mounted monitor, and also state the
     claim that one miner did yesterday with all the utensils we
     put on him, about building a worker friendly monitor, not
     these things that further bog miners into the mud because of
     the weight, and obstruct their ability to work.  And so,
     there's a recommendation strongly for the development of the
     PDM1 model, the worker friendly model, which is encased in
     the battery, and the finalization of the continuous dust
     monitor.
              On September the 15th, there was a response back
     from -- I'm sorry, this is the same letter to Rosenstock.
     The first one was to McAteer, the second one to Rosenstock,
     by Joe LaMonica and Joe Main, and that is UMWA Number 8.
              On October 22nd, 1999, there was a response back
     from NIOSH with regard to the development of the continuous
     machine mounted dust monitor.
              And the excerpt from this letter which I'll read
     and I'll put the whole letter into the record -- regarding
     work on the machine mounted continuous respirable dust
     monitor, NIOSH believes that the device that measures
     respirable dust in a mine environment with a variability
     comparable to the current approved sampling device.  At this
     time, we also feel the device has demonstrated sufficient
     measurement success to warrant commercial development, which
     would be aimed at solving mechanical and system problems
     that causes it to operate unreliably.
              Now the last part of that is dealing with the
     harming of the unit we had some discussion on in February of
     1999 with the National Mining Association, the United Mine
     Workers, the BCOA, MSHA, NIOSH and the manufacturer
          of the unit itself, where it was discussed, we
     believe, that this unit could be finalized by fixing the
     vibration problems that were associated with the pounding of
     the equipment where the device is on the equipment.
              And there was an agreement made as we finalized
     that meeting to pursue a contract.
              That for whatever reason, vanished some time after
     that meeting was over, which we only worried about, whatever
     the official told us, until we started to again started to
     pursue this.
              The bottom line was, I think NIOSH was quoted on
     record as saying we're there, let's just get it commercially
     built, let's fix these things that we all recognized for the
     final leg, what I believed was finalizing the development of
     the continuous dust monitor.
              Exhibit Number 10 is a letter from J. Davitt
     McAteer to myself and to Joe LaMonica, and in that letter
     what it says is although the group testing the machine
     mounted continuous dust monitor has tested it, it is not yet
     ready for commercial deployment, which represents a
     different view between NIOSH and MSHA there, which I think
     can be sorted out.
              The National Institute of Occupational Health and
     Safety has informed us that there were possible benefits
     derived from this research project.  The current model
     demonstrated a feasible technology exists for a continuous
     real time dust measurement.
              Further, the device was as accurate as the current
     measuring system, and was used by miners and supervisors to
     gage changes in dust levels and in testing engineering
     controls.  In addition, the testing revealed the
     shortcomings and irregularities of the unit and provided
     valuable insight concerning ways to construct a commercially
     reliable unit.
              In that meeting, we discussed what those were,
     that the screws needed to be better screws and better lock
     washers and those kinds of things, to harden this unit.
     That's the official position of the agency in November and
     October of 1999.
              On May 16th -- this is Document Number 11 -- on
     May 16th, a letter was forwarded to Linda Rosenstock, who is
     the Director of NIOSH from myself, that lays out our concern
     with the stopping of the development of the machine mounted
     continuous dust monitor, and raising the question of why did
     this happen, who made these decisions, how did the
     government agency walk out of the meeting leading all of us
     to believe that this thing was going to be finalized, and
     zip, we find out other things have occurred, and the
     government had actually just shut down the contract on the
     final leg of the development, which was very upsetting to
     the union and miners who were to rely on this continuous
     dust monitor.
              This letter also raised the issue of the personal
     samplers.  And in regard to one of the questions that was
     raised, and the answer, about personal samplers, I think
     this letter will provide some further guidance to the agency
     on where miners and the Mine Workers are at.
              We had an opportunity to take prototypes of both
     the PDM1, which is the worker friendly unit, and the PDM2,
     which is the pop can, and I think Ron, you used that Coke
     can at one time and I think that's a good characterization
     of that, hanging off your lapel, with a separate battery, to
     our convention in Las Vegas this past spring.  And, I had
     those modelled by two different individuals.  I had an
     expert from NIOSH that was there that understood the
     technicalities of those.  But, we explained what both those
     could do.
