UNITED STATES DEPARTMENT OF LABOR
     MINE SAFETY AND HEALTH ADMINISTRATION
     
     
     In the Matter of:                     )
                                           )
     30 CRF PART 72                        )
                                           )
     DETERMINATION OF CONCENTRATION OF     )
     RESPIRABLE COAL MINE DUST;            )
     PROPOSED RULE                         )
                                           )
     30 CFR PARTS 70, 75 AND 90            )
                                           )
     VERIFICATION OF UNDERGROUND COAL MINE )
     OPERATORS' DUST CONTROL PLANS AND     )
     COMPLIANCE SAMPLING FOR RESPIRABLE    )
     DUST; PROPOSED RULE                   )
     
     
                                   Alpine East Ballroom
                                   Hilton Salt Lake City Center
                                   255 South West Temple
                                   Salt Lake City, Utah
       
                                   Wednesday,
                                   August 16, 2000
     
               The public hearing convened, pursuant to the
     
     notice at 8:32 a.m.
     
     BEFORE:  
     
     MARVIN NICHOLS
     Administrator, Coal Mine Safety and Health
     
     RON SCHELL,
     Chief, Coal Health Division
     
     LARRY REYNOLDS,
     Office of the Solicitor
     
     LARRY GRAYSON, 
     NIOSH, Associate Director Mining Research
     
     PAUL HEWETT,
     NIOSH, Industrial Hygienist
     
     
     APPEARANCES:  (continued)
     
     CAROL JONES,
     MSHA, Director, Office of Standards, Regulations and
     Variances
     
     GEORGE NIEWIADOMSKI,
     Mine Safety and Health Specialist, Coal Mine Safety and
     Health
     
     THOMAS TOMB,
     Chief, Dust Division, Pittsburgh Safety and Health
     Technology Center
     
     JON KOGUT,
     Mathematical Statistician, Office of Program Policy
     Evaluation
     
     REBECCA ROPER,
     Senior Health Scientist, Office of Standards, Regulations
     and Variances
     
     RON FORD,
     Economist, Office of Standards, Regulations and Variances
     
     RODNEY BROWN,
     MSHA, Office of Information and Public Affairs
     
     PAM KING,
     MSHA, Office of Standards, Regulations and Variances
                                 C O N T E N T S
     
     STATEMENTS:                                            PAGE:
     
     OPENING STATEMENT OF MARVIN NICHOLS, ADMINISTRATOR,
     COAL MINE SAFETY AND HEALTH                                5
     
     JOE MAIN, UNITED MINE WORKERS OF AMERICA, 
     ADMINISTRATOR OF HEALTH AND SAFETY                        25
     
     BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH, 
     NATIONAL MINING ASSOCIATION                               67
     
     RANDY TATTON, ENERGY WEST MINING COMPANY                  90
     
     JIM STEVENSON, INTERNATIONAL UNDERGROUND SAFETY
     REPRESENTATIVE, UNITED MINE WORKERS OF AMERICA           100
     
     CAMRON MONTGOMERY, UNITED MINE WORKERS OF AMERICA        141
     
     TOM KLAUSING, UNITED MINE WORKERS OF AMERICA, 
     LOCAL 2161                                               161
     
     DWIGHT CAGLE, UNITED MINE WORKERS OF AMERICA, 
     LOCAL 2397                                               180
     
     TAIN CURTIS, UNITED MINE WORKERS OF AMERICA,
     LOCAL 1769                                               182
     
     JIM WEEKS, CERTIFIED INDUSTRIAL HYGIENIST, 
     CONSULTANT TO UNITED MINE WORKERS OF AMERICA             186
     
     DARYL DEWBERRY, UNITED MINE WORKERS OF AMERICA,
     INTERNATIONAL EXECUTIVE BOARD MEMBER, DISTRICT 20        239
     
     DAN SPINNIE, UNITED MINE WORKERS OF AMERICA, 
     LOCAL 2161                                               268
     
     BRAD ALLEN, UNITED MINE WORKERS OF AMERICA, 
     LOCAL 1984                                               277
     
     BRAD PEAY, UNITED MINE WORKERS OF AMERICA                282
     
     BOB LaBLEUW, UNITED MINE WORKERS OF AMERICA, 
     LOCAL 1984                                               287
     
     LARRY PASQULE, UNITED MINE WORKERS OF AMERICA, 
     DISTRICT 20, ALABAMA                                     288
     
     
     STATEMENTS:                                            PAGE:
     
     RANDY KLAUSING, UNITED MINE WORKERS OF AMERICA           292
     
     SCOTT BOYLEN, UNITED MINE WORKERS OF AMERICA, 
     SKYLINE MINE                                             311
     
     JOHN F. DE BUYS, JR., BURR & FORMAN LLP, 
     BIRMINGHAM, ALABAMA                                      323
                              P R O C E E D I N G S
               MR. NICHOLS:  Good morning.  My name is Marvin
     Nichols and I am MSHA Administrator for Coal Mine Safety and
     Health, and I will be the moderator for today's public
     hearings.  On behalf of Davit McAteer, Assistant Secretary
     for MSHA, and Dr. Linda Rosenstock, the Director of NIOSH,
     we want to welcome all of you here.
               This morning we will begin with the public
     hearings on two proposals which were published on July the
     7th in the Federal Register, the Joint Single Sample
     proposal and the Plan Verification proposal.  Your comments
     will be included in the record on both proposals.
               Let me introduce our panel.  To my left we have
     Ron Schell who is the Chief of the Health Division for Coal
     Mine Safety and Health, and to my right Larry Reynolds from
     the Office of the Solicitor.
               On the panel behind me we have Larry Grayson, Dr.
     Larry Grayson, Associate Director Mining Research with
     NIOSH; Carol Jones, the Director of MSHA's Office of
     Standards, Regulations and Variances; George Niewiadomski,
     Mine Safety and Health Specialist, Coal Mine Safety and
     Health; Thomas Tomb, Chief, Dust Division, Pittsburgh Safety
     and Health Technology Center; Jon Kogut, Mathematical
     Statistician, Office of Program Policy Evaluation; Rebecca
     Roper, Senior Health Scientist and Ron Ford, Economist, both
     from the Office of Standards, Regulations and Variances.
               Because the single sample rule is a joint
     MSHA/NIOSH proposal Paul Hewett, Industrial Hygienist, is
     here from NIOSH.  And Rodney Brown from MSHA's Office of
     Information and Public Affairs is also present at the
     hearing.  Rodney's standing back at the door there.  Rodney
     will be available with press kits for the media and will be
     available to answer any press inquiries.
               And we have Pam King from MSHA's Office of
     Standards, Regulations and Variances.  Pam greeted you when
     you came in.  If you've not yet signed in, please see Pam
     and do so.  Or if you wish to speak, sign on the speakers'
     list.
               Let me first mention about how the hearing will be
     conducted.  The formal rules of evidence do not apply at
     these hearings and they are conducted in an informal manner. 
     those of you who have notified MSHA in advance will be
     allowed to make your presentations first.  Following these
     presentations others who request an opportunity to speak
     will be allowed to do so.  I would ask that all questions
     regarding these rules be made on the public record and that
     you refrain from asking the panel members questions when we
     are not in session.
               A verbatim transcript of this hearing is being
     taken and it will be made part of the official record. 
     Please submit any overheads, slides, tapes and copies of
     your presentations to me so that these items may be made a
     part of the record.  The hearing transcript, along with all
     of the comments that MSHA has received to date on the
     proposed rule will be available for review.  If you wish a
     personal copy of the hearing transcript, you should make
     your own arrangements with the court reporter that's sitting
     to my right.
               We will also accept additional written comments
     and other appropriate data on the proposed rule from any
     interested parties, including those who have not presented
     oral statements today.  These written comments may be
     submitted to me during the course of this hearing or sent to
     the address listed in the hearing notices.  All written
     comments and data submitted to MSHA will be included in the
     official record.  If you wish to present any written
     statements or information for the record today, please
     identify them.  When you give them to me, I will identify
     them by title as being submitted for the record.
               And, once again, Pam is sitting at the table by
     the door and has an attendance sheet which you may want to
     sign to register your presence.
               To allow for the submission of post-hearing
     comments and data, the record will remain open until
     September 8, 2000.
               As you may know, we held hearings last week in
     Morgantown, West Virginia, and Prestonsburg, Kentucky.
               Before we begin this hearing let me give some
     background on the proposals we are addressing here this
     morning.  First, the full shift sample joint proposal.
               In this proposal the Secretary of Labor and
     Secretary of Health and Human Services announce their
     proposed finding in accordance with the Federal Mine Safety
     and Health Act of 1977 that the average concentration of
     respirable dust to which each miner in the active workings
     of a coal mine is exposed can be accurately measured over a
     single shift.
               In this proposal, the Secretaries are proposing to
     rescind a 1972 finding on the accuracy of such single-shift
     sampling.  The joint proposal also addressed the final
     decision and order in National Mining Association v.
     Secretary of Labor issued by the United States Court of
     Appeals for the 11th Circuit on September 4, 1998.  That
     case vacated a 1998 joint finding and MSHA's proposed policy
     concerning the use of single, full-shift respirable dust
     measurements to determine noncompliance with the applicable
     respirable dust standard was exceeded.
               As most of you know, the single sample issue has
     been through a long public process which is outlined in the
     preamble to the proposal.
               The process ended with a September 4, 1998 ruling
     by the United States Court of Appeals for the 11th Circuit. 
     The Court vacated the 1998 Joint Finding, concluding that
     "the record contains no finding of economic feasibility,"
     and that MSHA "failed to comply with Section 811(a)(6) of
     the Mine Act."  Therefore, in response to the Court's
     ruling, the Secretaries are proposing to add a new mandatory
     health standard to 30 CRF Part 72.  The 1972 joint notice of
     finding would be rescinded and a new finding would be made
     that a single, full-shift measurement will accurately
     represent atmospheric conditions to which a miner is exposed
     during such shift.  this finding is the basis for the new
     proposed mandatory health standard.
               MSHA believes that singe sample measurements are
     more protective of miners' health than the current practice
     of averaging multiple samples.  The process of averaging
     dilutes a high measurement made at one location with lower
     measurements made elsewhere.  MSHA recognizes that single
     full shift samples have been used for many years by OSHA and
     at metal and non-metal mines in this country.
               The coal mining community had the opportunity to
     experience the use of single full shift measurement for a
     two year period in 1992 and 1993 and from May 1998 until
     September 1998 when the Court of appeals vacated the
     agencies' finding.  We are interested in your comments
     concerning the application of full shift samples at your
     mines during that time period.
               Additionally, because the proposed rule would be
     implemented as a mandatory health standard, all elements of
     Section 101(a)(6)(A) of the Mine Act have been addressed in
     this proposal.  These include the portions of the proposal
     which address health effects, develop a quantitative risk
     assessment, and the significance of risk.
               We are seeking your comments on this proposal as
     well as on the plan verification proposal.  The plan
     verification proposal is based in significant part on
     recommendations contained in the 1996 report of the
     Secretary of Labor's Advisory Committee on the Elimination
     of Pneumoconiosis.  that report was based on the studies and
     discussions of representatives from labor, industry, and
     neutral experts.  they believe that if their recommended
     changes were made, Black Lung disease could be eliminated
     and confidence would be restored to the federal program to
     control coal mine respirable dust levels.
               The plan verification proposal adopts three
     recommendations, three key recommendations of the Advisory
     Committee:
               1)  MSHA should take full responsibility for all
     respirable dust sampling for compliance purposes;
               2)  MSHA should verify ventilation plans at
     typical production levels; and
               3)  MSHA should require operators to record
     production levels and dust control parameters to monitor the
     dust levels.
               Under the plan verification proposal all the
     existing requirements in our regulations at 30 CRF Parts 70
     and 90 for underground coal mine operators to conduct
     respirable dust sampling would be revoked.  MSHA would
     assume responsibility for all sampling to determine if
     miners are overexposed to respirable coal mine dust.  This
     includes bimonthly sampling, abatement sampling, sampling to
     establish a reduce standard in mines where quartz is
     present, and Part 90 sampling for miners who have evidence
     of the development of pneumoconiosis.
               Since MSHA would conduct all sampling, the miners'
     representative would have the right to observe sampling with
     no loss of pay.
               Before approving ventilation plans, MSHA would
     conduct verification sampling under typical production
     levels, with only the controls listed in the plan in effect,
     and for the full shift.  This would assure that miners are
     not overexposed to respirable dust.
               The results of these verification samples must be
     below the "critical values" listed in Section 70.209 of the
     proposal before MSHA would approve a plan.
               The proposal defines "full shift" differently for
     purposes of plan verification and abatement sampling and for
     bimonthly compliance determination.  The proposal would
     revise the existing definition of "concentration" so that it
     is an 8-hour equivalent measure, even if the work shift is
     longer than 8 hours.
               In addition, under the proposal only MSHA samples
     would be used to establish a reduced standard in underground
     coal mines where quartz is present.  this would change the
     existing procedure which allows operators to submit samples
     which are averaged with MSHA samples.
               Finally, MSHA would allow longwall mine operators
     to use, on a limited basis, either powered air-purifying
     respirators or administrative controls when all feasible
     engineering controls cannot maintain respirable dust levels
     at or below the applicable standards.  Coal mine operators
     must first request that the Administrator for Coal Mine
     Safety and Health determined that all feasible engineering
     controls are in place.  If so, MSHA would grant the operator
     interim ventilation plan approval.  However, the operator
     must implement any new feasible engineering controls which
     may become available.
               Now, in response to the hearings last week in
     Morgantown and Prestonsburg we want to spend a few minutes
     outlining in some greater detail the major provisions of
     these two rules.  And Ron Schell will do that.
               MR. SCHELL:  Good morning.  Just give us a second
     to get set up here, would you please.
               (Pause.)
               MR. NICHOLS:  Do we need to move?
               MR. SCHELL:  No.
               (Slide.)
               MR. SCHELL:  Can everybody see that?
               As Marvin said, I'd like to take just a few
     minutes to sort of outline for you what this proposal is. 
     It is an extensive proposal so I'm going to give you the
     "Reader's Digest" version.  and the technique that I use
     when I go through here is basically I'm going to show what
     we do now and then compare that with what this proposed rule
     is.  And I'm not going to read everything that's on these
     charts, guys, because most of you know what we do now.  I
     just put it up there so that you can sort of visually
     compare the two.
               (Slide.)
               There are really four parts to this rule, part
     dealing with effective plans, part dealing with compliance
     with plans, part dealing with monitoring plan effectiveness,
     and that's sampling, and a part dealing with abatement.
               And I want to talk a little bit about effective
     plans and compliance with plans.  And I don't mean to pooh-
     pooh sampling or abatement -- they're key -- but what we've
     done with this rule is to really try to focus on the fact
     that coal mines aren't like normal industrial operations. 
     In normal industrial operations an industrial hygienist goes
     in and samples to determine if there's a problem.  If they
     find a problem then they move to control that environment.
               Well, in coal mining you don't have to do that. 
     We know any time you mine coal or transport coal you're
     going to be generating respirable dust and possibly silica. 
     So you've already got a hazard.  So we have to move to is to
     control that hazard any time we're mining or transporting
     coal.
               The average mine in this country operates 400
     shifts.  I say average because a lot of them operate more
     than that 400 shifts.  What we're really trying to do is to
     control exposures of miners on every shift, not just the
     shifts that are being sampled.  So the key to this proposal
     is we want to have an effective dust control plan in place
     every shift that you're producing coal.  And we want to make
     certain that that dust control plan is maintained and
     operating before you begin production on every shift.
               So that's the key to what these proposals are; we
     want to protect miners every shift that they're working.
               How do we plan to do that with effective plans? 
     One of the things, if you take -- again I want to focus the
     current program is on the left, the proposed program is on
     the right.  One of the things that we have done in this rule
     is we're designing plans that will protect miners the entire
     shift.  If you're working 12 hours, we want that plan to be
     effective for 12 hours.  If you're working 8 hours, we want
     that plan to be effective for 8 hours.
               The second thing we're doing, and that's the key,
     is we want that plan to work at high production.
               George, put that other view up there.
               (Slide.)
               During the last two hearings there was a lot of
     confusion between what, at what level we were going to
     approve plans in terms of production.  So we put this chart
     together.  And I'm going to ask Jon Kogut to just take a
     minute and explain this.
               Jon?
               MR. KOGUT:  Okay.  As Ron said, there was
     considerable confusion expressed at the two hearings last
     week about the various production levels that we referred to
     in the plan verification proposal.  So this chart is based
     on the last 30 production shifts that were actually recorded
     in a longwall MMU from our District 3 a few years ago.
               The little dots that are plotted along the left
     scale represent the actual productions recorded for those 30
     shifts.  Each dot represents one production shift.  So,
     they're a little faint on the overhead, but as you can see,
     the three highest production shifts were up above 9,000
     there, and the lowest one was just a little -- there were
     two that were more or less in a tie above, just above 2,000.
               There's an important distinction between, you
     should keep in mind between the percentile and a percentage
     of the average.  The sixth highest production which is
     plotted there is just under 8,500 tons.  And that happens to
     be the 80th percentile.  Where that 80th percentile comes
     from is that it's the sixth highest out of 30.  Six divided
     -- six out of 30, that's 20 percent.  So that means that 20
     percent of those production shifts are at that level or
     above, and 80 percent of them are less than that level of
     just over 7,500 tons -- I'm sorry, just under 8,500 tons. 
     So that's called the 80th percentile.  That's the sixth
     highest production
               The 10th highest is at around 7,500 tons.  And
     two-thirds of the production levels are less than that
     value.  That 10th highest is in the proposal what has been,
     what we've proposed as being the level at which verification
     sampling is going to take place.  So what that means is that
     for a -- when we go in to verify the plan under the
     proposal, the production levels that counts towards
     verification sampling have to be at that level or above. 
     And if they're not at that level or above, that 10th highest
     level, then they won't count towards verification sampling.
               Also, when a -- after a plan is approved under the
     proposal the operator is required to keep records of
     production levels.  And when an inspector goes in and checks
     those, subsequently checks those production records, if it
     looks as though more than a third of the production levels,
     productions that are being mined on shifts are higher than
     that verification production level, then that would be
     grounds for requiring reverification of the plan.
               In other words, if the MMU is mining at levels
     more than third of the time on more than a third of the
     shifts that are greater than the verification level then
     MSHA could require that the plan be reverified.  And the
     reason that that's set at one-third is because under the
     proposal we're setting the verification production limit
     level to be that 10th highest value which corresponds to the
     67th percentile.
               Now, just for purpose of comparison I'm showing
     the average on their to be 6,295 tons.  That's the average
     for those last 30 production shifts at that longwall
     operation.
               And another figure that was brought up at the
     hearings last week was a recommendation of the Advisory
     Committee that compliance sampling be conducted at 90
     percent of average production.  So, as you can see, the 90
     percent of average is, of course, less than the average and
     it's considerably less than the 10th highest value.
               And another number that's up there is the 60
     percent of average production which is what under both the
     current program and under the proposal those are the --
     that's the production level that's required for MSHA
     compliance samplings.
               MR. SCHELL:  George, put that other slide back up.
               (Slide.)
               Again, the point we wanted to make there is we're
     going to verify for the full production shift 10 hours, we
     verify for 10 hours.  We're going to verify at higher than
     average production.  And like Jon said, that we're going to
     keep records of that production so we can see if production
     is creeping up and you need to reverify.
               Next thing is MSHA's going to do that verification
     sampling.  And when we verify that plan, only those controls
     listed in the plan can be in effect.  Okay?  High
     production, only those controls in effect, with a slight
     margin there because we know you can't get 100 percent each
     time.  When we verify that plan we're going to be verifying
     more than one occupation.
               Up there you see we'll be looking at both the roof
     bolter and the DO on a continuous miner section.  And what's
     important is when we verify that plan we're going verify
     based on two criteria, two separate criteria:
               1)  They have to be in compliance with the 2
     milligram respirable coal mine dust standard;
               And then we're going to look to make sure they're
     in compliance with the 100 microgram silica standard.
               So both silica and respirable coal mine dust have
     to be controlled.
               We estimate it's going to take one to ten shifts
     to verify a plan.  In some cases it may take more because
     you have to reach certain limits before we'll approve that
     plan.
               Lastly, we have proposed that if engineering
     controls have been exhausted and the Administrator reaches
     that determination, under limited circumstances downwind of
     the shear operator on longwalls only, operators would be
     allowed on an interim basis to use administrative controls
     or PAPRs on miners who work downwind of the DO.
               The point I want to leave you with, we are
     applying stringent criteria to the plan approval process to
     make certain that when we approve that plan we know that
     plan is going to work.  And, again, our goal, compliance on
     all shifts.
               George, the next slide.
               (Slide.)
               How are we going to achieve compliance with plans? 
     One of the major things that the Assistant Secretary has
     done in the past few years is to pass a requirement in the
     ventilation proposal that says that operators have to
     conduct an on-shift examination of the dust control
     parameters prior to production on every shift to make
     certain that those controls are in place and working.  That
     requirement stays in place.  The difference though, we've
     got better plans.  So we ought to be doing an on-shift
     before every production shift on better plans.
               Secondly, we're going to be increasing our
     monitoring of that on-shift requirement.  In addition to
     checking it when we do routine inspections we'll be checking
     it when we do our bimonthly sampling and we'll be checking
     it when we do abatement sampling.  And as Jon mentioned
     before, we now will require that production records on
     every, on every MMU be maintained so that we can look to see
     what the production has been on that MMU over the past six
     months.
               What are we going to do in terms of monitoring
     plan effectiveness?  George, why don't you jump ahead to
     that next slide?
               (Slide.)
               And one of the major things we're going to do
     that's in this proposal is we're going to single sample
     determinations.  And this is a chart to show you what we're
     trying to get away from.  This is a real mine.  These are
     samples taken in April of 2000.  And you'll see that five
     samples taken, these are operator compliance samples, two of
     those samples clearly are beyond the 2 milligram standard. 
     One of them's almost double it, the other is at 2.4.
               We take no action based on those samples.  And
     why?  Look at the section average: 1.8.  Two out of five
     samples show overexposures.  We take no action.  Why? 
     Averaging masks high exposures with low exposures.  We need
     to get away from that.
               (Slide.)
               We are proposing that when we do our sampling
     bimonthly that we do it as we currently do for an 8 hour
     period of time.  We believe that since we're there, since
     we'll know what the plan parameters are, since we know where
     the miners are, 8 hours ought to give us a good idea whether
     or not that plan continues to be effective.  And a key to
     this sampling is to allow us to make a judgment as to
     whether or not conditions have changed so that that plan is
     no longer protective of the miners on every shift.
               We are soliciting comments as to whether or not
     this compliance sampling should be full shift sampling
     rather than 8 hour sampling.
               When MSHA samples on a bimonthly sample, well,
     when MSHA samples bimonthly we're going to be doing what we
     do now, that's we go out and we don't sample just one
     occupation, we're going to sample at least five occupations
     on the MMU each time.  That gives us an overall view of
     what's happening on that section and doesn't allow you to
     move people from dusty areas to less dusty areas when you're
     only sampling one person.
               Like Jon said, production has to be at least 60
     percent to be a valid sample.  We will every bimonthly
     period sample the DA and any DAs on or near the MMU.  We
     will sample every Part 90 miner.  We are proposing in these
     regulations that we only sample the non-MMUs, the outby DAs,
     at least once a year.  And the reason for that, if you look
     at the exposure levels that we see in both operator samples
     and MSHA samples we find very few overexposures outby.  I
     think last year we only issued eight citations nationally
     for overexposures on outby DAs.
               One of the key things to our doing the sampling is
     since we're there we can record what the plan parameters
     were in place, what the production was on that day, where
     the people were on that day.  And over a period of time that
     gives you an enormous amount of data on what's happening at
     that mine and what works and what doesn't work at that mine. 
     So just being, in addition to doing the sampling, collecting
     that data over a period, you know, six times a year, year
     after year gives you an enormous base of data on what's
     really happening at that mine.
               MR. NIEWIADOMSKI:  I think it's important to
     recognize with regards to bimonthly sampling that that
     represents only minimum amount of sampling.  Because our
     criteria calls for if any sample exceeds the applicable
     standards but is below the two sides value we're going to go
     back and sample an additional shift.
               MR. SCHELL:  That's a good point, George.  And one
     other point I would make is since you've got an approved
     plan, since that plan has to be on-shifted prior to every
     production shift if an operator goes out on that plan and
     we're there, so we would have known if that plan was being
     complied with, it's likely that we'll put that plan back
     into plan verification to make sure that that plan works. 
     That will generate another series of one to ten samples to
     reverify that plan.
               (Slide.)
               Abatement.  We think this is a significant
     improvement.  In the past, operators took abatement samples. 
     We didn't know what changes they had made to come into
     compliance, what their production was.  MSHA is proposing to
     do all abatement sampling.  MSHA will do the abatement
     sampling.  We will be doing it based on single samples so
     even if one occupation goes out on the MMU we'll sample all
     five.  All five have to come back into compliance.
               A difference, when we sample for abatement we want
     to do full shift sampling.  Again, we will be able to record
     what the parameters were in place, what the production was
     in place.  And repeating what I just said earlier, any time
     we have to do abatement sampling the first thought we're
     going to have is there's something wrong with this plan and
     it needs to be modified.  That doesn't mean there couldn't
     have been a situation where a miner got themselves in the
     wrong, positioned themselves in the wrong place.  But,
     again, we're going to be looking to see why that plan didn't
     control that environment on the day that they went out of
     compliance .
               Marvin, I think that's it.
               MR. NICHOLS:  Okay.  Thanks, Ron.
               It's been pointed out that I not only misspoke
     once but twice in my opening statement.  I referred to this
     proposal as "full shift sample proposal."  Of course I meant
     it's a single full shift sample proposal, the single shift
     sampling is what we're talking about.
               Okay, at this time we'll consider any evidence or
     discussion on any aspect of the two proposals.  And as I
     said earlier, we'll begin with those that have requested to
     present information in advance.  And following all the
     presentations for folks we have signed up, anyone else that
     wants to come forward and make a presentation will be
     allowed to do so.
               We have the hearing scheduled for all day today
     and we have this room up until midday tomorrow.  So we
     should have plenty of time for anybody that wants to make a
     presentation.
               So at this time we'll start with Joe Main with the
     United Mine Workers of America.
     STATEMENT OF JOE MAIN, UNITED MINE WORKERS OF AMERICA,
     ADMINISTRATOR OF HEALTH AND SAFETY
               MR. MAIN:  Good morning again.  My name is Joe
     Main and I am the Administrator of Health and Safety for the
     United Mine Workers of America.  And as the panel knows, I
     also served on the Secretary of Labor's Advisory Committee
     which was instructed to develop proposed rules for the
     government to act on to reform the coal mine dust program.
               And as I have said in previous testimony before
     this panel, this rule falls far short of what's needed to
     protect the nation's miners.  It falls far short of that
     that miners have expected and demanded over the years.  It
     fails to address the law suit continued or filed by the
     miner workers on January 13, 2000.  And it seriously fails
     to follow the recommendations of the Federal Advisory
     Committee which I served on.
               And each of those areas I want to express the
     extreme disappointment of the United Mine Workers for the
     proposal that's before us.
               And I came to one conclusion after trying to rack
     my brain to figure out how we could make this rule work. 
     And the only conclusion I came to is that we need to elect
     Ron Schell President of the United States.  We need to give
     him the single duty of carrying out the proposal that MSHA
     has prepared, and we've got to go to God and ask for him to
     be placed in a state of immortality.  Now, short of that I
     have not figured out any way for this rule to actually be
     carried out in a way that would be effective across the
     board to miners.
               And, as we pointed out, we do support the agency's
     concept of a single full shift sampling.  After reading the
     rule it fails to accomplish that and it fails to accomplish
     the wants and needs of miners, the findings of the Advisory
     Committee, as I've pointed out.  And it falls far short of
     really making sure that the miners are really protected in
     the workplace in this country.
               We also support the concept of plan verification. 
     But in its current structure in the rule there is several
     difficulties with that rule that we think should not be
     finalized in that form and enacted as a final regulation
     because we think it would fail to adequately protect the
     miners of this country.
               And as we pointed out, we're very concerned about
     the work empowerment aspect of this rule.  We believe that
     actually there is deteriorations in current worker
     empowerment protections and rights that miners have.  And we
     believe the process was really designed for the government
     and to be implemented and used by the government.
               And by the style of the proposal and both the
     policy concepts of taking standards out of the current rule
     and placing those into policy, by using the policy approach
     in the preamble to implement the agency's proposal, and by
     designing the rules in such a way that are very
     discretionary we believe that it has weakened the knees of
     miners' protections or rights under the current -- that