              And the question I had from the miners was, "why
     are they wasting all their time on this PDM2 unit; we want
     the PDM1, we're getting tired of you guys treating us like
     mules," you know, those are the kind of responses that we
     had.  And, it was a pretty straight forward position from
     the miners and a pretty straight forward position from the
     Mine Workers, as well, that that's the kind of worker
     friendly type devices we need to be spending government
     money on building.
              Unfortunately, we had a meeting in March where the
     parties were all present and we were asked with industry and
     labor to tell us what you want us to do, because we're only
     going to build one of these, as far as expending government
     monies.  We did that.
              And in that meeting, we made it quite clear to the
     government we wanted the PDM1 type model built.  We wanted
     something that was worker friendly.
              And by the way, these devices would allow the
     miner to determine themselves how much dust they were in
     over a recent period or a long period of time, and we could
     package this, if what we were told was true, which there was
     a lot of support that it was, that miners could wear this
     even with a smaller battery that what they have.  The only
     thing they would notice is the hose coming up, depending
     where we located it, on the lapel or at the cap light.
              And unfortunately again after we walked out of
     that meeting in March, the government made a decision to
     shut down the development of the PDM1, switched that over to
     the PDM2, and that's where all the money went.
              So we had a series of meetings which is explained
     in this document that has tried to reign in this total
     confusion and really again, get back to listening to miners.
              I can tell you unequivocally that every miner who
     has looked at both of those has said, "what are we doing
     with the PDM2?  Give us the PDM1."
              And if we ever get there, that adds another
     feature to empowering coal miners like we've never had
     before in this country, where we could package those in and
     put a lot of miners who are in high risk and sample them
     every day, record the information and utilize the data.
     And, the miners would have data like they've never seen
     before.  We support that use.
              We've told the industry, which we've had
     discussions on, if that thing works effectively, to
     accurately record the dust data, we expect it to be used as
     a compliance tool, along with the monitoring tool that the
     miner will have at their side.
              At the risk of -- twenty some years ago when I got
     into this game about continuous monitors or machine mounted
     monitors, I would never ask the government to hold up a rule
     until we get this thing fixed.
              And, I think you can appreciate that, given where
     we've went for twenty some years, trying to get a machine
     mounted monitor.
              We're hopeful that we can get the PDM1 built.  We
     have asked NIOSH to take control of that and get it done,
     and we hope that we have one day that device to give the
     miners where we don't have.
              All we need, it's my firm belief, is the
     regulation to force into mines continuous dust monitors.
              If anybody here thinks that mine operators are
     going to do this on their own, continuous machine mounted
     monitors, I think they're living in a different world.
              We rely on the government to come forth with a
     regulation.  And I think having said everything that's in
     the record, there has been so many promises and insinuations
     and public press statements saying about we're getting these
     things for miners, and we're sitting here in the year 2000,
     I don't think anybody should be surprised that the Mine
     Workers are saying, "what the heck are we doing here," and
     why did we on the edge of getting this thing finalized into
     the mines, did we stop?
              And, I think that's the question that the
     government has some accountability to miners.  Why did we
     stop that when we was on the edge, after coming out of the
     meeting and clearing the air with all the parties there and
     saying this could be done?
              And now, it's not done.
              And when I read the proposed rule, yes, I was very
     disappointed on behalf of miners that need it.
              And those miners that we talked about with no
     miners' reps, those poor miners that need something like
     that desperately lost out the biggest because there is no
     ability for MSHA to get around to every shift, to keep those
     operators that want to act like an outlaw contained.
              Document Number 12 is a document that was placed
     in the record of the court proceedings, which is the
     presentation that was made by NIOSH at -- and, I serve on
     the Fellow Advisory Committee now that deals with Mine
     Health and Safety under NIOSH which is another one of the
     hats I wear here part of the time -- and at one of the
     presentations in January, 2000, there's an update provided,
     which is verified by both MSHA and NIOSH, is their position
     which was recovered in E-Mail that addresses that.
              And, what it says is that the continuous monitor
     provided a continuous full time measurement in underground
     coal mines, its ability to measure coal mine dust in the
     coal mine environment has been demonstrated, it has ben
     tested in five mines.  In one mine, sampling was done for
     forty-one shifts, all others less than twenty shifts, and it
     goes on with some other details about the continuous
     monitor.
              But you know, anybody that would read this would
     say, hey, we're ready to put these in the mines, you know,
     let's get the thing finalized, let's get it commercially in
     there and get it done.  That's task  force -- or, Exhibit
     Number 12.  There's a lot more in the record on continuous
     dust monitors.
              But I think for those who are shocked or amazed
     that the Mine Workers are, "my god, how could you be upset
     with our rule," that's why we are.  And, I think there's
     legitimate reasons for all the miners to be upset, that this
     rule that this rule axes the continuous dust monitor
     requirement.
              Let's kick into another subject here, and I'm
     going to try to close this up as quick as I can.  Miner
     representation has been an issue on the minds of miners for
     many, many years, talked about during the hearings back in
     '78.  MSHA again closes the record, "we're going to make
     these changes."  And there were some things that happened
     back then, too, there were some promises made of doing more.
              As the system was changed, we all know that there
     was mass sampling of coal miners that was reduced down to
     designated occupations and designated areas.
              There was miners that came to those hearings that
     wanted MSHA take over, continuous dust monitors and miner
     participation to help fix it.
              They made a promise on the continuous monitors, to
     engage in the development of those on April the 8th, the day
     they issued the rule.
              But, they also did something else.  April 8th,
     1980, MSHA issued a proposed rule giving miners the right to
     participation in the entire dust sampling program.  And of
     course, this is the one that was conducted by the operators.
              MSHA thought then that there was legal authority
     to put something like that in the rule, and they did, and
     the outline, at least in that setting, what was needed to
     help assure credibility in the program by giving miners
     representation that they'd asked for.
              And, I am introducing that into the record because
     that is the rule proposed on April 8th, 1980, and there's a
     lot of commentary that the committee should read, as well.
     I do encourage you to read all this because it's an
     important part of the history on the evolvement of miner
     participation.
              Then for some reason on Monday, April 29th, 1985,
     MSHA pulled the rule, didn't act on the issue of a final
     regulation, and they pulled it.
              And basically what they said was compliance with
     the revised program has improved, resulting in greater
     confidence in the overall program.  As a result, the miners'
     rep rule was pulled.
              It again arose in the debates over the dust fraud
     in 1991.  Here is a copy of the press statement by Lynn
     Martin that I referred to earlier incorrectly.  That was
     issued on April 17th, 1991.
              And in that statement -- and, this is on the heels
     of three Congressional hearings that took place, public
     attention about dust fraud again, "we need to do something
     to clean up this God awful program -- and, Martin has
     indicated that Bill Pattersaw, the Secretary of Labor for
     Mine Health and Safety, will study other options to improve
     the mandatory monitoring of respirable mine dust.  Among the
     three options or among the options we studied, here are the
     three that was listed:  Expand the role of the individual
     miner in the operator sampling program, review the
     feasibility of all sampling to be conducted by MSHA and work
     with the Bureau of Mines and the National Institute of
     Occupational Health, NIOSH, on improving technology to
     continuously monitor the mine environment, reducing or
     eliminating the need for periodic samples.
              Now that was again, a promise made to the public
     in response to criticisms by miners, miners' representatives
     and several others, that there was serious problems with the
     dust sampling program.
              Unfortunately as we know, when the task force
     finished their report, they sort of said again there's
     enough involvement here, with some modification and changes.
              But, the heat was off in '92, and so those issues
     died, only to be resurrected again as we talked about,
     Marvin, when all the criminal cases started hitting the
     press, and this was in '93, '94, '95 when there was a lot of
     activity.
              And, we had a new Secretary of Labor.  We had a
     new government.  And, there was an interest on the part of
     this government to go back and reform this whole program
     that has been so messed up for so many years.
              And that Secretary of Labor appointed under the
     Mine Act, chartered officially an Advisory Committee to go
     out, develop recommended standards, deliver them back to the
     agency for them to work off to issue rules.
              That was a function which I was directed to do.
              I served on the Advisory Committee and we took our
     work seriously.  And, we did provide a package which we
     talked about quite a bit that encompasses all the things on
     the table right now.