     miners have under the current rules.  And would fail to have
     a standard in place that miners could clearly understand.
               I've talked to many miners since this proposal hit
     the decks and one thing that I have found is that the miners
     out there are totally confused about what this rule is and
     does.  And as I pointed out, I think the announcements that
     were provided to the public on the implementation of this
     rule did not fairly characterize a lot of the changes that
     took place.  And I think it served to create some of the
     confusion that we're continually trying to clear up in the
     coal fields.
               I know many miners that I've talked to thought
     that when that announcement came out there is full shift
     sampling for miners during compliance sampling.  That is
     just not in the rule.  We understand that full shift
     sampling would only apply on abatement samples in terms of
     compliance purposes.
               Miners thought there was a takeover of the
     operator program, which we've all sought for years, only to
     find really the agency is going to continue to do what they
     are currently doing now and eliminating the mine operator
     sampling program.  And there's a few changes around that,
     but generally speaking that's what the proposal amounts to. 
     That's not what miners wanted, that's not what the mine
     workers wanted, that's not what the Advisory Committee
     sought to do and so on.
               So, and I could go into more detail which I'm
     going to bypass that for right now.  We'll doing a lot more
     for the record.  And other folks will be testifying here
     later.
               Miners in Prestonsburg and Morgantown I think sent
     a clear message to this panel as I pointed out in the
     closing remarks in Prestonsburg, and that was to send the
     proposal back, go back to the drawing board and issue a new
     proposal.  And that's particularly true with respect to
     Parts 70, 75 and 90.  And I just went back through and just
     in my mind all the miners that testified who came from West
     Virginia, Pennsylvania, Alabama, Kentucky, Illinois,
     Virginia, and there was just this clear message from the
     miners that that's what they wanted done.
               And they pointed out I think a lot of the flaws in
     the proposed rules that would really affect them at the mine
     site.  And I think that there is an obligation on the part
     of this panel to listen to the public since it is only part
     the public really plays in this rulemaking process.  And if
     the government fails to heed that I think that they have
     neutered really the citizens' rights to influence government
     actions in this country.  And being those that are directly
     affected by this and representing miners who will directly
     affected I think that would be just entirely the wrong
     course of action to take.
               In addition to the Advisory Committee, the
     lawsuit, the historical record that miners have laid out
     asking for different reforms that just did not take place in
     this rule there is another issue that has not been discussed
     before this panel.  And I would like to spend a little bit
     of time this morning on that.
               There's some confusion out there that I picked up
     in Prestonsburg.  And I think it's when I get through this
     people will understand what it is.  There is the view that
     this whole rule is a NIOSH/MSHA rule.  And as I have read
     the record and I've listened to the announcements, as I
     clearly understand it the only part of this rule that MSHA
     or that NIOSH has played a part in is the single full shift
     sample proposal under part 70.500.
               Is that correct in terms of --
               MR. NICHOLS:  That's generally correct, I think.
               MR. MAIN:  And my question would be given the fact
     that MSHA or that NIOSH issued a criteria document in 1995,
     submitted it to MSHA in accordance with the Mine Act which
     required MSHA to take official actions, and that is to
     either issue rules based on that criteria document or
     publish a notice, if they decided not to do so, why they
     decided not to do so.  And as I've plowed through this rule
     and the preamble I don't see that clearly identified,
     particularly in the areas that the agency has engaged in
     rulemaking on.  And we're going to do that throughout this
     process.
               But I think it's a fair question to ask, why was
     NIOSH not a party to the development of the rules under Part
     70, 75 and 90?
               MR. REYNOLDS:  Joe, I just wanted to clarify that
     the reason the rule is structured the way it is and the
     reason we have two proposals is the only thing that NIOSH
     participated in was the issue of whether we could accurately
     measure over a single shift the level of respirable dust. 
     NIOSH does not have rulemaking authority and for that reason
     they were not involved in developing the rules under Parts
     70, 75 and Part 90.  They were strictly involved in the
     issues of measurement under the single full shift measure
     proposal, the joint proposal with NIOSH and MSHA.
               So the other, the plan verification rule is
     completely the Mine Safety and Health Administration. 
     That's why the rules are structured the way they are, why we
     have the separate rules.
               MR. MAIN:  But having said what you did and having
     a knowledge of the criteria document and the rulemaking
     process I find it strange that NIOSH has specific
     recommendations made with regard to single full shift
     sampling that is pertinent to the rule that was published on
     Part 70.500, and they are participants.  And the agency
     likewise had pertinent information and involvement in parts
     of Part 70.  That, I'm confused as to why NIOSH was a party
     to the Part 72 rulemaking process and was not a party to the
     Part 70, Part 90 and the Part 75.
               And if I could go one step further and just
     explain.  The NIOSH criteria document recommended that there
     be full shift sampling as I read it.  And I have a copy
     which I would like to introduce into the record because I
     don't think it's fully in the record yet on the Part 70,
     Part 90, Part 75 rulemaking process.  There is some excerpts
     or references to this in a couple areas but the whole
     document has not been, as I have read the preamble, really a
     broad piece of that.
               But the single sample rule in one instance is
     recognized under Part 70.500.  And its implementation is
     recognized in Part -- or the Part 72.500 rather is the
     single sample rule.  And the implementation of, I want you
     to check on that, is represented in the Part 70 which would
     define what a full shift is, you know, how miners would be
     sampled, the actual exposure level that would be applied.
               So, you see I'm a little bit confused why they
     were over here on this part of it but it wasn't a part of
     the second part.  But there's other issues as well but
     that's just an easy one to settle.
               MR. REYNOLDS:  Well, once again, the reason they
     were strictly involved in the issue of whether we could
     accurately measure and it was MSHA that would have exercised
     the authority to create the mandatory standard under Part 72
     to implement that.
               MR. MAIN:  I understand your answer but I don't
     understand you answer.  And if that makes any sense I still
     can't understand why they weren't a party to the other
     process.
               If you look at the NIOSH criteria document there
     is some clear-cut recommendations that went to MSHA in
     September of 1995 that is directly reflected by this rule. 
     And I'm going to go through a few of those and just point
     those out.  And with that I think that NIOSH ought to have
     been a party.  And before this record closes I'm going to
     make an official request that NIOSH does respond to this
     rulemaking.  And I question after reading this rule the
     conflicts between both the Advisory -- the 1995 criteria
     document and what MSHA proposed is, I sat back and watched
     this panel for, you know, two hearings now and I have not
     seen any weigh-in really on the debate on those issues that
     had been clearly articulated by miners and by those who were
     testifying.
               The lowering of dust standards versus the raising
     of dust standards is one clear on.
               MR. REYNOLDS:  I just wanted to clarify once more
     that NIOSH didn't have anything to do with the changes, the
     proposals for Part 70, 75 and 90.  And the criteria document
     would have been in the form of recommendations.  That's the
     role of NIOSH.  So they would not have been involved in the
     rulemaking, you know, those particular rulemakings, they
     were strictly involved in the single full shift measure
     proposal.
               MR. MAIN:  I understand your answer but, again, I
     don't understand your answer because I think there's a
     conflict both ways.  Okay.
               And to that end I'd just like to walk through this
     proposal because I think miners do deserve to hear from
     NIOSH about their position on this or government agencies
     that have done a tremendous amount of research and work,
     consistent with the Advisory Committee, they launched in to
     try to develop reforms.  And as a starting point I'd just
     like to start talking about the 2 milligram standard.
               Now, MSHA had proposed the 2 milligram is probably
     the best standard on coal mine longwalls to be done with the
     4 milligram.  And I know there's some difference about how
     you define what I'm saying.  But in my book two is two, four
     is four, and there's going to be a four that is clearly
     stated in the proposed rule.
               NIOSH, however, recommended to cut the current
     exposure level in half to 1 milligram.  And I just seriously
     question does NIOSH support the criteria document and their
     findings or do they support the position of the proposed
     rule issued by MSHA?  Because any way that you slice it
     there is a clear difference there.  If one agency is
     proposing cutting the rule in half to 1 milligram and
     there's a reform proposal to raise it to 4 milligrams that's
     a clear conflict.  And I think it's a clear question to ask
     if NIOSH supports the criteria document or if they support
     the MSHA rule?
               MR. GRAYSON:  NIOSH policy is contained in the
     criteria document.
               MR. MAIN:  I'm sorry?
               MR. GRAYSON:  NIOSH policies are contained in the
     criteria document.
               MR. MAIN:  Which means?
               MR. GRAYSON:  They are recommendations to the
     agency on what we feel are our proper measures.
               MR. MAIN:  And in support of that position let me
     ask the question this way, NIOSH clearly recommended that
     the exposure level be reduced to 1 milligram in this
     criteria document.  Does NIOSH still stand by that position?
               MR. GRAYSON:  Yes.
               MR. MAIN:  Yes?
               MR. GRAYSON:  Yes.
               MR. MAIN:  Okay.
               MR. REYNOLDS:  One thing I wanted to interject is
     that actually reducing the exposure level was outside the
     scope of this rulemaking.  And as I'd mentioned earlier,
     there is another rulemaking action that was under
     development at Mine Safety and Health. Earlier, you know,
     farther down the rulemaking process is an advance notice for
     proposed rulemaking.  So that was outside the scope of this
     rulemaking as to whether or not to reduce the exposure level
     to 1.
               MR. MAIN:  I understand two things: one, that the
     government in 1980 issued proposed rules or filing rules
     with the promise to miners that they would do more.  And
     we're still back here in 2000 trying to get them to do more
     stuff.  So the promises from the government are not well
     received by the miners.  And I --
               MR. NICHOLS:  I think we've answered your
     question.  Larry says they support what's in the criteria
     document.  We have it out for advance notice of proposed
     rulemaking.
               MR. MAIN:  But I think the difference here then,
     Marvin, is this, that what you did in this proposed rule was
     actually affected that very issue by raising the dust
     standard.  Okay.  Had you not raised the dust standard then
     I think it would be a different issue.  But --
               MR. NICHOLS:  We haven't raised the dust standard.
               MR. MAIN:  Okay, we can debate that.  But there is
     a 4 milligram standard that is permitted.
               MR. NICHOLS:  Joe, you know that's the gap between
     the rule and the protection factor for the personal
     protective equipment.
               MR. NICHOLS:  And I know miners who are currently
     wearing airstream helmets will have based on the application
     of that rule an increase in the dust levels if that goes
     forward, if you want to look at it that way.
               MR. NICHOLS:  For a very small section of an
     overall mine where all engineering controls have been
     exhausted.
               MR. MAIN:  Nonetheless, those miners that are
     currently working at that, from our opinion, would have an
     increase.
               MR. SCHELL:  Joe, I just need to just technically
     clarify.  What we're saying is that if you're working
     downwind of the shear operator with a PAPR on you won't be
     exposed to 4 milligrams of dust.  We're saying that we're
     putting a protection factor of two on that.  And if you have
     that respirator on you will not be breathing 4 milligrams of
     dust or we wouldn't be recommending it.
               Now, if you have data to show that that protection
     factor isn't proper we need to get that.  But to say that
     miners are going to be exposed to 4 milligrams of dust isn't
     correct.  If they're wearing that PAPR we have reason to
     believe that they won't be exposed, they won't be exposed to
     2 milligrams.
               Just like the administrative controls, we'll allow
     them to use administrative controls downwind but we're not
     going to allow them to be exposed to more than 2.  So maybe
     I'm being technical but you need to understand we are not
     saying we're going to allow anybody to be exposed to breathe
     4 milligrams of dust.  We believe that that instrument will
     make certain that they don't breathe 4 milligrams of dust,
     that they won't breathe any more than 2.
               MR. MAIN:  Three responses I have.  Number one is
     that miners who are currently wearing Racal helmets on those
     areas will have their dust increased if permitted to go to
     the airstream helmets and increase the dust levels to 4
     milligram.  I think that's just a fact of life, the dust
     generation levels would go up.
               The second point I will make is with regard to the
     evidence about the use of airstream helmets, I think there's
     been considerable evidence put on the record already with
     regard to the faultiness of those only approved -- the only
     approved devices I know in this country today, if there are
     more then I'd like to hear about those, whereas the filter
     system has neutered the ability of those airstreams to
     provide a quality respiratory protection to miners is
     creating all kind of difficulties.
               I would also let you know that I've been in many
     mines and for those that think that these things are being
     worn as approved respiratory protection devices as outlined
     by NIOSH is just not true.  I've been to a lot of mines
     where that seal shield is taken off of there.  And there's a
     simple reason for that is in that enclosed headpiece a lot
     of miners just find it totally uncomfortable to breathe and
     the condensation builds up creates problems.  And they're
     not being worn in many mines by many miners as an approved
     device.  And I think that creates some problems.
               And I think the testimony that's been presented
     too shows a lot of difficulties in work environments that's
     already been put on the record.
               MR. SCHELL:  Well, where we might disagree a
     little bit is with your first premise that dust levels are
     going to go up.  What we're saying is they're already there. 
     What we're saying is that they're mining at a rate and
     they're generating a level of dust.  And we've gone in and
     we've checked and we can't find a way to control that dust
     anymore, it's there already.
               And what our concern was that we not walk away and
     pretend that everybody is protected, that if in fact they're
     already generating that level of dust they've exhausted
     everything, we need to do something to protect those miners.
     And that's where we're saying in those circumstances we're
     going to control, we're going to make certain that those
     engineering controls stay in place and we're going to
     control to 2 milligrams to the DO.
               But we're not going to let the dust go up that's
     already there, Joe.  What we're going to try to do is
     protect that miner who's already in that dust because we
     can't do it through engineering controls.
               MR. NICHOLS:  You're not suggesting that those
     folks that have engineered out the problem can forget about
     engineering controls and go to airstream helmets, are you?
               MR. MAIN:  Given my knowledge of this system and
     how it's worked and how many times operators have come
     before us in this agency saying, "I've exhausted all the
     controls, give me airstream helmets," I know what we can
     expect, Marvin.  That just, you know, is going to happen. 
     It has happened.  And I know that the agencies have been
     weak-kneed at different times in life and approved mine
     systems and mining conditions that we believe are not in the
     best interests of miners.  And that's the problem we have.
               We also know that under the current scheme miners
     do have a control over what happens to engage engineering
     controls.  If they're out of compliance MSHA cites them,
     miners have the ability through the legal process that's
     going to be removed now up to 4 milligram under this
     proposal, to challenge the agency's enforcement of that if
     they fail to properly enforce it and bring about the
     engineering controls.  And I'm a firm believer, and I
     believe that has worked in the past and it needs to continue
     to work in the future.
               I think the problem everybody is missing here is
     we lack quality respiratory protections for all miners in
     this country, not just longwall miners.  And I've raised
     this on many occasions.  I have offered to work and am
     jointly working with the BCOA through a partnership to try
     to develop better working respiratory protection for all
     miners.
               I have looked at the record regarding the
     operators ability to use respiratory protection to lessen
     enforcement actions.  And if the enforcement numbers I've
     got from MSHA are any indication of what's happening out
     there mine operators across the board are not taking
     advantage of that by providing quality respiratory
     protection when they are out of compliance to get them on an
     SS citation.  I think the latest numbers I got is still in
     like the 95, 96 percent range of SS citations.
               So what I'm saying, Marvin, is I think the law has
     worked.  It needs to continue to work.  Miners do not need
     to have that right stripped away from them where they can
     now challenge.  We need to hold to the traditional 2
     milligram standard that miners fought hard to get to in this
     country.  We need to use rational approaches under citation
     to fix these problems.  And I think it has been executed in
     many mines in this country, Trail Mountain, Jim Walters and
     other location.  And not strip this right away from miners
     and not move away from this hard fought standard that
     miners, many miners died to gain.
               MR. NICHOLS:  Okay, you wouldn't be opposed to
     some plan like, I forget which Jim Walters mine it was at,
     the -- it's an administrative control referred to as the
     Haney plan where are you saying you'd support a plan like
     that?
               MR. MAIN:  I'm saying that in the context of the
     Mine Act that whenever an operator is out of compliance that
     during that out of compliance period that they take measures
     to protect those miners.  I firmly believe that.  And at
     times during that phase while they're installing the
     engineering controls and fixing that, respiratory protection
     by law is obligated on the part of mine operators to be
     provided to miners.
               Miners need to be reduced from that exposure in
     those circumstances but with the clear mindset that that
     operator has to continue to develop and implement
     engineering controls to fix that problem and it's being done
     while it's under citation.  With a legal responsibility of
     that operator to comply with this law that replaced the Mine
     Act in 1969, that is I think the most precious thing that
     miners have.
               And that's one of the problems I have with this
     whole proposal is what MSHA did with this is not only opened
     that floodgate -- and I understand what MSHA's saying, but I
     understand, you know, once out the door, you now, more
     horses get out of the barn.  But also understand the removal
     of the miners from this whole process.
               And when my guys ask me what can we do when they
     do that?  I said, stand and scream.  Because that's the only
     right that you have.  As opposed to now you can go in and
     tell that federal inspector this operator isn't moving fast
     enough to fix this problem, we don't agree with that
     abatement time, we don't agree with this modification.  You
     put the paper on then which is the order if they don't get
     this thing fixed now.
               And what happens, and I think that has set the
     environment for both the mine operator and the mine
     operators to work together along with MSHA to get the
     problem solved to move forward.  It puts -- it builds the
     kind of box that's necessary to get to an end solution of
     getting quality controls in, Marvin.  And in the bottom of
     my heart I believe that.  And I think whenever you remove
     that you're removing that control that miners have.
               And, you know, I support the developments of
     worker-friendly respiratory protection that really works for
     miners.  In the study that we're doing jointly I think
     we're, you know, a ways a way from doing that, you know,
     figuring that out.  But it's time, what we did was send this
     back to the miners, let them figure out what kind of
     respiratory protection they need based on giving them a
     model, what would you change about that, what would you fix? 
     But the whole concept here is not to replace engineering
     controls with that, it's to buffer the current law.
               MR. NICHOLS:  Do you think miners understand this
     so-called compliance with the 060?  The example we put up
     here clearly shows that two miners were overexposed but that
     once we got through this average scheme there was no
     noncompliance.  Do the miners understand that?
               MR. MAIN:  I think a lot of miners understand
     that.  And I think and also it's clear as a bell from
     miners' perspective, as far as I know from the Mine Workers'
     perspective we think that's something that definitely needs
     to be changed.  We need to go to the single sample
     application.  And we need to have a standard that is applied
     that quickly and legitimately requires the dust to be placed
     under control.
               If I could go through more of the issues.  The
     MSHA proposal would raise the exposure level for compliance
     sampling to 2.33 and 1.26.  NIOSH recommended that MSHA make
     no upward adjustment of the REL for measurement and
     certainties.
               Further, NIOSH recommended that the 1 milligram,
     we call a REL which is recommended exposure level, would
     actually be equivalent to .09 when measured according to
     NIOSH.  And that's contained in the abstract of the criteria
     document.
               Now, as I read the MSHA proposal and Part 70 and I
     read the NIOSH criteria document again I see a clear
     conflict with the direction of the agency's, the MSHA
     proposal, and the clear recommendation posted to MSHA by the
     criteria document.  And I understand what you're saying that
     there will be more rulemaking.  You're going to address
     this.  You're addressing this now.  I mean that's one of the
     fundamental problems.  And I have no hopes that we'll ever
     see another reform of the dust program once this gets out
     because we've waited 25 years to get here.  And I would not
     advise miners across this country to put any weight on there
     being another reform in their lifetime given what we've gone
     through to even get this far.
               Having said that, there's a clear conflict here
     between the proposal of NIOSH and the MSHA proposal.  And
     again I'm going to ask NIOSH do you support the
     recommendation that you made that there be no upward
     adjustments in this proposal and that really the direction
     that MSHA needs to go is to lower the dust standard with a
     much lower exposure level?
               MR. GRAYSON:  Yeah, I know this doesn't work and I
     will try to speak loudly but it does go to the record.
               But at this point I really should say that, yes,
     those are the policies of NIOSH that are contained in there. 
     They're still the policies of NIOSH.
               You know, however, NIOSH does support efforts by
     MSHA and anyone else that will reduce miners' exposures to
     dust and silica dust and also eliminate or at least reduce
     significantly the incidents of the diseases that we're here
     discussing.  And, you know, we can realize that steps,
     strong steps are necessary.  And oftentimes they do need to
     be incremental in nature.  And but once again, our policy is
     contained in the criteria document.  That was all those
     policies that you're about to cover are recommended such
     that we have the greatest possible impact on reducing
     disease and reducing exposures.
               MR. SCHELL:  Joe, could I comment on two things? 
     And maybe again here it's semantics.  At Prestonsburg I
     think Tom Wilson asked a question about how many
     overexposures we discovered using single sample at 2.33
     versus using average.  And I believe what we said is that by
     using single sample at 2.33 we uncovered something like 2.5
     times as many overexposures and resulted in us taking steps
     to reduce that dust level.
               So there is a significant improvement in miner
     protection of going to single sample versus our averaging
     now in citing at 2.1.  And that was the gain that we were
     trying to make.
               Now, granted, we believe that for legal reasons
     that the Secretary has the burden of proof to show that
     there is a violation.  That's why we put the upper limit,
     the two site value.  We don't accept 2.33 as being in
     compliance.  And that's the point George was making.  If
     you're between 2.1 and 2.33 that's an area that's going to
     be targeted by MSHA for further sampling.  So we do that to
     meet a legal burden, not because we believe 2.33 is where we
     should be.
               And the last thing I would refer you to is at page
     42,069 of the preamble to address you point.  It says, and I
     will quote it, "Although it is beyond the scope of this
     rulemaking, in its 1995 criteria document NIOSH recommended
     a time weighted average exposure to respirable coal mine
     dust of 1.0 milligrams per meter cubed up to 10 hours per
     day for the 40 hour work week.  The Secretary of Labor and
     the Secretary of Health and Human Services believe that
     miners' health can be further protected from the
     debilitating effects of occupational respiratory disease by
     limiting their exposures to the applicable standard."
               So I think both NIOSH and the Secretary believe
     that reducing the standard is the way to go.  If you
     remember, the Advisory Committee's recommendation was that
     in addition to reducing the standard they did ask the
     Secretary to also do what they could to ensure compliance
     with the current standard.  And that was really the focus of
     this rulemaking.
               MR. NICHOLS:  I think any -- you know if I'm wrong
     about this the panel can correct me -- but I think any
     instrument we use, whether it be dust or noise, has a
     correction factor.  I mean certainly we use that with the
     noise rule also.
               MR. MAIN:  It's obvious that the correction factor
     works to support the interest of the mine operator and not
     the miner.
               MR. NICHOLS:  No, Joe.  It's purely based on the
     accuracy of the instrument.
               MR. MAIN:  Yeah.  If it goes plus or minus then
     what I'm saying is you go to the high side of the equation
     as opposed to the low side.
               MR. NICHOLS:  Well, if it was 1 it would be higher
     than 1.  I mean it's a corrective factor for the instrument.
               MR. MAIN:  But I'm just saying that in this rule
     the agency did set a standard by which compliance is going
     to be measured by.  And that standard was -- is going to be
     effected as a new standard across the board in this rule. 
     And as the agency addressed that standard I think they had
     an obligation to follow the recommendations of the advisory
     committee.  And I'm not here to tell anybody, any miner to
     rely on any hopes of the agency coming back to readjust the
     exposure level because in my mind I just don't think, you
     know, that's going to happen.  And it is part of this
     rulemaking, in our opinion, and I know there may be some
     differences there.
               The MSHA proposal also dramatically reduced the
     frequency of compliance sampling.  Only six shifts on a
     section and one shift outby of coal mines would be
     compliance sampled.  And those are not guaranteed, as we
     pointed out, given the fact that they're a policy and not a
     regulation.  And there's a clear question of funding
     attached to that.
               MR. SCHELL:  Joe, I would just add if you look at
     plan verification we have gone to the other side.  If you'll
     notice that on plan verification that to verify at one
     sample you have to come in at 1.7 whatever it is, which does
     the same thing, gives greater than 95 percent probability
     that in fact you're below the levels.  So we've tried, on a
     compliance side we've had to put the adjustment factor in. 
     But on the plan verification we've tried to go the other way
     and required it to be, if you wanted, you know, required the
     plan to be verified below the 2 milligrams.
               MR. MAIN:  And we understand that.  And that's for
     the initial plan verification.  The follow-up for
     determining miners' continued exposure is rested, however,
     in the compliance sampling which gives us great concern in
     that there is very infrequent sampling of miners once the
     plan is verified.
               Now, NIOSH called for sampling to be periodic and
     occur frequently enough that significant and deleterious
     changes not be permitted to persist.  NIOSH noted although a
     single full shift sample could accurately measure the
     average airborne concentration during a shift, a single
     exposure measurement has little predictive value for
     demonstrating that a work environment is and is likely to
     remain acceptable.