              And the Advisory Committee, they dealt with
     miners' representation, miners' rights extensively, a lot of
     discussions, as Tom pointed out today, and throughout the
     record.  And, I would encourage you all to go back and read
     it so you'll have a good, clear understanding of how that
     was developed and what it meant.
              But, let me read to you some recommendations that
     are in the record.
              Recommendation number six, during this
     verification visit, miners and their representatives should
     have the same pay, 103(f) walk around rights, as they do
     under MSHA inspections.  And, that's regarding the plan
     verification process, which we understand what you're doing
     in your policy, but it doesn't transcend over into the
     regulation.
              It also said in recommendation nineteen, that
     miner participation in the interim operator sampling program
     should be increased to provide assurances that a credible
     and effective dust sampling program be in place.
              To that end, miners in each mine should select
     designated representatives who are employed at the mine for
     compliance sampling.
              Miners designated as representatives of the miners
     should be afforded the opportunity to participate in all
     aspects of the respirable dust sampling for compliance at
     the mine.
              The participation would include protection against
     loss of pay, as provided under Section 103(f) of the Mine
     Act.
              (B) Miners representatives should have the right
     to participate in dust sampling activities that would be
     carried out by the employer for verification of dust plans,
     dust control plans at no loss of pay.
              And, this is tied in with the intention of the
     Advisory Committee that the mine operator still be required
     to do dust sampling for plan verification purposes.
              The miners' representatives also have the 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 a loss
     of pay.
              And, miners' representatives should receive
     training and certification to conduct respirable dust
     sampling paid by the operator.
              Miners' representatives should be afforded the
     opportunity without loss of pay for the mine operator to
     participate in the training of miners.
              I mean, there's pretty sweeping recommendations.
              Now I go back to the law hasn't changed.  There's
     a belief on April 8th, 1980 that there's legal authority to
     extend these rights to varied kinds of activities of which
     were carried out by the operator.
              And when we saw the proposed rule that came on
     July 7th, this is not there.
              And what we have is a statement in the preamble
     that you've got your walk around rights we passed in '77.
              This new plan verification will be by policy.  The
     expectation --
              MR. NICHOLS:  They're there, Joe.  We can discuss
     whether they're in the right place.  But, they're in the
     rule as we see the rule.
              MR. MAIN:  They're not in the rule as -- I mean,
     we disagree with that.
              They're in the policy preamble that exists with
     regard -- these right here I described, if they're in the
     rule, show me, the ones I just described in recommendation
     number nineteen.
              They're not in the rule.  They're not even in the
     preamble, discussed, Marvin, that's my point.  Okay?
              By the time we get to Salt Lake City, if you can
     show me where these ones that I just referenced in
     recommendation number nineteen are in the rule or in the
     program policy even, with the exception of the plan
     verification sampling -- I understand it's in the rule --
              MR. REYNOLDS:  The reason they didn't track along
     recommendation nineteen is that the Advisory Committee
     envisioned the operator doing the verification sampling, and
     then MSHA coming along afterwards.
              But the way that we were able to do the proposal
     was that MSHA's doing all of the verification sampling.
              MR. MAIN:  And I understand that's -- and that's
     our perspective of the law, and I appreciate why, if you
     don't have the operator sampling, you wouldn't have that
     piece.
              MR. REYNOLDS:  At the time of the Advisory
     Committee, the agency didn't think they would be able to do
     the verification sampling.  So that's why it's a little bit
     different than the tracking in the recommendation.
              MR. MAIN:  Okay.
              MR. REYNOLDS:  You understand what I'm saying?
              MR. MAIN:  Okay.  So set aside the operator
     verification sampling.  There's provisions in here that we
     have miners' trained and certified in dust sampling, which
     is really important if they're going to understand it, paid
     by the operator.
              I understand we have no continuous monitors, that
     isn't absent.
              But training miners, you know, being trained on
     the health and safety, you know, I think those were
     recommendations that are not anywhere to be found.
              If you would, and if you can between now and Salt
     Lake City, take a look at recommendation number nineteen and
     show me where they were specifically addressed one way or
     the other.  Okay?  I would appreciate that, because if we're
     missing something, we do want to know.
              The bottom line on all of this is -- and, I just
     picked out quick things.  There's so much more record.  I
     could go back to the '77 testimony which we'll be doing for
     the full record, anyway.