               And so I think they noticed, you know, the need to
     do in that statement more constant measuring because you
     just can't rely on that to be the, you know, the totally
     predictable factor.
               And NIOSH used an example, one or more closely
     spaced samples being taken instead of the current bimonthly
     sampling where the environment is particularly dynamic.  The
     NIOSH recommendation did not call for reduced sampling
     frequency.  I mean I could find that nowhere in the criteria
     document.  And, you know, again, you know, does NIOSH
     support the reduced compliance sampling which is not even
     guaranteed by a rule, guaranteed by law, funding's not
     guaranteed, in this proposal because I think there is a
     clear conflict between what I read in the criteria document
     and what I see in the MSHA proposal.
               MR. SCHELL:  Joe, I'm sorry, were you saying the
     criteria document recommended 36 shifts of sampling?
               MR. MAIN:  I didn't say it recommended 36 shifts. 
     I said it -- if you read the thrust of it, it recommended
     more infrequent sampling.  And I don't think -- there is
     nowhere in here that I see that it recommended a reduction
     to six shifts a year.  And I think that's contrary to
     everything that I read in this document, Ron.
               MR. SCHELL:  Could it have meant an increase to
     six shifts a year by MSHA?
               MR. MAIN:  I'm sorry?
               MR. SCHELL:  Could that document be read to mean
     an increase to six shifts a year by MSHA?
               MR. MAIN:  Well, I think the, if you read the
     document, it wasn't talking specifically about MSHA or about
     the operators.  As a matter of fact, probably more so about
     the operators' scheme than the MSHA scheme.  But it was
     talking about the need to have the frequency of sampling. 
     And that's a real major problem I think that everybody
     understand that we have with this rule.  And we believe that
     the NIOSH criteria document supports convention of and will
     have more frequent sampling as opposed to less frequent
     sampling.
               MR. NICHOLS:  That's a good point though, I mean
     to talk about where MSHA has come in the last year we've
     moved from one sampling shift a year to bimonthly.  That's a
     significant increase.
               MR. MAIN:  In the last year?
               MR. NICHOLS:  Last --
               MR. TOMB:  April.
               MR. NICHOLS:  How long?
               MR. TOMB:  April.
               MR. NICHOLS:  Since April.
               MR. MAIN:  Well, correct me if I'm wrong.  I think
     the record reflects during the workings of the Advisor
     Committee you guys were doing about four underground samples
     a year; is that correct?
               MR. SCHELL:  Yeah, but then we implemented that in
     a phased-in fashion, Joe, as we got resources from the
     Congress.  We started with a pilot program in a couple
     districts and then we expanded that pilot.  Then as we got
     more resources from Congress we went to the six.  So it was
     over some phase period.
               But you're right, the Advisory Committee we were
     talking about doing it fours and twos.  We never proposed to
     do six and twos to the Advisory Committee.
               MR. MAIN:  Never proposed to do six and twos.
               MR. SCHELL:  Six underground.  That's bimonthly
     sampling.
               MR. MAIN:  Well, I think there are some statements
     that was read into the record which reflects the transcript
     that I think that MSHA was at one time talking about the 12
     a year.  And we're submitting that as part of the
     documentation.
               But I disagree that we went from one to six.  I
     think we went in the context of 1995 from four to six as I
     understand the chain of events.  And I think it was a clear
     recommendation from the Advisory Committee to beef up what
     you were doing then.  And then when you got in a position to
     take over the program to do that.  And from what we've seen
     is you went to the beefing up process here and when it came
     time to take over the program that fell fairly short.  And
     some of the recommendations from the Advisory Committee that
     would have implemented that I don't think have been met.
               And I think that's part of our problem here that,
     you know, you beefed it up but when it got to the point of
     taking over the operating sampling which would have gave us
     more frequent sampling, and maybe just the inability of the
     agency to do that, you know, may be what we're faced with.
               We do have a FOIA request in, Marvin, that we're
     still waiting on.  And it does address itself to the amount
     of inspectors, the number of mines, the number of MMUs that
     have existed from 1995 to 2000.  And it's very important
     that we get that document because we'd like to set down and
     take a look at, get a good perspective of what we think the
     capabilities of the government may be.  And we have the
     ability to do some outside influencing as well with the
     budgets of the country.  And we still haven't received that
     yet.  And we do need it as part of our decision making on
     this whole rule.
               MR. NICHOLS:  Okay.
               MR. GRAYSON:  May I add one thing, please?  You're
     right in one instance that frequent monitoring of exposures
     was what was recommended without being specific.  But later
     on if you look at periodic exposure monitoring part of that
     document you'll see that it was suggested that as necessary
     to show that exposures are controlled --
               MR. MAIN:  Yes.
               MR. GRAYSON:  -- is the language.
               MR. MAIN:  And one shift outby in coal mines and
     six shifts sampled out of maybe 900 a year, that's the
     thrust of the proposal, which is not even guaranteed by law,
     is that that's balanced again, Larry.  Because that's what
     the proposal does.
               There's other provisions in the criteria document
     that I'm not going to go into a lot of detail today.  We're
     going to be covering that in the written record, you know,
     on the silica levels that's addressed.  NIOSH had
     recommended a reduction of about half, I think, the current
     time weighted average.  And they also as you look at the
     structure, the full shift sampling, and what's contained in
     the lawsuit calls for miners' exposure over the entire work
     period.
               That's not addressed in the proposal.  That was
     recommended by the Federal Advisory Committee, by NIOSH in
     the criteria document.  And, actually, I think it was a 10
     hour, 40 hour week was maintaining a 1 milligram standard
     over a 40 hour week, 8 hour day which is sort of like the
     encompassing standard that was proposed by NIOSH.  And as we
     see it in many areas the MSHA proposal goes in the opposite
     way.
               MR. SCHELL:  Joe, I don't, I just don't understand
     that.  Could you clarify that.  Because I thought what we
     were trying to do was we clearly tried to expand to looking
     at full shifts.  Now, we didn't look at weeks beyond 40. 
     But in what sense did we go the opposite way?
               MR. MAIN:  In terms of the raising of the
     standards versus the lowering of the standards and having a
     measurement at the end of the day.  If you look at the NIOSH
     components I think it was -- and it was like the Advisory
     Committee component on the recommendations, it was clear
     that there was a drive to lower dust standards in coal
     mines.  There was a drive to measure the miner's exposure
     during a full shift and, as well, to measure that miner's
     exposure over the work week.  And I forget exactly what the
     recommendation is in the Federal Advisory Committee but
     there was a recommendation I think to clearly accomplish
     that.
               And I think when you look at the structure of the
     proposed rule, and particularly when you get to the avenue
     of the backup verification of the plans, you find that on a
     compliance sample you have a 480 minute sample, not a full
     shift, regardless of the shift length.
               You don't have any measurements that really
     reflect, I don't think, the full work week which is
     contained in the lawsuit that we have addressed, the full
     measure of exposure, and not contained in the advisory
     committee or the NIOSH criteria document.
               You have the stand that there's going to be 2.33
     or 1.26 which in my opinion, and I just, you know, 1.22 as
     some miners pointed out, and I agree with that logic, does
     not go in the same direction of the recommendation of the
     NIOSH criteria document.  Really having a .09 I think with
     all the variables applied is laid out in the abstract.
               So I think there is a lot of differences there.  I
     think it does, this whole thing does go in different
     directions.  I think miners were very disappointed when they
     didn't see a standard, Ron, that said we sample you, you're
     working 12 hours, we're going to sample you for that full
     shift and get a full measurement to determine your
     compliance in dust levels.
               MR. SCHELL:  Okay.  And we've asked for comments
     on that.
               One thing I'd like to clarify on the record, and
     the whole basis for this rule, is what we, our goal with
     this rule was to eliminate excursions above the standard. 
     What we found with poor plans and what we found with
     operators doing abating and what we found with multiple,
     averaging multiple samples is that you frequently had
     excursions, like you said on that chart, at 2.4, 3.8.  So
     that the whole thrust was to put a ceiling so that miners
     would not be exposed above the 2 milligram standard, and if
     you want to characterize, 2.33.  But it was to get rid of
     these 2.4's, 2.5's, 3's and 4's, that they would no longer
     be permitted.
               And the underlying concept in the rule is by
     eliminating those excursions, those frequent excursions,
     miners are going to be more protected and disease is going
     to come down.  So that the whole thrust of these rules is to
     lower exposures of miners by eliminating these excursions
     above the standards.
               MR. NICHOLS:  Yeah.  Do you think these two miners
     that are overexposed up here might be disappointed in the
     fact that the three other samples let them average down
     theirs?
               MR. MAIN:  Marvin, we agree with this whole
     averaging thing.
               MR. NICHOLS:  Well, you keep saying the
     disappointment of miners.  If I was those two miners
     overexposed I'd be greatly disappointed in the current.
               MR. MAIN:  And I think that we've been on record
     saying let's do that.  So let's do it.  Okay?
               MR. SCHELL:  But am I making my point, Joe?  We
     are driving exposure levels down through these proposed
     rules by eliminating those excursions.  That's what we were
     attacking in these rules and that's what the preamble says
     that we're attacking.
               MR. MAIN:  But you can't just pull out one piece -
     - and I think that's the center of the problem here -- and
     look at that piece of the rule fixing the, reforming the
     system.  And my fear is that that's a lot of what we've
     wound up with.
               You know, I can tell you, Ron, I've talked to a
     lot of miners who do not believe that sampling them one
     shift or six shifts a year for 480 minutes for a compliance
     sample as the backup on 60 percent production, as I
     understand the policy that would be applied, at 2.33 is the
     kind of system that they expect to have in place to protect
     them.
               Now, in terms of the averaging, you know, Marvin
     we've said it, we agree with you on that, let's do it and
     get it done.  But I think on all these other issues there is
     some real fundamental problems here that just don't address
     the needs of the miners that I think you're failing to
     understand.
               I do understand what you said.  And I think miners
     appreciate having that single sample take the averaging out. 
     But I don't think, and there's testimony has been put on the
     record, these outby miners, I've had a lot of side
     discussions with miners about that, you know, their concern
     is they were, Ron, whenever they spoke with you in January,
     or 1998 when you were discussing the record, that there was
     infrequent dust sampling then in the outby areas.  And they
     were concerned that miners that work in a lot of these areas
     that wasn't even going to get sampled.  And that problem
     needed to be fixed.  We need to change this whole DA thing
     which we haven't had a chance to get into to any degree
     other than I think miners putting it pretty eloquently, you
     know, that that DA outby is not working even under the
     current system.  And we don't fix it by going to 1.
               MR. SCHELL:  Well, my response is we did look at
     the outby DAs.  And, remember, we are sampling, by
     definition we are sampling dust generating points with the
     DA.  And that concept was so objected to by the operators
     that they sued us on the DA concept on the theory that we
     were sampling an area where people didn't even exist.  And
     even the Court of Appeals said that even though it's a more
     stringent way of sampling that that was a reasonable way for
     the Secretary to do it.
               So we didn't, when we drafted these rules we
     didn't try to forget the outby guys.  We went out and we
     took a look at what operator dust exposures were, what our
     dust exposures were.  And I mean we don't need to re-look at
     it, Joe, but what we found is that we're doing a pretty good
     job of controlling outby DAs sampling the areas where the
     dust is being generated.
               MR. MAIN:  The point that miners have made, Ron,
     is you're not sampling where they're at.  And that's one of
     the things I clearly hear from the testimony.  And we'll
     provide more evidence if that's necessary.  But I think that
     the miners have pretty well eloquently stated that for the
     record that you're not getting then while they're out in the
     dust.  And that's the fundamental problem with the outby
     rule.
               I'm going to close off of here and give other
     folks the opportunity to testify.  But I think that, you
     know, it's important to make note that the criteria document
     was noted for government action in accordance with the law. 
     As we view the law we think that the agency is going to
     follow the recommendations of the NIOSH criteria document in
     developing standards of which they specific addressed and
     make changes in.  And we think that's part of the overall
     record here.
               And I will submit this for the record as part of
     our testimony.
               And, also, as promised at the last hearing I think
     anybody that sits on this panel should have read this.  It's
     an official document.  Hopefully, I've got enough copies
     around.  If you're short, please let me know.
               And that document I think as I noted at the last
     hearing was drafted by an investigator reporter that
     received a commendation by the President of the United
     States for just as, as I understand, a sound investigative
     report.  And I challenge this panel to figure out this one
     magic answer of six shifts a year with a plan that's
     verified at those mines represented in that story that
     failed to implement that plan that was verified when MSHA is
     not there and miners who are afraid to speak up because of
     losing their jobs have no other protection in this void. 
     And I challenge this panel, if you don't fix that problem
     you're not going to fix Black Lung in this country.  Just
     take it to the bank.
               And if you don't figure out some way to
     continuously monitor that dust in the absence of federal
     inspectors you're not going to fix that problem.  And if you
     don't figure out a way to do it to the best of your ability
     so that's not tampered with you're not going to fix that
     problem.  And the benefits needed there clearly is, one, is
     continuous dust monitors in coal mines.
               And I challenge you to search in your hearts and
     your mind what you're doing here.  And you answer the
     question I've run through my mind, How is this proposal
     going to fix that problem?  It doesn't.
               And I thank you very much.
               MR. REYNOLDS:  Joe, I just wanted to ask you, I
     asked you in Prestonsburg as well, that I understand that
     your position is that you do support the single full shift
     sample joint proposal with NIOSH and that most of your
     comments are addressed to the MSHA proposal for plan
     verification and compliance sampling for dust?
               MR. MAIN:  The problem --
               MR. REYNOLDS:  Most of your comments are
     addressing those?
               MR. MAIN:  Well, the problem areas of the single
     shift sample rule is not etched really in 70.500.  The
     problem with that rule is found in 70.100, 90.100, if I've
     got my numbers straight.
               And there is some technical issues that we have
     with the proposal which I promised that we would address
     when we get back.  And Jim Weeks is going to go over those
     today.
               MR. REYNOLDS:  It's not really the accurate
     measurement, it's as it might be applied in Part 70 and 75?
               MR. MAIN:  As it's applied as the exposure levels
     are defined, as full shift are defined, all those are in
     Part 70, so on.  Because all the single sample rule does is
     explain the policy of the -- and I keep saying "policy" --
     it's a policy that would now be the rule, that the agencies
     can use the single sample method for the purposes of
     sampling.  And other than few areas that Jim Weeks will be
     addressing a little bit later on I think it's that simple
     mine with the problems, like I say, over in the other parts
     of the regulations.
               In closing, on behalf of the miners, I'm probably
     going to come back at the end and do a little bit more
     clean-up, but in behalf of the miners we urge that MSHA go
     back, come out with a real reform package that addresses all
     the points that miners need and do what's right for the
     miners.
               Thank you very much.
               MR. NICHOLS:  Well, wait a minute, Joe.  I think
     there's some practical pitfalls to that last recommendation
     that you ought to understand and think about.  It's my
     understanding that you generally support single full shift
     sampling and plan verification.
               MR. MAIN:  Concepts of those.
               MR. NICHOLS:  The concept of those.  And that this
     rule contains some improvement.
               I think there's some hurdles to overcome if this
     rule goes back to the drawing board.  One is that somebody
     would re-propose it.  I'm not saying that would or would not
     happen but it's going to take -- it would take weeks or
     months to do that.  So it may or may not happen.
               Let's say it did, then there's a resource
     consideration.  I think to adopt operator sampling sample
     for sample, and I don't want to be held to these numbers
     exactly, but a good ballpark figure would be that Coal Mine
     Safety and Health would need an additional 200 inspectors
     and probably with salary and equipment probably $20 million.
               Now, the agency may or may not be able to obtain
     those funds.  I can tell it took the Assistant Secretary
     three years to get 90 additional positions to go to
     bimonthly sampling.  So to take this back and risk losing
     the improvements, I mean that's, I think those are practical
     hurdles that the agency would have to overcome.
               MR. MAIN:  I've looked at this thing long and hard
     since the proposal come out in the last, what, 32 days.  And
     I tried to think as deep as I could to where we're at.  And
     I keep going back to the recommendations of the Advisory
     Committee which I think was pretty straightforward.
               What it sought to do is to have the agency and the
     operators beef up their sampling and dust control actions. 
     And at the point when MSHA was prepared to do that to take
     over the operator program.  And look at the funding
     mechanism which that's the question I've got is like what
     kind of research and work did the government really do to
     figure out a way to fund this thing beyond the taxpayers
     because that was a clear recommendation of the committee? 
     We're going to be taking another look at that.  But to get
     themself in the position to take this whole thing over.
               There is a concept that is embodied I think in the
     Federal Advisory Committee report that called for an MSHA
     takeover with a quality sampling program, with a mine
     operator still responsible for doing plan verification
     sampling, with increased involvement in several different
     areas of the miners to get them in a position that they've
     strived to get for years and totally deserve, and to have
     continuous dust monitoring as part of this whole scheme.
               And a problem that we find is we ordered the car. 
     We've got the damn thing.  It hasn't got the engine in it
     yet or the transmission in it yet.  It's got the engine in
     it but the diagnostic light that tells you, you know, the
     oil is low is sort of not there yet.  You know, just we
     don't have a whole car yet.  And putting this thing on the
     road as you've laid out that car is not going to run well in
     our opinion.
               And we need to go back and take the time and get
     it done right.  And, Marvin, you know, being the realist
     that I am I know two things: if there is an interest on the
     part of this government to fix this problem you will come
     back with a proposal.  If the interest of the government is
     to let the thing lay there then, you know, I think it's
     going to take a public outcry to force that to happen.
               But once you do something, if you look
     historically I think, and being fair to all these miners,
     you know, let's do not promise one more thing that can't be
     delivered on.  I am not going to do that in my mind.  I'm
     not going to promise them that something will happen if they
     go to another hearing.  I've learned my lesson on that.  But
     I think we need to be fair here.  And I think the government
     needs to step up to the plate, set back down, do a reform
     package that works, that takes care of all these issues and
     get them out there.
               And I think that's the same thing that I'm
     hearing, you know, from the industry as well is that this,
     this thing is so murky with what we have that it's hard for
     people to understand.  It has a lot of shortcomings in it. 
     And we need to just get this thing done and get it beyond us
     or get beyond it.
               MR. NICHOLS:  Okay, thanks, Jim.  And we'll hear
     from the industry next.
               But let's take a 10-minute break and then Bruce
     Watzman will be on next.
               (Brief recess.)
               MR. NICHOLS:  Okay, let's get started back.  The
     next presenter will be Bruce Watzman with the National
     Mining Association.
               Bruce, go ahead.
     STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND
     HEALTH, NATIONAL MINING ASSOCIATION
               MR. WATZMAN:  Thank you, Marvin, and members of
     the panel.  As Marvin said, I am Bruce Watzman, Vice
     President for Safety and Health with the National Mining
     Association.
               As most if not all of you area aware, NMA and its
     predecessor organizations, the National Coal Association and
     the American Mining Congress, have a long history
     participating in MSHA regulatory proceedings.  We have and
     continue to work with both of the agencies represented to
     further the dramatic improvements that have been attained in
     miner safety and health.  While more needs to be done, we
     must recognize the role that miners, your agency and mine
     operators played in achieving the striking reductions in
     fatalities and accidents and injuries that have occured.
               At the same time we must recognize the dramatic
     changes that have occurred and continue to occur in the coal
     industry.  Consolidation and closures have become
     increasingly commonplace as MSHA's own statistics point to
     the monumental reduction in both the number of operating
     mines and miners.
               As we began our review of the pending proposals we
     employed two tests:
               First, would the proposed revisions restore
     confidence in the dust sampling program? and
               Second, would the proposed revisions after all was
     said and done improve miners' health?
               Regrettably, we have concluded that the proposal
     fail both of these tests.  Approximately two weeks ago we
     wrote to the Assistant Secretary requesting a 120-day
     extension of the period to submit comments on these
     proposals.  The Assistant Secretary, pointing to the
     industry's presumed familiarity with the proposals and the
     pending writ of mandamus filed by the UMWA, granted a 14-day
     extension.  
               This extension, while appreciated is nonetheless
     woefully inadequate.  It must be remembered that the agency
     has had this matter under consideration for several years
     yet the regulated community is afforded merely 60 days to
     comment on the hundreds if not thousands of pages contained
     in the rulemaking record.
               Throughout the three public hearings the agency
     have conducted miner after miner has pointed to the
     inadequate time provided to read and fully comprehend what
     many consider to be the most significant proceeding to
     impact the underground coal industry since passage of the
     Act, yet the agency granted only a 14-day extension. 
     Throughout the public hearings that the agencies have
     conducted miner after miner has pointed to the difficulty
     understanding the proposal given the new, plain English
     format.  Yet the agency has done little to address those
     concerns.
               The industry has long sought performance rather
     than prescriptive regulations, yet the proposals are in
     their current form neither.  They are too subjective and too
     open-ended to numerous and ever-changing interpretations. 
     We take little comfort knowing that MSHA will develop and
     issue policy guidance documents to supplement a final rule.
               As you are aware, we have historically opposed the
     agency's attempts to regulate through policy.  We will
     continue to do so should this be finalized in its current
     form.  Revisions to health inspection manuals cannot take
     the place of regulation.  Representations in the preamble
     cannot substitute for regulatory language.
               As numerous court decisions arising under the Mine
     Act and other federal statutes have found, an agency is not
     bound by policy statements.  And those who rely on such
     statements do so at their own peril.
               The D.C. Circuit Court's decision in the Cathedral
     Bluffs case is a perfect example of that principle.  In this
     case the company cited to an MSHA policy statement as
     support for their position.  The Court held that policy does
     not have the same force and effect as the law or regulations
     and ruled against Cathedral Bluffs.  The subject, open-ended
     nature of the proposals leads us to conclude that it will do
     little to restore confidence in the dust sampling program
     and may well exacerbate an already difficult situation.
               And I would say that the colloquy that took place
     earlier between members of the panel and Joe Main did little
     to soothe my concerns.?
               I would be remiss, however, if I did not recognize
     that many of the changes contained in the proposal have long
     been sought by the industry.  We support MSHA assuming
     responsibility for compliance and abatement sampling. 
     Similarly, we support MSHA's recognition at long last that
     supplied air helmets can and must play a role in protecting
     a miner's health.  We do not believe their application
     should be restricted in the manner proposed and will provide
     additional comments on this point prior to the close of the
     comment period.
               These provisions notwithstanding, we share the
     miners' belief that the proposal should be withdrawn.
               We're at a critical time in the continuum of
     respirable dust sampling.  Our cooperative efforts have us
     on the verge of introducing new technology that will enable
     miners to know on a real time basis their individual dust
     exposure.  No longer will we have to rely on subjective
     sampling technology or argue about laboratory variability,
     precision or accuracy.  No longer will we have to await days
     to get the results of sampling.  Rather, miners will be
     empowered with the knowledge required to prevent exposure to
     dust above permissible levels.
               Rather than committing resources to apply bandaids
     to an antiquated dust sampling system, our collective
     resources should be committed to advancing engineering
     controls.  Our collective resources at that point will be
     committed to advancing engineering controls to reduce dust
     generation and exposure.  
               Quite simply, the respirable dust standards as we
     know them today, either in their current form or as MSHA
     seeks to revise them, will become obsolete.  We must not, we
     cannot allow ourself to brand because of an arbitrarily
     determined regularly schedule the introduction of this
     technology.  Finalization of the current proposals whose
     benefits are minimal at best must not thwart the development
     and introduction of this new technology.
               In 1996 President Clinton campaigned on a platform
     of a bridge to the 21st Century.  Personal continuous
     readout dust monitors are our bridge to the 21st Century. 
     Our collective interests would be better served by MSHA
     committing the resources they are using to finalize these
     regulations to the development, the introduction of personal
     dust monitors into the mining environment.
               Thank you.
               MR. NICHOLS:  Thank you.  It's long been the
     position of the industry that MSHA take over the dust
     sampling program.  I know you haven't had time to fully
     digest all these rules but what would an MSHA takeover look
     like from an industry point of view?
               MR. WATZMAN:  Marvin, we support, as I said, the
     MSHA assumption of all compliance and abatement sampling. 
     But when we looked at this proposal we couldn't look at in
     terms of cherry picking this over here and this over here,
     we looked at the proposal as a whole.  We looked at it in
     terms of our historic position in opposition to the use of
     single shift samples for compliance purposes today given the
     current state of the technology we use for dust sampling.
               On more than one occasion the National Mining
     Association and the Bituminous Coal Operators Association
     has written to the Assistant Secretary.  We outlined through
     those letters what we believed would be the elements of a
     new dust sampling program.  We believe taken as a whole it
     would improve the situation that exists today.  The current
     proposal doesn't embrace all of that.
               We tied the use of single shift sampling to the
     availability, commercial availability of a commercial
     readout continuous dust monitor.  So while we support, as I
     said earlier, MSHA assuming compliance dust sampling, we're
     not going to allow ourselves to be put in the position of
     looking at any individual element of this in a vacuum.  We
     have to look at in terms of the whole proposal that's before
     us.
               MR. SCHELL:  Bruce, is the industry's position
     that we're in a posture where we can move forward with
     requiring continuous monitoring rulemaking at this point?
               MR. WATZMAN:  No, it's not, Ron.  As you know, the
     technology is not there today.  We believe we're very close. 
     We believe that we've overcome some of the roadblocks that
     have been put before us.
               As you know, the industry, both the industry and
     the miners when we started talking about a personal
     continuous dust monitor recommended one particular
     prototype.  The agency, MSHA, chose to go a different
     direction.  Even though the stakeholders recommended the
     development of one prototype.  NIOSH has picked up the ball
     on the other prototype.  And that set us back some time. 
               But from what we understand we're closer than
     we've ever been and we think everyone's interest would be
     better served by awaiting the test results of the
     prototypes.  If they work as we all hope and believe they
     will work then we're all going to be better off, the miners
     are going to be better off down the road.  We're not going
     to be dealing with gravimetric sampling.  We're not going to
     be fighting with Tom over laboratory weighing systems and
     over precision and reliability, we're going to empower
     miners to know the dust they're exposed to at that
     particular moment so that remedial actions can be taken to
     lower those dust levels, not a week later, not five days
     later, not three days later, but when the overexposures
     occur.
               MR. HEWETT:  May I ask a question regarding those
     overexposures?
               MR. WATZMAN:  Sure.
               MR. HEWETT:  I'm with NIOSH so I have somewhat of
     an interest in the continuous dust monitors.  A dust monitor
     during a shift could give you two pieces of information:
               1) at that particular moment the concentration is
     above whatever standard there is;
               2) that given cumulative exposure up to that point
     the end of shift exposure is likely to be above the
     standard.
               What does industry -- what would industry want the
     section foreman to do if the concentration at that moment's
     above the standard and what would the industry want the
     section foreman to do if the end of shift projection is
     above the standard?
               MR. WATZMAN:  I think you're a little ahead of
     where the discussions are.  However, having said that I
     think there are a multitude of options that might be
     available to the section foreman.  He could at that time
     review the engineering controls that are in place to see if
     all the water sprays are operating as one would hope.  He
     can check the ventilation.  He can make the determination to
     employe administrative control to remove that individual so
     that their end of shift exposure is not above the allowable
     level.
               But the fact is is that that's a determination and
     those are actions that can be taken at that point rather
     than having this compliance determination be made at some
     later point when the overexposure has either continued
     unaddressed or whether there is not an overexposure.  I mean
     that has been one of the biggest problems we have had with
     the dust sampling, as you all know, the lag time between
     when the samples are taken and the ability to take remedial
     action.  That serves no one's interest.  Mostly, most
     importantly it doesn't serve the miner's interest.  A
     continuous readout tool, a continuous personal dust monitor
     will if it works as we hope provide us the ability to take
     those actions at that time.
               MR. HEWETT:  If at that time, say halfway through
     the shift, that particular miner's exposure has according to
     the direct reading instruments reached and exceeded the
     current dust standard what should the section foreman do
     with that miner or over the section in general?
               MR. WATZMAN:  I think I just answered that.  I
     mean my response was he can review the engineering controls
     that are currently employed making sure that they're all
     operating at optimum levels.
               MR. HEWETT:  This question is different.  I
     understand you're repeating your earlier answer.  The
     question is --
               MR. WATZMAN:  That's because I think you're
     repeating your earlier question and I thought I responded to
     it.
               MR. HEWETT:  Thank you.
               MR. NICHOLS:  We've had a lot of testimony in the
     two previous hearings about this policy versus the rule
     mostly, I think, as it relates to the sampling requirements
     from MSHA.  If that were tightened up and further explained
     or consideration that it be put in the rule, would that move
     you any closer to favoring these rules?
               MR. WATZMAN:  I don't know, Marvin, because I
     think it would require a fundamental re-writing of the
     rules.  One of the responses that was given to a miner's
     question, I think it was at the Morgantown hearing, was
     we're rewriting the -- we're currently rewriting chapter 1
     of the health inspection manual and we'll address that in
     that rewrite.  
               That's not the way regulations are written in our
     mind.  We can't -- those are rewritten, they're written by
     this current administration, they'll be written by another
     administration, they'll be rewritten by, reviewed by another
     assistant secretary down the road.  You know, I guess one of
     the discomforts we have, and I understand the move and we're
     supportive of the move to write regulations in plain
     English, but I guess one of the questions that was asked in
     the preamble was What are your views on the new format we've
     taken?  And it is in writing these regulations a question
     and answer format as opposed to what was fairly black and
     white historically.  And I think it is such a dramatic
     movement of the pendulum away from what we're accustomed to
     that it has raised as many questions as it has answered.
               I will tell you that I sat in a meeting of
     industry representatives who deal with dust control plans,
     who deal with ventilation, and there were numerous
     interpretations given to various sections here by people who
     have dealt with this for years and years as to what that
     really meant in terms of agency enforcement policy.  It's
     extremely difficult, given that, to respond in a concrete
     manner.
               MR. SCHELL:  Can I?
               MR. NICHOLS:  Go ahead.
               MR. SCHELL:  Bruce, one of the -- I think we'd all
     like to be where you are and have a continuous monitoring. 
     But one of the things that's motivating us, and we talked
     about it here, is we do continue to have miners that are
     overexposed above the 2 milligram level.  And we put up the
     chart that shows what happens with averaging.  Single sample
     was meant to address that.  Plan verification, I know on
     discussions that we've had earlier on the rule we all agreed
     that even if you have continuous monitoring you're going to
     need to continue to have plans where our proposal was
     attempt to develop quality plans.  But the thrust being, and
     the Advisory Committee addressed this too, we have got to
     find some way to eliminate these excursions above the
     standard that overexposed people. 
               And to say go back and start again, another way of
     saying that is to continue to have miners overexposed until
     we get that.  I'd be interested in specifically what the
     industry's views are on the plan verification approach that
     we've taken.  I think I know what it is on single sample,
     but if you want to comment on that I'd appreciate hearing
     that.
               MR. WATZMAN:  Ron, we're going to submit detailed
     comments by the close of the rulemaking.  I will tell you
     that I'm in the process, we're in the process right now of
     drafting them.
               What we are going to attempt to do, having said
     that we believe that this should be withdrawn, we feel we
     have an obligation to respond in detail to the proposal
     which we will do.  So we will submit to the best we can, and
     I have to preface it by saying given the manner in which
     it's written we're going to do the best we can to try to
     provide you with revised regulatory language even though
     we're struggling with the regulatory language as it's
     written.  But we're going to do that.
               And I'm really just not prepared to go through it
     section by section at this point.  I mean I've said that we
     support MSHA assuming all sampling.  We are pleased that the
     agency has recognized for the first time the use of air
     helmets where we have exhausted engineering controls.  We
     think what you have proposed is far too restrictive.  We
     think there are applications where the same criteria used
     for longwall permission may very well apply to other
     situations as well, probably not as broad in nature,
     probably not as frequent, but we think it's wrong to exclude
     the use of so valuable a tool through these regulations
     because, you know, we probably won't have the opportunity to
     revisit this again.
               You know, there are times on continuous miner
     sections where we may very well need this tool.  And we
     think it is wrong for the regulation as it's written to
     preclude that application at all. 
               You know, in many ways this is kind of tantamount
     to what the agency has finalized and is about to implement
     in terms of noise controls.  You know, you didn't limit the
     application of personal protection in terms of noise
     controls.  There is the pea coat theory, the pea coat
     concept and practice where once an operator has exhausted to
     the agency's satisfaction the availability of engineering
     controls then there must be a means to protect the miner. 
     Because that's the overall objective that we're all striving
     to get to.  
               If we can get there through engineering controls,
     far the better.  We all support that.  But where we can't,
     the objective at the end of the day has to be protecting the
     miner's health.  Why the agency chose in dust to limit so
     dramatically the application of a protective, the use of a
     protective device so dramatically in terms of dust but
     didn't do so in noise is something that quite honestly we're
     trying to understand.  We think it's the wrong approach.
               So these are some of the issues that we'll get
     into in more detail in our written comments.
               MR. NICHOLS:  Well, I think the experience with
     dust control is that in all areas except one, and that's
     working downwind of the shear operator, that controls have
     been demonstrated that will work and engineer away the
     problem.  With noise that's not the case.  But we don't have
     that history of compliance with the noise rule like we do
     the dust rule.
               The key is not so much that a control does not
     exist to control dust in all other areas of the mine, is
     that the controls are not maintained.
               MR. WATZMAN:  Marvin, as a general statement I'd
     say you're probably correct.  But I don't think you can
     generalize across all mines and all mining systems and all
     mining applications.  Every mine is different.  I mean we
     have to accept that.  At times mines have to do things that
     are different than the traditional practices in mines.
               To say that we're not going to protect miners
     because we've excluded the use of a protective device in
     those situations to us is just ill advised.  You know, maybe
     your statement is right generally, but we think that you
     shouldn't exclude it, make a rubber stamp exclusion and say
     we're only going to provide the use, allow the use in this
     very limited application.
               I would argue with you that you've restricted it
     to such a degree that you're probably not going to see the
     use of supplied air helmets given how dramatically you've
     restricted it.  And if that's what the agency's objective
     is, was through this, well, then I think that we may well
     say that you've accomplished what you've set out to achieve. 
     But we just think it's the wrong approach to take.
               MR. NICHOLS:  Tell me again why you're opposed to
     single shift?
               MR. WATZMAN:  We don't think that the agency --
     and I will prepare myself for the salvo from Paul Hewett and
     Jon Kogut and others.
               MR. NICHOLS:  We'll protect you.
               MR. WATZMAN:  Please protect me.
               We don't think that the agency, and I must say one
     of the things you've done that has made this easier for me
     personally is taking all of the comments from the single
     sample, the previous single sample proceeding and made them
     a part of this rulemaking.  It makes my task a lot easier. 
     We still don't believe that the agency has adequately
     accounted for all the sources of variability that exist both
     in the mining environment and the analytic practice,
     process.  And, therefore, that a single shift sample as
     currently comprised under the scenario that the agency has
     laid out is flawed.
               And we will provide additional comments on that. 
     I know that you have added some new studies into the record
     since the last proceeding.  We're looking at those currently
     and developing some comments.  And we'll provide more on
     that.  And I'd just like to leave it at that on that subject
     for now.
               MR. NICHOLS:  Okay.  And we had these two periods
     where we used single shift in coal.  One was maybe '92-'93
     and then up until the Court of Appeals.  Do you have any
     knowledge of any great burden that put on the coal industry
     during those two periods?
               MR. WATZMAN:  No.  I have no information about
     that period.
               MR. NICHOLS:  Okay.  Does the industry agree with
     this averaging scheme that will allow a couple miners to be
     over, three to be under, and at the end of the day all five
     are under?
               MR. WATZMAN:  Marvin, we don't want to see any
     miner overexposed.  Our objective has been and will always
     be to maintain dust levels below the applicable standard. 
     However, I think we have to recognize that there's somewhat
     of a difference in view between the agency and the industry
     in this regard.  Dust is a chronic exposure.  The standard
     was predicated on the belief that a miner exposed eight
     hours a day, five days a week for a normal 45-year working
     career would not develop coal worker's pneumoconiosis.
               As far as I know, and correct me please if I'm
     wrong, there is no agency or independent body yet who has --
     and I would say domestic because I'm not that familiar with
     international, but as far as I know and the last I checked
     there is no body that has recommended a short-term exposure
     limit for exposure to coal dust.  Am I -- Go ahead, Ron,
     what was that?
               MR. SCHELL:  Yeah, I think the Congress did.  I
     mean the law --
               MR. WATZMAN:  The law is eight hours, 2
     milligrams.
               MR. SCHELL:  No, the law is that no miner should
     be exposed to more than 2 milligrams on any shift.  That's
     the law. 
               We constantly get into this debate about the long-
     term exposure versus the short-term exposure.  But I'm
     telling you the law says on any shift, it doesn't say over a
     period of time.
               MR. WATZMAN:  I will leave it to your lawyers and
     our lawyers to argue over what the law says and what the
     Congress intended.  I'm not going to get into that debate. 
     I don't think it's -- I don't think it furthers anything.
               All I'm saying is is that we view this differently
     than the agency does.  I was trying to respond to Marvin's
     question and present the difference in how we view this as
     opposed to the agency.  Do we want to see any miner
     overexposed?  Absolutely not.  Do we want to have the
     availability to use every single tool to prevent that
     occurring, from occurring?  Absolutely, we do.  That's why
     we support and are glad that with -- that to the limited
     degree you had you've recognized the use of supplied air
     helmets.
               Do we want to get to the point where miners know
     on a real time basis what the exposures are?  Absolutely. 
     The industry has committed to work with the agency, with
     NIOSH.  As soon as the prototypes are available for taking
     underground, much like we provided mines to work on the
     continuous machine-mounted monitor, we will make the mines
     available to test the personal readout continuous dust
     monitor.  And we're just looking forward to that day.
               MR. NICHOLS:  What would be your best guess as to
     how long it would take to develop that technology?
               MR. WATZMAN:  I think there are people who are far
     better equipped than I am to respond.
               MR. NICHOLS:  Just a guess?
               MR. WATZMAN:  I don't know, Marvin.  And I'm not
     going to venture a guess that someone's going to say, boy,
     have you underestimated it or are you out to lunch?  I mean
     maybe Dr. Grayson has a better sense of that sine NIOSH is
     one of the agencies working toward the development of that.
               MR. NICHOLS:  But we're not talking months, we're
     probably talking years?
               MR. WATZMAN:  I don't --
               MR. GRAYSON:  I would say quite likely it won't be
     months because in any research project there are bugs that
     have to be removed and iterative steps.  And, you know, we
     want to move it along as quickly as possible.
               MR. WATZMAN:  As do we.
               MR. GRAYSON:  But we have to see indeed that it
     does work.
               One question of clarification if I may, Bruce. 
     I'm wondering if you are including in your definition of
     sources of error spatial variability of the dust cloud or
     not?
               MR. WATZMAN:  Yes.
               MR. GRAYSON:  You are?
               MR. WATZMAN:  Yeah.  And I know we disagree.  And
     I will accept that we have a disagreement on that.
               MR. HEWETT:  Maybe I can comment on that a little
     bit further for the benefit of the audience although I know
     that we disagree.  Won't be much of a resolution of that. 
     But in this debate between lawyers, your lawyers, the
     government lawyers regarding specific interpretations of the
     '69 and later the '77 Coal Mine Safety and Health Act I do
     hope ours prevail.  
               Not as a lawyer, I read it and look at the plain
     language in it and it clearly indicates that there is a
     phased-in period incurred in reductions of exposures with
     the goal of reaching a single shift measurement and a 2
     milligram standard.  I want to point out that at the time of
     the '69 Act the only standards of exposure limits in the
     U.S. were those recommended by the American Congress of
     Industrial Hygienists, the TLVs.  Those then and not were
     single shift limits.  Regardless of whether the eight -- or
     if it was defined as an 8-hour limit that could be for
     chronic disease eight, it could be something that manifests
     its effect over an 8-hour period.
               For those that have short-term limits you probably
     want something that has an instant, almost instantaneous
     effect.
               Coal dust standard implemented by, promulgated or
     recommended by the TLV committee was a single shift limit. 
     the OSHA limits have always been single shift limits.  There
     is nothing wrong with a single shift limit producing control
     and exposure to something that's nominally a chronic disease
     agent.  And that has been the case since the inception of
     the TLVs, since the '50s, '60s, up to today.  And so there
     is nothing inconsistent with what MSHA is trying to do with
     the coal dust standard as required by Congress in '69.
               So I just want to point that out that single shift
     limits have been used for along time.  The agency draft
     recommends no long-term standards.  OSHA recommends no long-
     term standards.  NIOSH I think for radon gas that's the only
     long-term standard we have.  But all the others are single
     shift limits.  Even if you have a chronic disease agent you
     have to control on a day to day basis.  That's why you have
     an 8-hour limit.  The Europeans use it, the British use it,
     every industrialized nation in the world with the exception
     of a few on a few substances, like vinyl fluoride in Europe,
     use single shift limits.
               So there's only a few people out in left field on
     this issue.  And I'll leave it up to you to figure out who
     they are.
               MR. NICHOLS:  Well, plus a good chunk of your
     constituents are subject to it.  The metal and non-metal
     folks have used single shift since I started with them in
     1971.  And we were using single shift in 1971, so a good
     number of operators you represent live with this in the
     metal and non-metal industry.
               MR. WATZMAN:  Regrettably, we haven't prevailed in
     court to overturn that for the metal/non-metal sector yet.
               MR. SCHELL:  Bruce, and you may want to answer
     these just in terms of understanding where you're coming
     from on continuous monitoring.  The way I interpreted your
     view is that you would see continuous monitors as something
     that would be used daily or on each shift.  And would you
     see it being used for compliance purposes?  Have you talked
     about that?
               MR. WATZMAN:  We haven't talked about that, Ron. 
     And I think you're probably getting a little ahead of the
     game in terms of elements of a protocol as to how these
     would be used in the mines.  I mean we haven't gotten that
     far along.  You know, we didn't in terms of the continuous
     machine mounted, although we were further along in that one. 
     We're clearly not that far along in terms of it on this as
     to whether, you know, what miners, what applications, what
     frequency.  I mean we just haven't had those discussions.
               And, you know, I'm sure we will have those
     discussions with you and representatives of the miners as
     this proceeds.
               MR. SCHELL:  And if I come back and ask a question
     again, you've answered it and that may be it, I was just
     looking for a feel of this panel.  Plan verification is a
     key.  And there were some key elements of it, plan verified
     at high level of production, plan verified using only the
     parameters listed in the plan, plan verification over the
     entire shift.  Can you give us a sense of where the industry
     is coming out on this at this point, Bruce?
               MR. WATZMAN:  No, I can't, other than as I said
     previously, we'll provide some detailed written comments on
     those elements.  You know, where we think that it is
     appropriate that the provisions be revised we'll provide
     suggested language.
               MR. NICHOLS:  We've got a list of questions we
     want to ask about the airstream helmets and other protective
     devices.  Who is the best one to ask these two of the
     industry, you or?
               MR. WATZMAN:  I'm missing what you're getting at,
     Marvin?
               MR. NICHOLS:  Well, generally we've had a lot of
     testimony that they're too heavy, they don't work, they fog
     up.  Miners use rags and whatever for filters.  And are you
     aware of any major problems with the airstream helmets
     currently in use?
               MR. WATZMAN:  I know that there was a problem, as
     we've had discussions with NIOSH regarding the new filters
     that are used in them, the hepa filter as opposed to the
     filter that was used previously.  I know that has -- there
     are some problems that have resulted from these filters. 
     But I also know that there are efforts underway to try to
     come up with a resolution of that.
               Prior to NIOSH changing their requirements in
     terms of the consistency of the filter element I am unaware
     of the concerns that you've talked about.
               MR. NICHOLS:  Okay.  Okay, Bruce, thanks.
               The next presenter will be Randy Tatton with
     Energy West Mining Company.
     STATEMENT OF RANDY TATTON, ENERGY WEST MINING COMPANY
               MR. TATTON:  Good morning, Mr. Chairman, other
     members of the panel.  We appreciate the opportunity that
     we've been given today to provide testimony on the
     provisions of this proposed regulation.  Like you said, I'm
     Randy Tatton.  I'm Manager of Health and Safety at Energy
     West Mining Company.  And I submit this testimony on behalf
     of Energy West Mining Company that operates two large
     underground coal mines in southeastern Utah.  And this
     business employs about 500 miners and we produce
     approximately 8 million tons of coal annually.
               It's our objective to provide each employee with a
     safe and healthful workplace and to achieve excellence in
     our business activities through continued improvement. 
     First and foremost I'd like to acknowledge that Energy West
     Mining Company is in full support of the position that Bruce
     Watzman has articulated on behalf of the National Mining
     Association and its members.  We especially stress that more
     time is necessary for interested parties to make proper
     comment on this very critical proposal and also agree that
     the current proposal should be withdrawn.
               I'd like to make some additional comments and
     views about powered air-purifying respirators, or PAPRs,
     that must be considered in a new proposal.
               As the agency is aware, Energy West Mining Company
     submitted a petition for rulemaking to amend 30 CFR Part 70,
     Mandatory Health Standards for Underground Coal Mines, to
     allow the use of airstream helmets or other NIOSH-approved
     PAPRs as a supplemental means of compliance with respirable
     dust standards.  The petition was submitted to the agency on
     September 10, 1997.  But MSHA to date has not issued a
     formal determination on the merits of this petition. 
     Instead, the agency has contended that the use of PAPRs
     would be addressed as part of this present regulatory
     effort.
               Energy West Mining Company acknowledges that MSHA
     has incorporated provisions for PAPRs into this proposal and
     applauds the agency for finally recognizing that this
     technology does play a significant role in improving the
     health of our miners.  Our assessment of this proportion
     revealed that the agency has not included many of the
     provisions of our petition for rulemaking but has only
     cherry picked certain proponents of that.  The proposal in
     its current form would only serve to discourage mine
     operators from providing PAPRs for their employees because
     it is so limited in its applicability.
               Both Part 70.212 as we presently understand it
     only allows for the use of PAPRs to supplement engineering
     controls for miners who work downwind of the designated
     occupation 044, the longwall operator.  We believe very
     strongly that this concept needs to be changed because it
     discourages mine operators from seeking approval to use this
     valuable and proven tool to protect the health of miners.
               Section 70.211 of the preamble states that while
     it may be difficult to make the environment safe for some
     miners working on the longwall face under certain mining
     conditions, MSHA believes that an acceptable work
     environment can be provided for the longwall operator
     designated occupation 044 and other miners on a continuing
     basis.  Generally this statement is accurate, but it is an
     absolute fact that in some mining conditions it is just as
     or more difficult to make the work environment safe for the
     tailgate shear operator as it is for miners who are required
     to work downwind of that designated occupation.
               In many cases mining conditions require the
     tailgate shear operator to be in by the shear which is the
     primary dust generation source.  We emphasize very strongly
     that regulations must not, as presently written, limit or
     exclude the enhanced health benefits that PAPRs can provide
     for miners working at that designated occupation 044 or
     others.
               It's been our experience at Energy West Mining
     Company that PAPRs are accepted and used by continuous miner
     operators, shuttle car operators, roof bolters, haulage
     equipment operators, masons and even fire bosses.  This
     regulation should not limit the use of PAPRs to only
     specific longwall applications but should be encouraged for
     the use in all underground mining applications.
               Energy West Mining Company plans to submit
     additional written comments and information prior to the
     closing of the post-hearing comment period.  This concludes
     our testimony.  And we appreciate the opportunity we've been
     afforded to testify today.
               MR. NIEWIADOMSKI:  Randy, can I ask a question?
               MR. TATTON:  Yes, sir.
               MR. NIEWIADOMSKI:  What's been your compliance
     record since you moved to the 060 designated occupation?
               MR. TATTON:  I'm probably not the best person to
     answer that question.  I am somewhat distanced from that now
     and I have not looked at those samples and records and
     couldn't respond accurately to that question now, George.
               MR. NIEWIADOMSKI:  I mean when you submitted that
     proposal the concern was you were, your field was 044 at
     that time?
               MR. TATTON:  Yes, it was.
               MR. NIEWIADOMSKI:  And you were concerned about
     moving to 060 because you felt, I believe, that you may not
     be able to control that environment using existing
     engineering controls; is that correct?
               MR. TATTON:  Yes.
               MR. NIEWIADOMSKI:  All right.  It appears from
     some of the data that I've seen that you've been somewhat
     successful in controlling that environment?
               MR. TATTON:  I think that would be an accurate
     statement.  We have.  Although I think you'd also find that
     as we have in the past we have had situations or bouts where
     we've had problems with compliance.
               MR. SCHELL:  Randy, we've heard a lot of testimony
     from the miners over the past two public hearings about
     their real concern that once the agency allows the use of
     the PAPRs that any incentive for operators to find new
     engineering controls will be eliminated and that, in effect,
     the development of engineering controls will cease and that
     the use of these instruments will be expanded to other
     areas.
               Now, I think we all come to the point that
     engineering controls have to be primary and we have to
     continue to work on engineering controls and that PAPRS are,
     in our view at least, a poor substitute for engineering
     controls.  But how do you respond to the question of where
     is the incentive for mine operators to develop engineering
     controls if we've allowed the use of PAPRs?
               MR. TATTON:  Well, I think if you talk about our
     proposed petition for rulemaking or we talk about this
     current proposal you'll see that in both cases each one of
     those documents endorse or even insist on all engineering