              As a matter of fact, let me just make that a
     matter of the record now.  The complete testimony of miners
     at the public hearings in 1977 and '78 on the revision of
     the respirable dust program, I think is very relevant yet
     today.  I think the same issues are relevant today.  And, we
     would urge that those be, or ask that those be placed in the
     record as part of the official record making on this rule.
              And, there's only so much time I want to take up.
     But, I think it's so important that this committee
     understand the historical structure.
              And again, would you be surprised that the Mine
     Workers and miners who have pursued these all these years to
     see a rule on July the 7th that didn't contain many of those
     parts?  I think not.  I mean if you are surprised, you
     shouldn't be.
              In regard to the UMWA lawsuit we had filed on
     January 13th, 2000, there was clear components in that
     lawsuit that has been addressed throughout this historical
     record, that was addressed by the Advisory Committee, that
     again there was no rules to implement those, with the
     exception of the single sample rule, which deals with
     abatement sampling, and plan verification as it ties into
     full shift sampling.
              Other than that, we believe that rightfully or
     wrongfully, the agency threw in following that lawsuit
     discussion in the preamble, and chose to make that their
     method of addressing the issues that miners and Mine Workers
     have spent an eternity trying to gain.
              MR. REYNOLDS:  I just wanted to clarify.  Earlier
     you said that you would like MSHA, you want us to repropose
     the rule, basically.  What we're hearing is go back to the
     drawing board.
              I just wanted to ask you, there are two proposals
     here.  Single sample and plan verification are distinct
     proposals.  They're distinct in the Federal Register.
              And I just wanted to ask you -- and, all of your
     comments have been regarding PAPRs and continuous
     monitoring, 103(f) and the number of samples under the MSHA
     program -- none of those really have anything to do with
     single sample.  Are you asking the agency to repropose the
     single sample rule?
              MR. MAIN:  I think my first exercise here is to
     get some clarifications.  And after listening to a lot of
     the discussion over the last three hearing days, it's made
     it clear that the difficulties in the single sample rule are
     mostly contained in the plan verification sampling rule,
     along those same lines -- and, we're going to rethink this
     more -- but along the same lines, it appears that those
     demands may not include to go back to the drawing board,
     going back to the drawing board on the single sample rule,
     since we have a little bit clearer vision of how that's
     going to work.  But the components that are most troubling
     are contained in the --
              MR. REYNOLDS:  Okay, because the proposal is
     really the same as the '98 notice.  We're just trying to
     cure the procedural defects that the 11th Circuit found.  I
     just wanted to clarify that it really isn't any different
     from the '98 notice.
              MR. MAIN:  Yeah, but you've got to read three
     hundred pages of preamble to figure out what the heck you
     guys are saying and figure out what that all means.
              But I think as it stands today, I think if we
     understand what that first conversation was, that really the
     ninety-five percent issue has no bearing on -- with the
     exception of defining what the standard will be in Part 70,
     in that if you change the Part 70 standard to one point
     five, you know, it would come out somewhere around one point
     eight, just theoretically.  Okay?
              So the problem that we could fix would be in Part
     70, and we really wouldn't have to fix the ninety-five
     percent problem.  Does that make sense?
              I think, you know, with trying to think through
     where we're at, the real problem is without question as we
     see it now, in the whole package, separate from the single
     sample rule.
              But, we want to think through that a little bit
     more.  That's the reason I was asking questions on that.  I
     think you see where we're heading, right now, anyway.
              And in closing, I know everybody's been here long
     -- I hate to eat up so much mike time -- but my fear is that
     if this information doesn't get on the record and doesn't
     get plowed through, that it will not be part of the clear
     thinking that takes place on any final action.
              As stated earlier through the miners and I've read
     in the paper and I've heard at the hearings, there's a clear
     message to go back and fix this.
              The sampling is far too infrequent for miners.  We
     don't need to be jacking up dust levels.  We need to be
     bringing them down.
              I think there is a clear inconsistency in
     publishing your notice in April -- whatever the date was --
     calling for lowering the dust standard, and three months
     later, issuing a rule that does increase it.  We have a
     debate over that.  But by just looking at the numbers, as
     one guy said, one and one is two.
              Two point three three is an increase in the actual
     standard that we're talking about, even though we agree that
     the averaging out -- you know, getting rid of the averages,
     we agree.  You know?
              Let's get it fair, get it done.  It's what we
     should have been doing for years.
              But at the same time, let's follow the
     recommendations of the Advisory Committee.  Let's follow the
     instincts of the agency here that was laid out in April.
              Let's follow the instincts of NIOSH and drop that
     thing down where we can accomplish, you know, having a true
     two milligram that I think was envisioned by Congress, a one
     milligram that was envisioned and take it as low as we can.
              And in closing on behalf of the nation's miners, I
     appreciate the opportunity to be here and provide all this
     information to this panel.  It's the umpteenth time I've
     done this exercise in my life, but this is it.
              My firm belief is whatever comes out of this
     process, and that's what I'm telling miners, that it took us
     twenty years to get here and if anybody expects another
     reform to this package in their current lifetime, look at
     history and make their own judgements.
              And, we ask you to take it back, redo it.  You've
     done it before, the practice the agency has engaged in.  We
     hate to have to do that.  But, I think this rule has put us
     in no other position than to take that position.  Thank you
     very much.
              MR. NICHOLS:  Thank you.  I want to say two
     things:  One is I just want to re-emphasize again that this
     agency has a strong criminal program.
              With continuous monitoring, that's where everybody
     wants to be.  As Joe has mentioned, there's a long history.
     I don't want anybody to think that MSHA has not done a lot
     of work trying to develop this technology.  If you didn't
     hear what Paul talked about this morning, we can get him to
     repeat it.
              MR. HEWETT:  I would like to say something.  Yeah,
     Joe, I'd like to speak to the single sample notice which was
     alluded to earlier.
              These are two separate notices.  With the single
     sample notice, the first notice, there the two agencies,
     MSHA and NIOSH, are looking at the coal mine dust sampling
     unit very narrowly focusing on the accuracy of the unit to
     measure exposure over a single shift, because we were put in
     a position by the '69 Act, and again by the '77 Amendments
     Act to determine method accuracy.
              There was this interim phased in approach to
     lowering exposures in coal mines, as described in the '69
     Act, with the provision that citations -- or, an average
     exposure would be defined over a single shift, provided the
     method was reasonably accurate.
              So in the single sample notice, we're very
     narrowly trying to determine whether or not the coal mine
     dust sampling unit is accurate using the NIOSH accuracy
     criteria which has been in existence for over twenty-five
     years.  And that, I thought we did very successfully.
              And we encourage you, as you were encouraged
     earlier, to separate the two notices and promote, or
     encourage adoption of one notice or you know, do the single
     sample notice, if you have no objection to that.
              We do want to point out that we're looking at
     method accuracy, not determining citation threshold guides
     or anything like that in the first notice.
              MR. MAIN:  And, I like I say we're looking at that
     along those lines.  I think we'll have a more clear position
     in Salt Lake City.
              But at least what we have learned through this
     whole process, it seems like there is that clean break that
     does not hamstring at least the concerns we have to the one
     paragraph single sample rule.
              MR. TOMB:  Hey, Joe, I'd also like to sort of get
     on the record to sort of emphasize what Marvin pointed out
     with respect to the continuous monitor.
              You know Davitt McAteer has been very supportive
     since he's been our leader in getting a continuous monitor,
     and even the continuous personal monitor.  As a matter of
     fact, the agency has put over almost two million dollars
     into that program itself.
              I think that I've been involved with that program
     for some time, and I can attest to the fact that we've had
     less than a lot of support in getting that unit tested in
     mines.
              We had to go to non union mines to actually do
     those tests in those mines that you talked about in that one
     memo.
              In order to get a continuous monitor of any kind
     into the mine takes a concentrated effort of both the
     agency, the industry and the miners themselves.
              Being that in program, the agency has not had that
     support.  And, that support has to come around to get
     continuous monitors.
              The other thing is you mentioned the PDM1 and the
     PDM2.  The agency took the option of going with the PDM2
     because that was a device that can be delivered in
     September, as opposed to taking the PDM1 which wouldn't be
     delivered until next year if that project changed.
              So I just want to emphasize that the agency is
     working diligently to come up with new monitoring
     technology, putting a lot of its own resources into that
     when research funds should be going into that.