     controls before there is any consideration given for PAPRs
     to be used for compliance.
               We at Energy West have for many years now worked
     very hard to include all of the state-of-the-art and the
     most recent engineering controls into our mining processes.
     And certainly I wouldn't see us doing anything any different
     if there are new engineering controls available.  And we'd
     be more than willing to try those and use them if they work.
               MR. NICHOLS:  Can you give us some more examples
     as to where you have problems that you can't engineer away?
               MR. TATTON:  Oh, one particular example that would
     come to my mind -- and I will direct this more to a
     situation where we talk about controlling the dust exposure
     for that designated occupation 044 -- and that would be a
     situation where we're losing top and we're losing rock from
     the top.  That would require that that person sometimes
     would have to be in by the location of that shear to do what
     he has to to try to correct that problem, catch the top and
     so on.  And in those situations it becomes very, very
     difficult to comply.
               MR. NICHOLS:  Well, I think the rule recognizes
     that situation, doesn't it?
               MR. TATTON:  No, it doesn't recognize the use of
     PAPRs at any time for designated occupation 044.
               MR. NICHOLS:  Okay.  Thanks.
               MR. SCHELL:  Randy, just one other -- Go ahead,
     Paul.
               MR. HEWETT:  I can recall doing some work for
     NIOSH in both the local conventional mine, local longwall,
     and not liking the experience all that much.  And I was
     considering based upon the testimony last week what it would
     have been like to have been in those mines wearing an
     airstream helmet, adding an additional weight to both my
     head and my body.  Your particular mine is a western mine I
     take it and very high top?
               MR. TATTON:  Yes, it is a western mine.  It is not
     really high top.  Our average coal height would be between 7
     and 8 feet.
               MR. HEWETT:  So everybody has an opportunity to
     stand upright in these mines?
               MR. TATTON:  In most of the cases, yes.  There are
     times when heights would limit standing up to some degree. 
     But that would be -- that wouldn't happen very often.
               MR. HEWETT:  Wouldn't happen very often.
               What would be your opinion or your professional
     opinion regarding height limited situations and the use of
     PAPRs and other type similar respirators?
               MR. TATTON:  Certainly as heights decrease and
     spaces become more confined it becomes more difficult to
     wear that, that apparatus.  I've been a longwall foreman. 
     I've worn the helmet myself for a lot of years during my
     career, and have found that you can do that.
               That question may be better for some of the people
     that are coming behind me that have used the device.
               MR. HEWETT:  Thank you.
               MR. GRAYSON:  Got a question, Randy.  With respect
     to the use of PAPRs in your mine in what condition are they
     being used?
               Can you hear me?
               MR. TATTON:  Yes, I can.
               MR. GRAYSON:  In what position are they being
     used, in an as-approved condition or in a modified
     condition, even if it's the miners who may modify it at
     times?
               MR. TATTON:  I would have to answer honestly and
     say they are being used in a modified condition.  Miners
     some, you know, have typically removed the shroud, or I
     don't know the term for it.  Of course, when you say are
     they properly used, I think NIOSH to that would mean do they
     keep the face piece down at all times?  No, they don't. 
     They raise the face piece to communicate and so on.
               MR. GRAYSON:  Okay.  Have they had the problem
     with fogging up?
               MR. TATTON:  We've had that problem recently,
     Larry, since we've been required to use the new version of
     the filter.  There has been what seems to be reduced flow in
     the unit and that has also resulted in more fogging.  And
     we've worked real hard to try to -- with 3-M to try to
     resolve that.
               MR. NIEWIADOMSKI:  Randy, I have a couple follow-
     up questions that I didn't have a chance to ask the first
     time that deals with production.  You, what is your view
     about approving under the proposal verifying the plan under
     the VPL, which is the verification production limits?  Do
     you feel that if in fact that was implemented would you be
     able to control the 060 with engineering controls?
               MR. TATTON:  You know, I think at this time I'd
     defer those comments that I have on that to our written
     comments.  We're still looking at that issue and really not
     prepared to talk about that one at this point.
               MR. NIEWIADOMSKI:  My last question deals with
     production during bimonthly as compared to non-sampling
     periods.  Is it the same or is it less than during non-
     sampling periods?
               MR. TATTON:  I would think it's the same.  You
     know, that we --
               MR. NIEWIADOMSKI:  The same.  It's the same?
               MR. TATTON:  Yeah.  Thank you.
               MR. NICHOLS:  Thank you, Randy.
               Let's take a 10-minute break.  The next person up
     will be Jim Stevenson with the UMWA.  So we'll start with
     Jim at 11:10.
               (Brief recess.)
               MR. NICHOLS:  Okay, let's have a seat here and get
     started back.  Okay, let's get started back.
               Let me say one more time for the record, I
     continually catch myself saying when we're talking about
     single full shift sampling, I continually catch myself just
     saying full shift sampling.  I think it goes back to my
     metal and non-metal days when you said full shift it meant
     single full shift sampling.  So the record will be clear
     that I'm talking about the proposal in front of us it's
     single full shift sampling.
               Okay, Jim Stevenson.
     STATEMENT OF JIM STEVENSON, INTERNATIONAL UNDERGROUND SAFETY
     REPRESENTATIVE, UNITED MINE WORKERS OF AMERICA
               MR. STEVENSON:  My name is Jim Stevenson.  I'm the
     International Underground Safety Rep for the United Mine
     Workers.  I've been in that position for the last eight
     years.  Have a total of 31 years of mining experience, 24
     years at Sunnyside underground, 14 of them spent on the
     longwall, 11 years as a shear operator.
               I'm going to just do a summary of what we think of
     this new rule, 30 CFR Part 72, determination of
     concentrations of respirable coal mine dust.  The proposed
     rule is only one paragraph found on page 42122 of the
     Federal Register notes.  The rule states that MSHA may,
     doesn't say will or shall, it says may use a single full
     shift measurement to sample to sample miners for exposures
     to coal mine dust.  The preamble explaining the rule
     implemented in the proceeding, 54 pages of fine print.  The
     rule applies to all surface and underground mines.
               The second proposed rule under 30 CFR Parts, 70,
     75 and 90, Verification of Underground Coal Mine Operators'
     Dust Control Plans and Compliance Sampling for Respirable
     Dust, proposed rules on pages 42177 through 42185, was 55
     pages of fine print in the preamble.
               The MSHA proposed rules would in fact eliminate
     the mine operator dust sampling program and all dust
     operator -- all operator dust sampling responsibilities,
     eliminate the procedures for dust samplings with miners in
     areas of the mine including the specific frequency and
     procedures for sampling that's to be done, increase dust
     exposure compliance levels miners may be exposed to,
     substantially reduce dust sampling frequency, allow
     operators to use respiratory protection in lieu of
     engineering controls, establish plan verification
     requirements of coal mine dust controls, allow MSHA to use
     single shift sampling method with limited number of miners
     exposure sampled for the full shift, revise the core
     sampling procedures, establish procedures allowing
     administrative controls to be used as an alternative to
     engineering controls for compliance, increase the miner
     operated posting of dust information, increase mine
     ventilation plan information and revise Part 90, miner
     requirements.
               The preamble also discussed miners' participation
     in the sampling, continuous dust monitoring and self-
     sampling responsibilities and sampling procedures.  These
     matters, however, are not contained in the proposed rules
     which are continued to be -- which we are continuing to re-
     analyze these proposals.
               Further, MSHA implementation policies which affect
     many policies is still being examine.
               Following my review of the MSHA proposals by UMW
     health and safety specialists, including UMW health and
     safety legal departments and mine and health and safety
     committees across the country we have been able to determine
     that the proposed rule are fatally flawed and not in the
     best interest of the nation's miners and in need of major
     changes.  While the proposed rules do provide some
     improvements for miners there are overshadowed by changes
     that would be adverse to miners, some undercutting the Mine
     Act and health and safety standard protections.  
               In light of years of hard work we have all done to
     reform the respirable dust program we're extremely
     disappointed in several areas of the MSHA proposal.  Our
     first recommendation is go back to the drawing board and
     come back with a proposal that everybody can live with based
     on the recommendations of the Dust Advisory Committee.
               Here's why:  many of the changes in the MSHA
     proposals are difficult to understand.  The preamble,
     proposed rule and existing rule all need to be read
     carefully to fully understand them.  Side by comparisons of
     the rule and the proposed rule are difficult since MSHA
     proposes significant structural changes.  MSHA reduced some
     important protections and substituted those legally
     enforceable protections with agency policy.  Some such
     changes are reflected only in the preamble but not in the
     rule itself and some are curtailed altogether.
               Some enforcement in the proposed actions would be
     discretionary.  MSHA publicity about the proposed rule has
     contributed to misunderstandings.  I'll give you a perfect
     example.  The bullet sheet that I received from Davitt
     McAteer on what these new proposed rules were going to do,
     how they were going to affect miners.  How they were going
     to protect miners, I think Joe said it perfectly, you know,
     we've got a body of a car here with no motor, no
     transmission, no seats, no tires, no nothing.  What that
     bullet sheet said and confused a lot of miners, I think
     every miner in the country that read them, was that the
     agency finally after 15, 20 years was finally going to do
     something with this.  And the Register and what come out in
     the Register doesn't show that.
               The proposed rules also ignored findings and
     recommendations of the Federal Mining Committee.  The
     Secretary of Labor established that committee to guide MSHA
     in developing proposed rules to reform the dust sampling
     program.  Several MSHA proposals contradict its
     recommendations, undercutting protection for miners.
               Miners in the UMWA participated in that committee.
     UMWA supported the Advisory Committee recommendations which
     were aimed at fixing flawed respirable coal mine dust
     program and eradicating Black Lung and silicosis diseases. 
     We wonder how MSHA veered so far off the path in adding
     protections miners have long sought and how its rules could
     be so contrary to the findings of the Advisory Committee.
               The following is what I see as a summary of some
     of the significant issues.  The proposal makes one point
     clear, compliance dust sampling is not important.  While
     MSHA proposals would add single shift sampling and plan
     verification requirements they eliminate the compliance
     sampling standards in Part 70 of 30 CFR, including all the
     standards that miners could point to and know what
     requirements were.  
               Other protections were undercut as well.  They
     are, they eliminate the entire compliance sampling
     requirements of Parts 70 and 90 with no replacement rules
     for compliance sampling, dramatically reduce by
     approximately 83 percent the frequency of shift samples for
     respirable dust.  Mining sections -- and I think we've
     talked about this -- we go down to six shifts a year.  And
     one test on the outby.  And those aren't even guaranteed by
     the rule or by funding.
               It dramatically increases dust exposure levels
     above those contained in the Mine Act and current standard. 
     The proposals would allow mine operators to double from 2
     milligrams to 4 milligrams on longwall faces.  The proposed
     rule states that exposure levels will be 2 milligrams and 1
     milligram for Part 90 miners on outby intake samples which
     the current rules MSHA vows to allow them to reach 2.33 and
     1.26.  These specific levels are not cited in the proposed
     rule or the preamble, they are referenced by preamble by a
     formula.
               It permits, it also permits mine operators to
     replace engineering controls with respiratory protection
     and/or administrative controls on longwalls which are
     prohibited by the Mine Act.  Enforcement of the MSHA
     proposal is too fuzzy and miners may not know what to
     expect.  The MSHA policy addressing the sampling process and
     intended enforcement of the plan verification under the
     standards appears to reduce the policy and discretionary
     decisions by MSHA or inspectors.  This is not good for
     miners or mine operators for that matter.
               With administration that would be soft on
     enforcement, having so much discretion on plan
     verifications, sampling requirements, the actual sampling
     levels, miner participation activities, approval of
     increased coal mine dust levels and other provisions could
     leave miners in a big hole.
               Key points about what is and were not in the
     rules.  Despite reports of the MSHA takeover of operator
     compliance sampling, they don't.  There is nothing in the
     proposed rule on compliance sampling requirements.  Those
     are eliminated.  MSHA announced in the preamble that they
     will be doing all compliance sampling generally at the
     frequency they are now.  Since it is not in the rule and
     funding is not being guaranteed, MSHA's current sampling is
     not legally guaranteed and could be reduced.
               I think you made that point on budget constraints,
     Marvin.
               Despite references of increased miners'
     representation, participations are not in the proposed rule. 
     The preamble discusses those.  For compliance sampling there
     are no more miners' rights than there have been since 1977. 
     MSHA plans to recognize by policy miners' representative
     rights to participate in announced MSHA test visits to
     verify dust plans.  
               The industry has already challenged this.  And you
     think they're going to let our guys go along and do these
     verification samples?  I don't think there's one coal
     operator in here who will stand up right now and say, yeah,
     we will let them participate and we'll pay them.  Forget
     about it.  It ain't going to happen.
               The rule does call for single shift -- single full
     shift sampling.  That's been supported by miners in the
     United Mine Workers.  The proposal, however, is altered by
     MSHA policy and other proposed rules reducing the benefit
     for miners.  Full shift samples will only be taken during
     abatement sampling.  Routine compliance sampling, which will
     be the vast majority of the sampling, will not be full
     shift, it will be the 8 hours or 480 minute samples, with
     some flexibility when they will be taken during the shift. 
     The compliance levels will be increased as noted above.
               Although there have been discussions about
     continuous monitors monitoring the dust, there are no rules
     requiring continuous monitors.  MSHA announced in the
     preamble that operators could test them if they want to. 
     Give me a break.  
               I've got a dust study sample that was done back in
     1984 and '85 by the Bureau of Mines that tested three
     difference continuous mining devices.  Though they were
     perfected then they were getting close.  As I understand now
     the technology is there.  All the have to do is harden the
     cases that this black box is in so it can't be tampered
     with.  That's one way to level the playing field up with
     continuous monitors between union versus non-union mines is
     continuous dust monitors.  We believe that that technology
     is there now.
               The proposed rule contains a dust control plan
     verification that is very complex.  Although plan
     verification is needed and we support that, as designed it
     is too complicated, may be ripe for operator abuse, and
     enforcement is far too discretionary.  There are parts that
     clearly need changes.  There's no backup plan for
     verification sampling once a plan has been approved.
               The procedures allowing increased dust
     concentrations to be doubled and replace engineered controls
     with respiratory protection needs to be eliminated.  More
     specific deadline on approvals of dust control plans is
     needed, to name a few.  The proposal contains changes in the
     manner that cores are sampled.  The full effect of those
     changes, we're still analyzing those.  We'll have some
     additional comment.
               The rule establishes procedures for administrative
     control for mine operators of longwalls to rotate miners'
     activities to reduce exposures and comply with the dust
     standards.  Under the scheme MSHA would not have operators
     under the citation to implement engineering controls which
     would remove legal rights miner have to force engineered
     controls.  MSHA policy on this is so discretionary that it
     lacks enforcement teeth and clarity.  This section is still
     being evaluated.
               The rule contains no standards that require mine
     operators to take corrective action when the dust standard
     is exceeded.  And if the sample is in compliance -- and the
     sample, the compliance sample changes must be incorporated
     in the ventilation plan.  If it is a non-compliant sample
     the operator plan could be revoked.  These proposals appear
     to tighten the rules requiring action to fix quality dust
     control plans.  These provisions are still being reviewed.
               The proposed rule establishes the requirements for
     posting information on mine bulletin board, including
     sampling results, the dust control parameters, the
     engineering and environmental controls and other factors. 
     We support that.  The rule contains improvement in the mine
     ventilation plan.  It requires mine operators to record the
     amount of materials, coal and other materials produced on
     each shift.  It also requires mine operators to specify in
     detail the dust control measures that will be in place.
               The rules contain several provisions changing
     standards in Part 90 regarding miners diagnosed with
     pneumoconiosis.  These are still being reviewed also.
               While MSHA asserts that proposals adopt
     recommendations by the Federal Advisory Committee, many MSHA
     proposals are contrary to what the committee recommended. 
     The MSHA proposed rules conflict with several findings and
     recommendations of the Federal Advisory Committee appointed
     by the Mine Act by Secretary of Labor for the specific
     purpose of recommended rules reforming the respirable dust
     program.  
               The Advisory Committee called for lowering dust
     exposure levels.  The MSHA proposals increase them.  
               The Committee called for increased compliance
     sampling.  The MSHA proposal substantially decreased those. 
               The committee called for an effective MSHA
     takeover of mine operator compliance dust sampling program. 
     The MSHA proposal instead eliminated the operator compliance
     sampling program.  
               The Committee called for a major expansion of
     miners' and their representatives' participation in the
     respirable dust program paid by the operator.  The MSHA
     proposals contain no rules for increased and in some cases
     can curtail it.  
               The Committee called for use of continuous dust
     monitors.  The proposals contain no rules requiring that.
               The Committee called for miners to be sampled for
     the full shift.  The proposal excluded that from most dust
     complying sampling.
               The Committee called for environmental controls to
     continue to be the method to control mine dust and not to be
     replaced by respiratory devices.  The MSHA proposals allow
     respiratory devices to replace environmental controls while
     increasing dust levels.
               There are other areas that the MSHA rule is
     contrary to the Advisory Committee recommendations.  The
     Committee recommendations will be addressed throughout this
     summary.
               Two areas the MSHA proposals follow the Committee
     recommendations at least in part is establishing single
     shift sampling measure and improvements in operators'
     respirable dust plan verification process.  Those two areas
     by no means justify the action of protections miners have or
     ignoring other reforms the advisory committee recommended.
               Let's see, a little bit of background on the
     Advisory Committee that was appointed by the Secretary of
     Labor.  The Advisory Committee was comprised of two
     representatives from each, miners and mine management and
     neutral -- and a neutral.  And five representatives had no
     interest in the mining interest.  Two UMWA health and safety
     officials served on the committee.  Those representatives as
     well as several miners and Black Lung victims across this
     country testified before the Advisory Committee panel, laid
     out reforms needed to overhaul the failed respirable dust
     program.
               In September 1995, NIOSH issued a criteria
     document calling for reforms in the coal mining dust
     program.  The document was forwarded to MSHA to the Advisory
     Committee for consideration as they developed
     recommendations to overhaul the coal mine dust sampling
     program.  The Federal Advisory Committee sent its official
     report dictating actions needed to reform the coal mine dust
     program to the Secretary on November 4, 1996.  Under Section
     101(a)(2) of the Mine Act, following submission of
     recommendations of the Advisory Committee, MSHA was
     obligated to publish a proposed rule or reason for not doing
     so.
               Following years of delay, the MWA filed a lawsuit
     on January 13, 2000 to force MSHA to issue regulations. 
     Those are on key reforms, miners and the UMWA itself for
     years, and were recommended by the Advisory Committee over
     three years earlier.
               You know, there's no MSHA takeover of the
     operators' controlled respirable dust compliance sampling
     program, it's just flat out eliminated.  I think a lot of
     this has been talked about before so I'll just -- I don't
     want to take up a lot of time here.  What I want to do is
     talk a little bit about the airstream helmets.
               I believe that, as Mr. Tatton said from Energy
     West, that operators have been looking to get airstreams in
     the coal mines for years.  Energy West probably led the way
     in that fight.  As Mr. Tatton says, there's a lot of
     problems with the respiratory devices.  They don't work. 
     Miners modify them so they can talk.  They lift the helmet,
     the mask up so they can speak, so they can see.  They fog
     up.
               If this proposal goes through as it's written it
     in effect will end any further engineering controls or any
     attempt to even make them better.  Once mine operators get
     the right to use respiratory devices for administrative
     controls you're going to see an end to your engineering
     controls.  And mark my words, if this goes through you're
     going to have to increase your staff back in Arlington
     probably by 100 people just to start improving plans when
     mine operators are crying that they've used all the
     engineering controls available and the only thing they have
     left is airstream helmets.  That's going to happen.
               And you'll see that, if this goes through tomorrow
     you'll have 150 applications on your desk Monday.  There's
     no doubt in my mind.
               MR. NIEWIADOMSKI:  Can I ask you a question?
               MR. NICHOLS:  Sure.  Let me ask first.
               You said on a number of occasions there that
     airstream helmets replace engineering controls.
               MR. STEVENSON:  Right.
               MR. NICHOLS:  That's not what the rule says.  The
     rule says that if all engineering controls have been
     exhausted that consideration can be given for the use of
     airstream helmets for people working downwind of the shear
     operator.  That, "consideration" has limited it to just that
     area.
               Now, do you -- are personal protective devices
     used at your mine?
               MR. STEVENSON:  No.
               MR. NICHOLS:  Okay.  They are used at other mines
     out here on a voluntary basis.  And from time to time we've
     been asked to consider those as an engineering control.  We
     have never done that.  And we'll continue not to do that in
     all areas of a mine except where we believe engineering
     controls have been exhausted.  And this is a stiff test
     based on our experience with controlling dust for the people
     working farthest downwind.
               MR. STEVENSON:  Let me ask you a question.  What
     happens if the miners don't agree with that, that all
     engineering controls haven't been exhausted?  What avenue do
     they have.  Because if there's no rule and they say they're
     gone and we've got no -- and they're not under citation,
     where does that leave us?
               MR. NICHOLS:  Your consideration will be factored
     in with the decision.
               MR. STEVENSON:  We don't want it factored in,
     Marvin.  We want it in black and white where if they're not
     using engineering controls to their full extent or even
     adding new ones, water infusion, slowing drum rotation.  Has
     the agency ever forced an operator to use water infusion in
     the face?  I don't think so.
               Have they ever told them they have to slow down
     drum rotation?  I don't think so.  Might have suggested it.
               So the way they cut the longwall, figure 8 or cut
     one way the other.  These might have all been suggested. 
     But have they ever told an operator you try this before you
     use airstream helmets?  I don't think so.
               And it won't happen because it's going to be
     discretion either on the inspector that's onsite.
               MR. NICHOLS:  No, it won't.  I mean that will be
     part of the process.  The way we've structured this is that
     the only person that can give interim approval for the use
     of this personal protective equipment in this one area of
     the mine, that decision will be made by the Administrator
     for Coal Mine Safety and Health with input from our own
     technical people, our inspectors, the miners, anybody that
     has an opinion on this.
               MR. STEVENSON:  But when does it stop?  There's no
     abatement period.
               MR. NICHOLS:  Do what?
               MR. STEVENSON:  When does it stop?
               MR. NICHOLS:  When a new -- When if we make a
     decision that all engineering controls have been exhausted
     and allow the use of an airstream helmet that stops when a
     new control is available to engineer away the problem.
               MR. STEVENSON:  You know, we just went through a
     dust survey at Trail Mountain by Energy West and a couple of
     our guys participated.  And they'll know a lot more about
     that than me.  But at the protocol meeting Energy West`s
     position was they had used all the engineering controls that
     they could do, they have done everything the knew.  Bottom
     line was they wanted to use airstream helmets.
               When MSHA come in there with tech support and
     stuff, in their main intakes they have from 5/10ths to 1.1
     before the air was even going into the section.  I mean so
     they were half out of compliance between the air even turned
     the corner.
               And the statements that Mr. Tatton made, and I'm
     sure this is going to be the position of the entire
     industry, they don't only want to use airstream helmets on
     the longwalls, they want you to put them all when you get
     int your car in the morning to go to work until you get home
     that night.
               MR. NICHOLS:  Well, this rule doesn't even address
     any consideration for that.
               MR. STEVENSON:  Well, but that's where it's going,
     Marvin.  This is the foot in the door.  A foot in the door
     to eliminate engineering controls and environmental controls
     and replace them with respiratory devices and administrative
     controls, running guys in and out of there for 10 minutes. 
     You can get up for this long and get out of there so you
     don't get overexposed.  I mean it's a foot in the door.  And
     it's going to be a domino effect.  Yeah, I can even see coal
     out there who's sabotaging their own engineering controls so
     they can use airstream helmets.  I mean it makes life easy
     for them.
               The law already says that if they're out of
     compliance they have to have respiratory equipment available
     for miners that works and its approved.  I think we just
     heard a guy said that they don't have them or they allow
     miners to modify it.  The technology is not there.
               I think the technology is a lot closer on
     continuous monitoring than it is on an airstream helmet that
     the mine can wear where he can communicate with his fellow
     workers, where he can see, where it's not -- where it
     doesn't weight 10 pounds where he can move around.  I mean
     if we're talking about a technology we're just as close with
     continuous monitors as we are with airstreams.
               The first airstream they come up with was a
     motorcycle helmet with a shield on it.  You had to tape your
     light on it.  From that it evolved into this mammoth deal. 
     And like I say, I think there's only one that's approved
     now.  But they don't remain in approved condition once the
     guys start wearing them because they can't wear them, they
     can't see.
               MR. NICHOLS:  George, you had a?
               MR. NIEWIADOMSKI:  I think you asked the question. 
     You, what I was curious of if in fact Racals were being used
     or PAPRs were being used at your mine.  You said they were
     not.  I was curious at public mines that they're being used
     why aren't miners using those devices?
               MR. STEVENSON:  You know, I think when I say
     they're not being used at my mine, my mine's not in
     operation anymore.  We used airstreams when the first ones
     come out back in the late '70s/early '80s.  I think miners
     wear them now for protection.  And if they're used right,
     they do have some protection.  But they can't be -- they
     can't take the place of engineering controls.
               MR. NICHOLS:  Well, there's not a single mine
     operator today getting any credit for the use of airstream
     helmets as it relates to engineering controls.
               MR. STEVENSON:  But it's going to be, Marvin. 
     Because if you've got a 2 milligram standard on a longwall
     now and it can be boosted up to 4 and guys can stand there
     and mine coal with an airstream helmet that's an engineering
     control.  Because there's -- if they're not under citation
     there's no way to abate, I mean they can mine forever.
               MR. NICHOLS:  Well, first of all, they're not
     going to get it if there's an engineering control that can
     be applied to the longwall.  Are you saying that, are you
     saying that there's no place -- are you saying that all
     overexposures for people working downwind of the shear
     operator can be handled by engineering controls?
               MR. STEVENSON:  I'm not saying that.  What I'm
     saying is -- and there's been times in our minds where we've
     used airstream helmets when they've got out of compliance. 
     What I'm saying is the way this rule is written that in
     effect your going to end engineering controls and you're
     going to end environmental controls because the coal
     operators are going to -- all they've got to do is make a
     phonecall, you go in there and verify they're out of
     compliance and, bingo, they've got airstream helmets and
     administrative controls.  
               That's what we're -- we're not against airstreams
     and having protections for the miners as long as they're
     approved and they work and they're maintained in an
     operating condition.  That's not going to happen.  I mean
     what's -- the next thing I see coming down the road is if we
     ever get any regulations on diesel emissions, which, God, I
     hope we do, what are we going to do then when they say that
     they can't control the emissions at the exhaust, what, are
     you going to put a gas mask over the top of the airstream
     and that's going to be okay?
               MR. NICHOLS:  Well, that's a separate rule.  I
     don't think you can read this rule and make the statements
     as broad as you're making them there because we --
               MR. STEVENSON:  Oh, I can because I mean I've seen
     --
               MR. NICHOLS:  -- we've carefully structured this
     rule to where the only place you get consideration is those
     places where we think there could be a problem with
     engineering out the overexposure.  What we're trying to get
     away from, what we're trying to do is recognize maybe some
     reality here and not get in a situation with these miners
     working downwind where they go through this sampling scheme
     that we've talked about here today where you've got two
     miners overexposed, three underexposed and then you average
     out and nobody's overexposed.  As to where we keep making
     this argument about engineering controls but we keep
     sampling it until we find people in compliance so we can
     satisfy ourselves that there's no problem.
               I don't think that in reality I don't think that's
     the case.  I think that in some cases where we're calling
     compliance we still have miners overexposed to 2 milligrams.
               MR. STEVENSON:  And I may agree with that.  What
     I'm saying is if you're going to let them use airstream
     helmets put them under citation and give us recourse to make
     sure the engineering controls are there.  If it's got to be
     for a short period of time, so be it.  But once this, once
     they get the right to use airstreams and once they get the
     right to use administrative controls, forget about it,
     you're not going to have any engineering controls because
     they're not going to take care of them.
               MR. NICHOLS:  So you're saying issue a citation
     and extend it until -- issue a citation, allow the airstream
     helmet, but extend the citation until the period of time a
     new control becomes available?  Is that what you're saying?
               MR. STEVENSON:  No, fix the controls they had that
     they were in compliance before they needed to come to you
     for the airstream.
               MR. NICHOLS:  No, that's where we're
     miscommunicating here.  They're not going to use the
     airstream helmet if they've had controls in place to control
     the dust.  That's a non-starter.  I mean, people are not
     going to be able to stay I want to use this and not
     engineering controls.  I think we're clear on that in the
     rule.
               MR. STEVENSON:  And, see, I don't because all it
     says is, what is it, 70, wherever it starts, 70.2 up to
     70.216 is it lays out what they have to do.  You know,
     you've got verify your plan, da-da-da-da-da.  They do all
     this stuff and still at the end they say they can't stay in
     compliance.  And you agree with that.  Once the airstreams,
     you start using airstreams and administrative controls
     there's no abatement period.  I mean they could stay out of
     compliance for two years in one longwall section.  Is that
     right or wrong?  And there's nothing to say that -- there's
     nothing to say the agency can go in there and say, Try
     water.  We want you to try water infusion and all those
     other dust controls that have been available for years.
               MR. SCHELL:  But, Jim, we'd never allow, under
     this proposal we'd never allow them to even go to the
     airstream helmets until they had tried that if we think
     that's a feasible thing to try.
               MR. STEVENSON:  But you can't make them do it.  I
     mean there were recommendations made in Trail Mountain
     survey that and they just said, forget about it, we ain't
     doing it.  We've got all the controls in place that we have. 
     We're experts at this.  We've been doing it for years. 
               And I'm not singling out Energy West.  Every coal
     operator is like that.  
               We know it all, we've tried it all, and we need
     airstream helmets.
               MR. SCHELL:  Well, if they disagree with us
     they're not going to get approval to use.
               MR. STEVENSON:  It doesn't say that in the rule.
               MR. NICHOLS:  Are they in compliance with the 2
     milligram standard.
               MR. STEVENSON:  Is who in compliance?
               MR. NICHOLS:  Trail Mountain.
               MR. STEVENSON:  At times they are, yeah.
               I mean let me ask you another question.  You take
     an operation like 20 Mile.  They mine a million tons a
     month.  One month I think that's what it was approximately. 
     Twelve, 14 thousand tons a shift.  Are those longwalls in
     compliance?  No way.
               So they're the first ones that are going to say,
     well, just give us airstreams and we'll just keep mining
     like we've done.
               MR. NICHOLS:  Are you making that assumption based
     on an opinion or have you seen facts?
               MR. STEVENSON:  I'm making that assumption of
     talking to 190-some coal miners that worked at 20 mile mine
     because they called us because of safety concerns over
     there.  I talked to these guys.  
               One guy was tickled pink, even though he couldn't
     see his hand in front of his face on the longwall, he was
     tickled pink because the operator always changed his filter
     and shined his airstream helmet, he thought he was
     protected. 
               And what happens to the dust?  You know, it's not
     only the dust that gets in your longs, what happens to the
     exposure factor?  That goes up greatly with increased dust. 
     What do you do with that?  You increase the velocities on
     the face to get rid of the dust?  The adequacy of the
     airstream helmet goes down.  I mean that's a known fact, any
     time you increase the velocities it, you know, I mean
     that's, that's the way it is.  The lower velocities the
     better it works.  As long as you're looking right in the
     face of the air.  If you turn your head one way or the
     other, this and that, they're not as effective, Marvin.
               MR. NICHOLS:  I know.  The rule recognizes that. 
     I mean we cut the protection factor from 25 down to 2.  The
     manufacturer would say this device will protect up to 50
     milligrams.  We say, no, we'll consider it for up to 4
     milligrams.
               MR. STEVENSON:  Yeah.
               MR. NICHOLS:  Do we have the -- do we have data on
     Trail Mountain, sampling data here with us?
               MR. NIEWIADOMSKI:  I don't have it right here but
     I can get it.
               MR. STEVENSON:  You know, I just think it's, you
     know, once you open the door to airstream helmets and
     administrative controls and to control dust I mean you can
     forget about it because you're going to see an epidemic
     again in Black Lung.  I mean it's -- here you're condemning
     miners to an ugly death.
               I watched my dad die from Black Lung.  It's not a
     pretty site.
               MR. SCHELL:  Jim, what we were trying to do in
     this rule, and you touched on it, and just bear with me for
     a minute.
               MR. STEVENSON:  Sure.
               MR. SCHELL:  Let's take a longwall where they've
     done everything they can.  Remember, we're going to require
     them to be at 2 milligrams at the 044 under this rule.  So
     that shear operator has to be in compliance.  But rather
     than arguing with me about whether they've done all
     engineering controls just bear with me a minute.  
               Let's say they have done all engineering controls. 
     What our concern is, like Marvin said, we kid ourselves and
     we sample till they come in compliance and then we walk
     away.  And what happens is just what you said, is when we
     walk away you've got miners still going downwind and being
     overexposed.  And that's what was bothering us that we were
     living this big lie that we were protecting these miners
     downwind.
               Now, we absolutely agree with you and one of our
     concerns was just what you've stated, how do we make certain
     that all engineering controls are implemented and that we
     continue to develop engineering controls, because we want to
     be right where you are.  Every feasible engineering control
     ought to be put on that longwall.  But if we've done every
     feasible engineering control, they're still producing dust,
     we're not raising the standards.  Those miners are already
     being overexposed.  
               So that we were trying to find some way to say
     let's stop pretending everybody is protected and let's go
     down and protect them.  And the two solutions we came up
     with were administrative controls and Racals.  Because if
     you're in a Racal you shouldn't be in 4 milligrams of dust. 
     Okay.
               MR. STEVENSON:  Okay.
               MR. SCHELL:  If that is being used your exposure
     should be less.  
               But we, we're struggling with the same thing you
     are, we don't want them substituted for engineering
     controls.  And that's the point we're trying to make.  And
     that's why we said only Marvin Nichols or the administrator
     will be allowed to do this.  But we've got to recognize if
     you exhaust everything you just can't pretend everything is
     okay.  How are you going to protect the guys that you know
     might be exposed?
               MR. STEVENSON:  And isn't that already in the law
     that if they're out of compliance they have to have them
     respiratory devices available?  And they don't.
               MR. NICHOLS:  Yeah, it's in the law.  But how do
     we -- what we usually do after we've included all
     engineering controls then we go to this creative sampling
     scheme that Ron walked you through this morning where if you
     keep sampling long enough and you keep averaging long enough
     you'll find people in compliance.  We don't want that.
               MR. STEVENSON:  And neither do we.
               MR. SCHELL:  And to some degree, Jim, you're
     right, it is in the law.  What we wanted to do was put some
     parameters on how it would be used in the law.  We didn't
     want every district manager to be able to say, Okay, go
     ahead and put respirators on.  We didn't want people to be
     able to say you can put it on the entire longwall.  So
     you're right, the law does recognize that if you can't -- if
     you're out of compliance you need to use respirators.  And
     that's what we're proposing.
               But what we're trying to do is to put some limits
     on where you can do that.  Because, quite frankly, in our
     own mind, and I'd disagree with Randy Tatton a little bit,
     we don't understand why you can't control the 044.
               MR. STEVENSON:  And, you know, and using the
     airstreams to protect guys for a short period of time, we've
     supported that at times.  But my main point is, and I guess
     we're going to have to agree to disagree on this, is once an
     operator gets the right to use Racals, airstreams,
     administrative controls, in lieu of engineering controls and
     keep researching and developing it to improve them, that's
     not going to happen.
               MR. NIEWIADOMSKI:  Let me clarify something, Ron.
               Once we've made a decision the one thing that you
     need to recognize, I'm sure everyone does, is that that
     decision is going to be made when in fact we're going to be
     sampling under what we consider more representative
     production conditions that currently happens.  Now, they're
     out of compliance right now based on samples that everybody
     agrees are non-representative.  Can you imagine, okay, now
     we're going to say, all right, you better design a plan to
     reflect to be able to control dust under more typical
     production conditions.  We're saying we're going to get to
     the situation where this longwall that's capable, normally
     produces 15,000 tons per shift and where we're sampling
     we're lucky to get ten, we want to be able to have the plan
     designed under 15,000.
               So what we're saying is if they're having a
     difficult time controlling at 10,000, I can imagine what's
     going to happen at 15,000.  And so the decision that's going
     to be made is, well, what do we do?  Well, there's one
     option.  We cut back on production.  That's an alternative;
     right?
               MR. STEVENSON:  Uh-huh.
               MR. NIEWIADOMSKI:  But that's not a realistic one. 
     Okay.  And so we're saying we're going to do that.  All
     right?  We're going to look at that.  We're going to get it
     to a point where, gee, you know, we don't want to.  For the
     past 20 years, and of course Energy West will attest to
     that, they've come to MSHA and say, MSHA, you're failing to
     ignore this new technology.  And we're saying -- this mini-
     environmental control.  And we've always said, that's a
     respirator, okay.  The respirator will not be used as a
     substitute, okay.  To supplement, yes.  Okay.  We haven't
     got to that decision.  And only when they've exhausted all
     feasible engineering controls.
               Let's assume we get to that situation.  And one
     thing that you also need to know is that every aspect of the
     plan verification process, all documentations are to be
     posted on the bulletin board so you need to -- so the miner
     has an idea here's an operator comes in and says, I've used
     all engineering controls.  You guys may disagree.  And you
     guys will come to MSHA and say, we don't agree with that.
               Well, let's assume this body of experts makes that
     determination, says this longwall in order for it to
     continue to produce 15 or 20 thousand tons per shift, you
     know, they've got to control through environmental controls
     at the 044, and we're going to use respirators.  Every six
     months as part of the six month review we're going to be
     looking at the performance.  We're going to be looking at
     are there any new technologies?  Are they implementing it? 
     And, in fact, if we find that they're failing to comply with
     those provisions we will revoke their permission to use
     respiratory protection.
               So we've got that billed that it's not like once
     we approve it that's it.  So we have some checks and
     balances in there.  So, you know, don't think we're doing
     it.  We're concerned.  We've made very clear that we
     advocate primacy of engineering controls.  We are
     controlling the environment.  We know if we control the
     environment it doesn't matter where you go, here or there,
     you're going to be protected.  That's the intent of the law
     and that's what we want to achieve.
               MR. STEVENSON:  And I think that's what we all
     want to achieve.  But I'll say again, once they get their
     foot in the door this is going to be the norm for the
     industry.  Where the miners' reps have no say.  I mean it's
     just ridiculous.  I mean there's no -- it's going to be a
     flood.
               And then one more thing I'll say and then I'll get
     off is something you said, Marvin, about budget constraints. 
     And if this plan goes back chances are we're not going to
     get anything done, I'll tell you what, I think that is a
     slap in the face because we've been trying to deal with this
     for 8 or 10 years and now you're telling us that if we don't
     accept this plan --
               MR. NICHOLS:  No.
               MR. STEVENSON:  -- that there ain't going to be a
     plan?
               MR. NICHOLS:  No.
               MR. STEVENSON:  That's blackmail.
               MR. NICHOLS:  No.  I'm telling you there's a
     reality out there.  I'm not telling you --
               MR. STEVENSON:  And we've been saying there's a
     reality out there for years, Marvin.  Let's take care of the
     problem.  And everybody has just ignored it.
               I mean, what did it cost to put that Federal Dust
     Advisory Committee together?  I mean there were expert
     people on there come up with some excellent recommendations. 
     And they were completely ignored.  
               Where was the money put into the dust monitors?  I
     mean 20 years ago the dust monitors were starting to come
     around.  We've seen no pressure from MSHA to use them.  We
     don't see any pressure from MSHA to use them now.  If the
     operators want to.  Give me a break.  They ain't going to do
     it.  I mean that's just a simple fact.  
               I mean ask the guys that work in the mines.  A lot
     of coal operators in here, the only ones you see any coal
     miners are from represented mines.  You ain't going to see
     any coal miners from 20 Mile or West Elk or anyplace else
     coming in here and telling you exactly what's going on in
     their mind.  And you won't.  As a matter of fact, a fellow
     at Willow Creek complained about what was going on there and
     they fired him.  He called us.  We got him his job back
     under 105(c) discrimination.
               I mean so it's not a level playing field out
     there.  One way to level that up as far as dust is
     continuous monitoring.  But it's my opinion, and I strongly
     believe that once the floodgates are open on airstreams as
     administrative controls you're going to see engineering
     controls go out the window.  And I don't see MSHA having any
     say in forcing an operator to do anything more than he's
     already doing.  Once they say their experts and their
     engineers and all these consultants that come in say this is
     as much as we can do, even if you have better ideas you
     can't force them to do it.
               MR. NICHOLS:  Well, I disagree with you there.  I
     totally disagree.
               MR. STEVENSON:  And they're not under citation,
     how can you force them to do anything?
               MR. NICHOLS:  Well, they've got to have a plan to
     operate these.  We have control over these plans.
               Now, I'm not trying to tell you what to do.  I
     wouldn't even start to do that.  What I am telling you about
     resources and this rule is that MSHA has the resources to do
     what we stated here.  It's taken about -- it's taken three
     years to get 90 additional people to go to bimonthly
     sampling.  I'm telling you from my own experience to go back
     and rewrite this rule from scratch that you're not talking
     about a few days, you're talking about some good amount of
     time.  You'll have to decide whether somebody might say
     "That's a good idea, we'll do it." or somebody might say,
     "No, thank you."  
               Let's say somebody says, "That's a good idea," and
     then you get everything you want in these rules, all I'm
     pointing is that by just a rough calculation for coal to --
     Coal Mine Safety and Health to enforce these rules, to
     substitute MSHA sampling sample for sample with operator
     sampling, you're looking at needing another 200, a ballpark
     figure of another 200 Coal Mine Safety and Health inspectors
     plus probably $20 million for salaries and related
     equipment.
               Congress may say that's a great idea and they may
     or may not.  But I'm not trying -- I didn't say that to try
     to influence where you come out on these rules.  I'm just
     saying it's not as easy to say, okay, MSHA's going to take
     over operator sampling and have the resources and the law to
     do it with.
               MR. STEVENSON:  Well, what I think I would say to
     that rather than --
               MR. NICHOLS:  But you said it was a slap in your
     face.
               MR. STEVENSON:  Oh, and it was.
               MR. NICHOLS:  What I'm trying to do is give you a
     picture of what the real world looks like.
               MR. STEVENSON:  I know what the real world looks
     like.
               MR. NICHOLS:  Well.
               MR. STEVENSON:  And I know what the real world is
     going to look like if this thing goes through.  You're going
     to have tens of thousands of more new cases of Black Lung. 
     It's as simple as that.
               MR. NICHOLS:  We've got -- You're just, Jim,
     you're not, you're not doing a fair characterization of the
     rule.  First of all, there's about 55 longwalls.  You're
     talking about hundreds of plans.  There's 55 longwalls in
     this country.  There's about 850 to 900 mechanized mining
     units which we've said that this consideration for airstream
     helmets that's not even on the table.  For all miners on
     these 55 longwalls that's not on the table.  The only thing
     that's on the table is a section of this longwall where
     we're not convinced that miners are still not being
     overexposed to the 2 milligram standard after we've
     exhausted all engineering controls.
               Now, this is the only rule that MSHA has that
     would require -- I believe I'm correct on this -- the
     Administrator's approval.  To open the door for airstream
     helmets if we'd wanted to do that we would have left the
     approval at the field level.  We'd a let district managers,
     inspectors, the field people make these determinations.  We
     didn't want to do that.
               Is there another rule that requires the
     Administrator's approval?  No.
               MR. STEVENSON:  Isn't the inspector onsite or the
     district manager going to have most of the input in what he
     tells you at MSHA?
               MR. NICHOLS:  He'll have input just like your --
     just like miners and health and safety committees and tech
     support, anybody else that has an opinion will all be
     factored into the decision making.  I'm not going to approve
     the use of engineering -- or airstream or personal
     protective equipment if there's some scream up there by any
     party that, no, there's an engineering control that will
     take care of this problem.  That will be factored into the
     decision as long as I'm the Administrator, and whoever else
     is the Administrator.
               MR. STEVENSON:  Well, I just don't see it
     happening like that.  Like I say, I think that they'll be
     beating your door down to get airstream helmets and
     administrative controls and engineering controls are going
     to stop, there won't be any new ones developed.
               MR. NIEWIADOMSKI:  They've been trying to do that. 
     And I'm not trying to get under.  They've been trying to do
     that for over 20 years and we've resisted it.  And that's
     different --
               MR. STEVENSON:  Until now.
               MR. NIEWIADOMSKI:  And that's for different
     administrations, okay.  To different administrations we've
     resisted it.  And we will continue to resist it until it's
     demonstrated to our satisfaction by way of the inspector,
     technical personnel, even on mine, onsite visits that in
     fact, yes, there is nothing else to do except for what I
     said is, you know, cut back on production or something else.
               MR. STEVENSON:  Well, you know, when you talk
     about different administrations you know I think you're
     shortly the way it sounds, and I hope not, but we're going
     to be going back to the Reagan-Bush area.  And --
               MR. NICHOLS:  But if it relates to this point,
     wait a minute.
               MR. STEVENSON:  -- forget about it.  I mean
     everybody knows what happened during them 12 years.
               MR. NICHOLS:  As it relates to this point I have
     worked for MSHA since 1971, I've been in the headquarters
     group since 1983.  We've been through a number of changes in
     administrations.  But never has the agency varied on the
     fact that personal protective equipment or airstream helmets
     are engineering controls.  That's never changed.  We're not
     changing here.  What we're doing is recognizing a situation
     that may exist that miners are still overexposed to dust
     after we go through this creative sampling here and get to
     the point.
               The other thing you mentioned is that MSHA does
     not taking sampling serious.  We take sampling serious but
     we think something even more important than sampling is good
     plans that work, that MSHA understands, that the mine
     operator understands, that the miner understands, that the
     health and safety committee understands that can be checked
     on a daily basis before the start of the shift for all the
     parameters to be in place.  We think that's how you get
     compliance on a day to day basis, compliance for every I
     think Ron mentioned 450 shifts.  Not that we've got plans
     that where it would be legally okay to sample at 50 percent
     of production and more controls in place on the day we
     sample. 
               I mean is sampling six times a year for something
     you trust better than many more times a shift for something
     you can't trust?  Does that make any sense?
               MR. STEVENSON:  Well, you know, I don't think I
     said it I didn't think MSHA didn't take it serious, I said
     it curtailed the samples.
               MR. NICHOLS:  Well, I believe that's what you
     said.  I believe you said we didn't take it seriously.
               MR. STEVENSON:  And eliminating all those operator
     samples I think definitely hurts because, you know, six
     samples a year and then one outby.  And we're going to have
     some guys talking about this outby stuff.  But like I said,
     it's my opinion and I think it's a fact that once this
     happens it's over for coal miners.
               MR. NICHOLS:  You think keeping operator sampling
     is important given the fact that the case has been made
     especially over the ten years that many samples are
     collected illegally, those that don't sample illegally take
     advantage of absolute best conditions for the sample?  You
     think --
               MR. STEVENSON:  Well, what the Advisory Committee
     recommended is that you take over operator sampling, not do
     it the same way they did it.  I mean, what would be the
     sense of that?
               MR. NICHOLS:  But are you talking MSHA taking over
     sample for sample?
               MR. STEVENSON:  Absolutely.  Not curtailing down
     to six.
               MR. KOGUT:  You left, I think you left an
     impression that the for purposes of abatement sampling only
     that under the proposal the sampling would go beyond an 8
     hour shift if there's more than 8 hours work.  And I think
     you left the impression that under the proposal that samples
     greater than 8 hours would take place only on abatement
     sampling.
               MR. STEVENSON:  That's the way I understand it.
               MR. KOGUT:  Under the proposal that would also be
     true for verification sampling.
               MR. NICHOLS:  Thanks, Jim.
               MR. STEVENSON:  Thank you.
               MR. NICHOLS:  Okay, the next presenter will be
     Camron Montgomery, UMWA.
               Time got away from me.  How about if we break for
     lunch until 1:00 o'clock and Camron will be on first after
     lunch.
               (Whereupon, at 12:05 p.m., the hearing was
     recessed, to reconvene this same day at 1:00 p.m.)
     //
     //
     //
     //                   A F T E R N O O N  S E S S I O N 
                                                      (1:05 P.M.)
               MR. NICHOLS:  Okay, let's get started back.  Is
     Camron Montgomery here?
               MR. MONTGOMERY:  Yes.
               MR. NICHOLS:  Okay, let's see if that time-out
     affected your stuff.
               Yeah, go ahead.
               MR. REYNOLDS:  I just wanted to mention before we
     got started that when we originally published the notices
     about the hearing we had planned to have two different
     hearings on the two different proposals.  And because of the
     fact that that hasn't worked we're conducting the hearing
     that's running the whole day on both proposals.
               So I just wanted to mention if there is anybody
     here in the audience that thought there was going to be
     another hearing starting at 1:00 p.m., the hearing has been
     running all morning.  And I don't believe there's anybody
     here that wasn't here this morning but if there is you need
     to go back and sign up to speak with Pam King if you want to
     get on the speakers list.
               Thank you.
               MR. NICHOLS:  Let me say one other thing.  We
     received some comments that we're not, we're not up here
     hearing the presenters' comments, that we're locked in on
     this reg.  Let me assure that's not the case.  This is the
     third hearing we've had.  We've had in excess of 100 miners
     testify.  We've given everybody that wants to a chance to
     present testimony.  We've had a lot of good comments during
     these three hearings that deserve a lot of consideration. 
     But we feel compelled if we hear something that's not a fair
     characterization of what we're trying to do in the rule or
     that's something that needs further explanation or further
     education we feel compelled to do that.
               So go ahead.
     STATEMENT OF CAMRON MONTGOMERY, UNITED MINE WORKERS OF
     AMERICA
               MR. MONTGOMERY:  Well, I'll be honest and upfront. 
     You guys probably aren't going to enjoy what I'm going to
     tell you, my opinion, what I've got on this new proposed
     reg.  And I've kind of talked to people cross-sectionally
     through here.  And the mining industry doesn't understand it
     as a whole right now.
               Being fair to you guys, it's brand new and
     everyone hasn't read it and been able to dissect it and
     figure it out yet.
               But my name's Camron Montgomery.  I've worked in
     three of Utah's underground coal mines for the past 22
     years.  I'm currently employed for Energy West Mining.  I
     worked at Trail Mountain Coal Mine.  I'm classified as U4D
     longwall propman.  I'm the current vice president, safety
     committee chairman for UMWA Local 2176 at Trail Mountain
     Mine.  And I've been a miner's rep as defined under Section
     103 of the Act for about the last 12 years.  And I'd like to