              MR. MAIN:  I'm not going to get into a debate
     here.  You and I have been on this project for quite some
     time.
              And you know, you do a lot of testing at non union
     mines, and this is no different than -- and, union mines.
              But, there have been difficulties and we have
     personally went in to provide assistance to get those, get
     to the mines where we represent the workers.
              But, I think that from my view standing back
     watching this whole thing, there was personalities that
     unfortunately got in the middle of this, and confusion that
     lead to a lot of the disruption.
              And, I think that the record is quite clear when
     we have the industry and labor saying, "we want this thing
     finalized," you know.
              MR. TOMB:  Yeah, but you didn't discuss that
     confusion when you entered your documents into the record.
              MR. MAIN:  Well the confusion, if you want me to
     get into that from my standpoint, I will.  It won't be
     pleasant for a lot of people.
              I know I had phone calls complaining about the
     mine operators not offering their mines.  I called up the
     operator.  This was Consol.
              And apparently there was a dispute between MSHA
     and NIOSH over a protocol to be followed that wasn't
     followed.
              And until the government sits down and gets this
     thing sorted out, we're not going to do it.
              I sat down and took a look at it and unfortunately
     I had to agree, that we needed to come to terms with what we
     were doing.
              But let's, if you want to go there, I don't think
     you want to do that today.
              MR. NICHOLS:  Just one final thing:  I don't think
     that anybody can say -- you can argue with where we are on
     these rules -- but, I don't think that anybody can say that
     the current Assistant Secretary has not been focused on
     trying to finally eliminate black lung.
              We talked about the two million dollars we put in
     the x-ray program.  We just mentioned the two million we put
     into continuous monitoring.
              And, we have constantly worked on better
     enforcement programs to deal with dust over exposures,
     especially on longwalls.
              Now you can argue about the rules, but Davitt has
     done a lot to try to deal with this dust problem.
              MR. MAIN:  My arguments has been about the rules.
     And without getting into the Assistant Secretary or Marvin
     Nichols or Ron Schell, I'm just trying to lay out a set of
     facts here, and the set of facts with the continuous dust
     monitor.
              Somebody made that decision after they walked out
     of the room.  I don't know who it was.  I don't know why it
     was done.  I've heard conflicting stories about that.
              But the bottom line is that a lot of work that was
     on the verge of being implemented was stopped.  And, I think
     the miners ought to be upset about that.  And I think we
     should, too.
              It's not like trying to accuse somebody of doing
     something wrong.  It's like how do we get this thing back on
     track and get it into a rule, and that's our concern.
              MR. NICHOLS:  Well, you do have to make some
     different decisions as these things are falling apart.  I
     mean, that's the nature of the beast.
              It's pretty easy to say continuous monitoring is
     the answer.  And, I agree with that.  But, it ain't that
     easy to get it developed.
              MR. MAIN:  There's one last way that gets us
     there.  And I think we would all agree that if it's a
     regulation, then the operator has to meet it.
              And, that is about the strongest measure that you
     guys could undertake to get it in the mines.  And the
     declarations, it's on record where it's at, but I think
     that's what it's going to take to get it there, quite
     frankly.
              I don't think we're going to see manufacturers out
     developing something that they see no market for.  We've got
     into that problem with CSRs.
              I don't think the industry is going to go out
     there and put something in the mines they don't want to see
     you put there, to begin with.
              So here's the dilemma:  If the government won't
     come forward with the regulation, getting it done, the
     miners are never going to see it.
              I think it's that simple.
              MR. NICHOLS:  We'll give you the last word here,
     Joe.
              MR. MAIN:  Okay.  We'll see you in Salt Lake.
     Thank you.
              MR. NICHOLS:  Thanks, Everybody, for showing up.
              (Whereupon, the hearing in the above-entitled
     matter was closed at 2:02 p.m.)
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                             REPORTER'S CERTIFICATE
     DOCKET NO.:        --
     CASE TITLE:        Public Hearing - MSHA
     HEARING DATE:      August 11, 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 11, 2000
                         Debra Anderson
                        Official Reporter
                        Heritage Reporting Corporation
                        Suite 600
                        1220 L Street, N. W.
                        Washington, D. C.  20005-4018