     thank this panel for the opportunity of commenting at this
     public hearing.
               So just from a little historical data talking to
     the people out here in safety and engineering from the mines
     around the west I've got a kind of consensus that most of
     the experienced mine health and safety people in the room do
     not entirely, completely understand or agree with this new
     entire -- or with the entire new proposed rule.  Because I'm
     feeling a little bit inferior myself because I do not
     completely understand all of this myself.  So I'm keeping my
     comments to the parts that I think I understand.
               So we've established that the proposed rule is
     complicated and not altogether understood by the mining
     community, the same people that have to understand,
     establish, enforce it and teach it to the miners at all of
     the respective operations.
               Coal miners' exposure to unhealthy levels of coal
     dust leads to the disabling and life-shortening disease
     pneumoconiosis, Black Lung.  This disease has crippled and
     killed tens of thousands of miners of this nation's coal
     miners over the years.  According to studies done by NIOSH
     between 1987 to 1996 alone at least 18,245 deaths among this
     nation's coal miners occurred from Black Lung disease.  That
     means that roughly about one of this nation's coal miners
     dies ever six hours from Black Lung disease.  
               And if you're one of this nation's coal miners
     that files for federal Black Lung compensation, don't hold
     your breath, what little breath you have left, because 93
     percent of all Black Lung cases are denied and rejected.
               In may of this year I had the rare opportunity of
     attending a healthcare rally at the nation's capital
     sponsored by the United Mine Workers of America.  There were
     approximately 12,000 active and retired coal miners present. 
     I was one of 17 people from the west that got to attend. 
     We're fighting for a good cause I felt like, it was retiree,
     basically old coal miners' health benefits.  The event
     seemed to be a success.  The weather was beautiful.  It was
     about 80 degrees at about 75 percent humidity.  The grass
     was green and all the different trees and flowers were in
     bloom all on the front steps of the Capitol.  Quite a sight
     for a guy from southeaster Utah.  
               The only thing that stood out and seemed out of
     place was the steady, constant stream of ambulances that
     arrived and departed hauling off older retired coal miners
     that had succumbed to the heat and humidity as the day grew
     longer and hotter.  I've not heard nor seen that many
     ambulances in Price, Utah, in the two years that I've lived
     in my house.  My house is about three blocks away from the
     local hospital.  The local hospital's the only hospital for
     miles around.  And I remember myself sitting there looking
     at this underneath a beautiful magnolia tree, which we don't
     have in Utah, thinking to myself, wondering how many of
     these older retired miners occupying these ambulances had
     problems that day because of Black Lung disease.
               On January 31, 1995 the Secretary of Labor
     established and advisory committee to advise on the topic of
     eliminating pneumoconiosis in coal mine workers.  The
     committee was chartered to make recommendation for improving
     the program to control respirable dust in underground and
     surface coal mines in this country.  It was paid for by the
     hard working American taxpayers in this country. 
               In 1996 the Advisory Committee handed down its
     recommendation.  And it appears that MSHA through this new
     proposed rule cheated the hard working American taxpayer
     because MSHA didn't listen to a lot or most of the
     recommendations by the Advisory Committee.  And I'll get
     into a little detail later.
               In 1969 and amended in '77 the Federal Mine Health
     and Safety Act was made public law.  At the top of the first
     page under "findings and purpose" the very first line
     stated, "Congress declares that the first priority concern
     of all in the coal or other mining industry must be the
     health and safety of its most precious resource, the miner." 
     So, in my opinion anything that diminishes the safety of the
     miners is in direct violation or contradiction of the Act.
               The new proposed rule diminishes the safety of the
     miners and, therefore, in my opinion is in violation of the
     Act.  The first line in the Act, Section 202(a) through (h)
     of the Act detailed the dust standard and respiratory
     equipment.  The new proposed rule rapes, plunders and buries
     Section 202 of the Act.
               The details.  MSHA's proposals ignore longstanding
     demands by miners and the UMWA on reforms needed to fix the
     troubled dust sampling program.  The proposed rule ignored
     findings and recommendations by the '96 Advisory Committee. 
     The Advisory Committee called for lowering dust levels. 
     MSHA's proposal increases them.  
               The Advisory Committee called for increased
     compliance sampling.  The MSHA proposal substantially
     decreases them.
               The Advisory Committee called for an effective
     takeover of the mine operator compliance dust sampling
     program.  The MSHA proposal eliminates the operator
     compliance sampling altogether.  Now, this might make a few
     mine operators and safety engineers happy, but I don't think
     it's in the best interest of my health and safety.
               The Advisory Committee called for expansion of
     miners' and their representatives' involvement in the
     respirable dust program paid for by the operator, Section
     103(f) of the Act.  The MSHA proposal contains no rules for
     increased miner participation. 
               The Advisory Committee asked for use of continuous
     dust monitors.  The MSHA proposal contains no rules
     requiring them.
               Whatever happened to the black box?  Rumor has it
     the program run out of money.  And I'm just guessing nobody
     cares enough to fund that program.
               The Advisory Committee called for miners to be
     sampled full shift.  The MSHA proposal excludes that from
     most of the compliance sampling.
               The Advisory Committee called for environmental
     controls, water and air, to continue to be the method to
     control coal mine dust to not be replaced by respiratory
     devices, Section 202(h) of the Act.  We call them
     administrative controls at Trail Mountain Mine.  The MSHA
     proposals allows respiratory devices, administrative
     controls, to replace environmental controls while increasing
     dust levels, a direct contradiction of the first page, first
     sentence of the Act.
               The new proposed rule eliminates entire compliance
     sampling requirements in Parts 70 and 90 without any
     replacement rules for compliance sampling.
               The proposed rule dramatically reduces the
     frequency of shift sampling for compliance.  I think Jim
     Stevenson mentioned right around 83 percent reduction.
               The proposed rule increases the dust exposure
     levels above those prescribed in the Act.  
               The proposed rule would allow and encourage mine
     operators to double the 2MGM3 standard on longwall faces to
     potential 4MGM3. 
               The proposed rule allows the Part 90 miner in
     outby intake samples to achieve elevated levels, levels
     higher than the current standard.
               The proposed rule would permit mine operators to
     replace engineering controls with administrative controls,
     respiratory protection on longwalls, which is prohibited by
     the Act, Section 202(h).  
               The proposed rule is very vague on enforcement and
     it appears to take the teeth out of enforcement.
               The proposed rule has no rule to require any kind
     of dust monitoring. 
               The proposed rule takes away the legal rights of
     miner representatives.  The old rule gave miner reps a legal
     mechanism to resolve and solve dust problems. 
               The propose rule reduced much of what is law or
     rule to MSHA policy.  In 1984 a Utah coal mine had an
     impeded, blocked bleeder entry off of the longwall tailgate. 
     The law said the bleeder entry had to remain open and
     passable.  MSHA policy allowed this longwall to operate and
     run coal.  Later a mine fire somehow started and all the
     miners in the affected area got robbed of one of their
     alternative escapeways, the tailgate bleeder entry on the
     longwall.
               The new proposed rule is overly complicated and
     vague and is not user friendly.  It will be misunderstood by
     the people that use it and enforce it.  And in my opinion if
     this nation's going to power its cities, industry using
     clean, cost-efficient productive coal fired steam generated
     powerhouses then it needed to fess up to the responsibility
     of taking care of its coal miners, the miners that extract
     the coal from its natural deposit, the coal that fires the
     generator, the generator that produces the power, the power
     that's available to every American that can flip the light
     switch and plug in a cord.  This nation needs to know and
     understand that behind every light switch is a coal miner
     and every coal miner deserves a healthy place to work.
               In conclusion, it appears that MSHA has exercised
     some disregard for the health and safety of this nation's
     coal miners by promulgating this new proposal.  MSHA didn't
     have to reinvent the wheel with this new proposed rule, they
     just needed to polish it, balance it, tweak it a little to
     improve it.  Instead it's turned out into a case of the bad
     outweighing the good.  Therefore, I highly recommend that
     MSHA scrap, vacate and rescind this new proposal and go back
     to the drawing board, start over, stay within the realm and
     confines of the Federal Mine Safety and Health Act, follow
     the Federal Advisory Committee's recommendation and don't
     ever come here diminishing the safety of this nation's coal
     miners.
               And I had a couple things I wrote down through the
     course of this today I wanted to say.  Directly to you,
     Marvin, you stated earlier that it would cost approximately,
     what, $20 million for about 100 or was it 200?
               MR. NICHOLS:  A couple hundred.
               MR. MONTGOMERY:  A couple hundred.  And that's
     just an approximation in your opinion to start this rule
     over.
               MR. NICHOLS:  No.  To -- If we adopted MSHA
     sampling one for one with the operating sampling.
               MR. MONTGOMERY:  Oh, okay.
               MR. NICHOLS:  If we replaced operating sampling
     with MSHA sampling one for one.
               MR. MONTGOMERY:  Well, you mentioned the word
     "reality."  Well, here's a little reality: how many miners
     have to die of Black Lung disease to justify you, MSHA, to
     spend the money that it takes and needs to fix up this
     proposed rule?  I haven't heard one coal mine operator or
     anyone say that they've agreed overall with much of what
     you've had to say.  Otherwise the overall proposal although
     it might have a good element here and there, the overall
     proposal is a wash.  
               And I wanted to mention to Paul Hewett, he asked a
     question on continuous dust monitoring.  We've just went
     through a long, drawnout dust protocol survey at Trail
     Mountain Coal Mine. I'm a longwall propman.  I'm a miner's
     rep.  I helped through that whole six-month process.  MSHA,
     the company, the union invested a lot of time and labor into
     it.  And I thought to myself we were trying all these new
     engineering controls, and some of them worked and some of
     them didn't, and we were verifying them by samples.  So we'd
     try an engineering control, sample it, trying to figure out
     if it actually helped or hurt us.
               I think continuous dust monitoring would give us a
     real time readout of what exactly our engineering controls
     were doing right now, whether they're working or not.
               Another advantage might be you asked a question it
     would be great, or I put it down you asked about the
     individual miner's exposure, and wouldn't it be great if on
     an individual miner's exposure you exercised some
     administrative controls if you knew by continuous sampling
     that the guy had exceeded the 2 mg standard over the course
     of his shift.  He'd have the readout right there in front of
     him telling him, you know, remove yourself to a less dusty
     environment for the rest of the shift.  I mean that's an
     advantage to everyone in the industry.
               And as far as your protection factor on the PAPRs,
     I got a kick out of this.  NIOSH used a couple of weasel
     words, you know, to tie this up in litigation and lawyers
     for a long time, they used the word "estimated
     approximation" of the protection factor.  Don't you guys
     come to me with estimates and approximations on my health. 
     And I'll come with some real facts.
               I'm a working stiff and in pairs we learn stuff. 
     A guy come up and asked me what's our roof control plan say
     on excessive width with the pan?  The company policy is you
     pole at 3 foot rib, the rib sloughs 2 foot you're still
     within your 5 foot width.  It doesn't need any kind of
     additional roof support, conventional timber or a spot pole. 
     I can take a tape measure and I can measure it and I can
     tell the guy it's okay.
               With this rule I can't tell anything to anyone but
     what I think about it.
               Any questions?
               MR. NICHOLS:  Well, your statement about
     continuous monitoring, that's where we all want to be.  I
     don't know if NIOSH wants to make any further comment on
     where we are with the technology.
               MR. GRAYSON:  As a matter of fact we will.  I'm
     completely in with that particular set of projects.
               Right now there were three different versions. 
     One was the machine monitor which I think a lot of you have
     talked to as the black box.
               Another is a personal dust monitor, continuous
     type, that would be worn by a miner.  It's in two pieces for
     particular reasons that MSHA needs to prove the concept if
     you will.
               And then there is another PDM of one single unit
     with only an inlet that would be used on say a lapel or a
     hat or wherever that works out best.  And that one is sort
     of waiting in the wings.
               Let me give you more details now.  The PDM-2 which
     is currently being developed by the contractor, and this is
     a direct mass reading instrument.  So, I mean that's good. 
     I mean that's where we needed to be.  It gets better
     calibration because of size, particle distributions, it gets
     rid of water droplets, things of this nature that were a
     problem before.  So from the field work that had been done
     originally on the machine-mounted continuous monitor we have
     seen two things.  Number one, we saw that the variability of
     the instrument in reading dust measurements was not the same
     as the current sampling unit.  So that's a good ray of hope.
               Now, the bad downside of that, when it was mounted
     on equipment in one case where it was the conveyor setup it
     lasted I think it was about 20-some-odd days.  When it was
     on anything that was more stringent with respect to
     vibration then it lasted less.  In one case when water hit
     one of them it went out fairly quickly, like one shift.  So
     there was obviously some ruggedness that was needed on that
     particular side of it.  
               What we felt as an agency was that -- and we
     actually did reach agreement with MSHA on this too -- was
     that it was going to be, the variability was controlled and
     it is direct reading so it was accurate, okay, we're getting
     the accuracy out of it that we needed as well, but it did
     definitely need the next step for an equipment manufacturer
     and this contractor to get together.  And we needed
     something to sort of force that to happen to where they
     could get the bugs out on the regularization side of it, you
     know, take care of the vibration problem.
               So, you know, that's where that one is sitting at
     this point in time.  And we felt that that was the proper
     way to go on that particular model.
               We have since focused on the PDM-2 for the last
     year-and-a-half roughly.  The PDM-2 version is due to be
     delivered around September.  There's a little bit of
     slippage on the contractor's part.  And we do try to hold
     them to the fire on this but they have problems as they try
     to develop this.  So we're looking at maybe feasibly around
     November when they actually deliver it, it will be in our
     hands, and we can go out in the mines and test the PDM-2
     which is the two-piece, it's a pretty good size unit here
     and another belt unit.
               The field testing should tell us whether this is
     indeed going to be accurate and variabilities under control
     and also if it is rugged enough to withstand the rigors that
     the miners will put it to in the mine environment.  If we
     get good positive answers to that NIOSH has now committed
     the next $300,000 that the contractor estimates that it will
     take to do the PDM-1.  So it's not the full, big amounts
     like $2 million that was originally started off on the PDM-1
     but some lesser amount to get the PDM-1.  So that's good. 
     That's really good news.
               And if indeed the PDM-2 proves out then there is
     every hope that the PDM-1 will prove out as well.  And
     that's the version that the miners and the operators and
     everybody wants.  That's the one that won't interfere with
     your work.
               MR. MONTGOMERY:  I have seen when it's all hooked
     to a cap, it's got a separate vacuum --
               MR. GRAYSON:  Yes.
               MR. MONTGOMERY:  -- tube coming up around your
     cap.
               MR. GRAYSON:  Yeah.
               MR. MONTGOMERY:  And vibration technology has come
     a long way due to these new noise standards.  I looked
     really hard into vibration dampening gears, motors and stuff
     like that to reduce overall noise output.
               MR. GRAYSON:  And we are, we are considering at
     this point in time, just to throw this in too, if indeed the
     technology proves out on the personal dust monitor side then
     in a recent commitment we are also looking at the
     possibility of resurrecting the machine-mounted as soon as
     the technology can prove itself.
               MR. MONTGOMERY:  And I've just got a couple of
     items with PAPRs, power air-purifying respirators.  Shoot, I
     wore one for about 12 years and I didn't know what a PAPR
     was.  I thought it was a regular airstream.  But I wore one
     because I had a choice because Section 202(h) of the Act
     says that the mine operator will supply that stuff.  I wore
     one by choice for 12 years.
               It hasn't been till the last 6, 8, 9 months since
     we went through our dust protocol survey and it got listed
     as an administrative control in our plan that I've had to
     wear one.  Everyone on the dang longwall that I work with
     wears one and it's always been by choice, for a couple of
     reasons, not just the respirator ability of it.  We, you
     know, we have these localized seismic events, they could be
     microbursts to 2.1 on the Richter Scale bounces.  If you get
     shotgun blasts by coal they're really good protection as far
     as your face, head, ears for that kind of stuff.
               The ear protection is excellent on them.  That
     might help us, you know, meet with some of the noise things. 
     But one of the inherent problems with them is you forced the
     new hepa filter on us.  The hepa filter is a better filter,
     no doubt in my mind.  It reduces and filters smaller micron
     size particles but this things a first generation, 12, 13
     year old piece of equipment.  You've modified one end of it
     without modifying the whole thing.  
               The motor, I kept urging industry to increase the
     CFM output of the motor to compensate for the reduction of
     airflow and velocity due to the hepa filter.  The other big
     concern with additional weight, vibration and stuff because
     it's heavy anyway.  
               I noticed with the new hepa filters going through
     this dust protocol survey and using so many engineering
     controls, and we went through about 20 or 30 different kinds
     of spray configurations.  You've got a lot of water, a lot
     of GPM per minute going down our wall.  You get in all that
     moisture content and the relative humidity is so high coming
     in through the back of your fan that I believe the humidity
     actually helps kind of plug up the filter with dust in
     there, thusly reducing the amount of air flow.  You get
     working real hard, the sweat, you fog up and visibility gets
     bad.
               It hasn't been till about a month-and-a-half maybe
     two months ago that they finally come out with a little bit
     less restrictive of a pre-filter for the motor that's
     allowing a little more CFM to go through the motor.  And
     it's helped out a little bit.  But if you wear one, you get
     huffing and puffing working hard in one and it's pretty
     tough conditions at times.
               And like I say, I've always wore one because it's
     been my choice to wear one.
               MR. HEWETT:  Another direct reading instrument
     that NIOSH has developed actually is Bureau of Mines
     individuals that are now part of NIOSH developed this is a
     simpler instrument, I don't know if you've seen it or not,
     but it is currently being developed by a manufacturer for
     sale that gives you a fairly accurate readout of respirable
     dust exposure.  A very small, compact unit.
               MR. MONTGOMERY:  Right.
               MR. HEWETT:  It's not the type of device that you
     heard it being developed before, the machine-mounted unit. 
     But that's available or will soon be.  But for years other
     devices, direct reading instruments that could be used for
     assessing the efficacy of specific engineering controls or
     changes to your engineering controls they've been available
     for a long time. 
               There's respirable aerosol monitors, portable
     handheld devices that can give you that instant feedback as
     to whether or not this works or that works.  Won't give you
     a compliance quality measurement but will tell you whether
     or not you've improved something on the longwall or
     elsewhere.  So these devices have been around.  And
     industrial hygienists working for companies are aware of
     these devices.  So they're available now for your company to
     buy for use in assessing efficacy of specific changes.  You
     don't need NIOSH for that, that's been on the market for 20
     years.  So I just wanted to mention that.
               MR. MONTGOMERY:  All I'm saying is by the time you
     do a complete full shift sample of one engineering control
     with the dust pump the time and labor is so intense that by
     the time you go through 20, 30 different engineering
     controls -- and we had a RAD, rapid access readout monitor
     for dust.  I don't think it does real good with aerosol mist
     in the humidity.  Kind of seems to fool them off.
               MR. HEWETT:  You're right.  I mean it has its
     problems.
               MR. MONTGOMERY:  And unless we actually used the
     pumps and tried to verify whether this worked, that worked. 
     And I'll tell you what, it was labor intensive, time
     consuming.  And I don't think MSHA enjoyed it.  I don't
     think the UMWA employees enjoyed it.  And I know my
     management probably didn't enjoy going through it.
               MR. HEWETT:  Well, the respirable aerosol monitors
     that we used are very small, compact devices, I'm not sure
     if it's exactly the same thing you're talking about.  But
     regarding my query of the industry person earlier about how
     they would use continuous monitor data, I was curious about
     that because I think there are differences of opinion of how
     these measurements will be utilized by miners and industry. 
     So I was trying to get something from industry, get an idea
     of how they expected them to be used.  Because every --
     you're both for it.  So right off the bat I have to wonder,
     well on what basis, because it could be very different
     reasons.  And so I was just trying to get some clarification
     on that.
               MR. MONTGOMERY:  And that's the only reason I
     wrote down that question, Paul, was because of the question
     you asked one of the operators previously about the dust
     monitors.
               MR. HEWETT:  Thank you.
               MR. NICHOLS:  Okay.
               MR. GRAYSON:  Let me just have one more time
     because I'm concerned about the hepa filter, using this
     Racal or whichever one you're using for --
               MR. MONTGOMERY:  It's the only one approved. 
     We've tried the Marcals.  We did a study on them.  We've got
     three guys that would just love you guys to approve it and
     give it to them.  Mechanics just liked the thing.  But it
     was a temporary approval.  It doesn't have full-time
     approval for use underground.  And so we got yanked of ours.
               MR. GRAYSON:  Yes, I just wanted to mention two
     things about that.  We are trying to work on coming up with
     a fix to the current problem, meaning clogging up and the
     low air flow that has resulted.  I'm not sure exactly how we
     can get it done but we are earnestly looking for a way to
     try and solve that problem with everybody.
               MR. MONTGOMERY:  Well, all I'm saying is that
     there's first generation technology out there.  We're still
     using it.  I mean I look the past 12, 15 years of computer
     technology, it's gone right through the roof.  Where the
     heck is our regular airstream technology?  We're using a
     dinosaur.  You would think that with all the advances in new
     materials available from stuff you could build one lighter,
     better, all that stuff, but nobody's demanded it and
     nobody's funded it.
               MR. GRAYSON:  All right.  And one final question
     or clarification.  You were sort of indicating that the
     filter to the motor was changed and it helped a little bit. 
     And you're saying now it takes maybe a certain activity
     level of the miner before you finally reach the point where
     it's actually fogging up?  Is that an accurate statement or
     could you sort of explain to me how it helped?
               MR. MONTGOMERY:  The pre-filter, all pre-filters
     are a white filter.  It looks like cloth.  They were very
     restricted.  And all they do is basically get the big chunks
     out of the way for the fan motor so they don't eat the motor
     up going through it because they move through them at high
     speed.  They've gone to a thing that looks like a piece of
     polyurethene foam now that's got very open pores in it like
     a sponge.  And I think it tends to get the bigger stuff and
     maybe some of the smaller stuff goes through and the hepa
     filter gets it later.
               But I have when we get in the high moisture areas,
     shield tip sprays, pan sprays, shear going by, high velocity
     air currents, moving the water from one location from the
     face to the walkway, you've got your head turned and you get
     a good blast it seems to, as well as the dust in the filter
     plugs up and the moisture seems to restrict them and help
     plug them up just a little quicker too.
               MR. NICHOLS:  Okay, thanks.
               The next presenter will be Tom Klausing, UMWA.
     STATEMENT OF TOM KLAUSING, UNITED MINE WORKERS OF AMERICA,
     LOCAL 2161
               MR. TOM KLAUSING:  Good afternoon.
               MR. NICHOLS:  Good afternoon.
               MR. TOM KLAUSING:  Thank you for the opportunity
     to be able to speak to you.  I'd like to read a letter that
     I sent to the Secretary of Labor that was also brought up at
     our local union meeting which will be explained in this
     letter that I will be reading, and to a motion and sent to
     the Secretary to Labor.
               My name is Thomas Klausing, President of United
     Mine Workers Number 2161.  I work at Old Ben Coal, Signal
     Mine Number 11, Coulterville, Illinois.  Our mine employs
     approximately 200 men and women and is an underground mine.
               On August 13 we had a local union meeting.  We
     discussed the public hearing in Prestonsburg, Kentucky.  A
     motion was made and unanimously passed to send the Secretary
     of Labor a letter telling how we feel about MSHA's proposed
     rules.  In the motion it was also decided and unanimously
     passed to read this letter at the public hearing in Salt
     Lake City, Utah, August 16 and 17.
               For the life of me I cannot understand why MSHA
     did not follow the Advisory's Committee recommendations. 
     The Secretary of Labor established that committee to guide
     MSHA in developing proposed rules to reform the dust
     sampling program.  The United Mine Workers, Local 2161
     supports the Advisory Committee's recommendations.  The
     representatives as well as several miners and Black Lung
     victims across the country testified before the Federal
     Advisory Panel, laid out reform needs to overhaul the failed
     respirable dust program.
               In September of 1995 NIOSH called out for reform
     in the coal mine dust program.  The Federal Advisory
     Committee sent its official report to the Secretary of Labor
     on November 14, 1996, that would reform the coal mine dust
     program.  There is no mention of takeover of the mine
     operator respirable dust compliance sampling required under
     Part 70 of the regs.  That plan policy of MSHA provides no
     legal guarantee for miners that MSHA will continue to sample
     in specific locations in mines.  There is no guarantee of
     funding for MSHA -- for the MSHA policy dust sampling. 
               The United Mine Workers and the Advisory Committee
     did not ask for an elimination of the operators' compliance
     sampling program.  Instead of MSHA increasing compliance
     dust sampling in coal mines to protect miners, the proposed
     rule reduces the amount of sampling only to six per year. 
     MSHA and the mine operators currently sampling mine sections
     about 36 samples a shift a year.  Designated work areas,
     outby, the working section would only get one sample per
     year and are not guaranteed.
               Under the current Rule in Parts 70 and 90 miners
     can read the requirements for sampling.  Those are gone. 
     There would be no standards that the miner could rely on. 
     United Mine Workers Local 2161 demands compliance.  Sampling
     needs to be increased, not decreased, and put into law, not
     policy.
               Despite the call to reduce exposure levels of
     respirable coal dust MSHA would increase respirable dust
     levels.  Under MSHA's proposed rule, Part 70.213 allows mine
     operators to double dust concentrations up to 4 milligrams
     on longwall faces where approved by MSHA.  It would also
     limit current legal rights the miners have under the law. 
     With the proposed rule MSHA cannot double -- can double the
     2 milligram standard and miners would have no legal
     recourse. 
               The Federal Advisory Committee issued a
     recommendation 15E that MSHA make no upward adjustment in
     the personal exposure level.  Mine participation to help --
     Miners' participation to help oversee the respirable dust
     sampling program lacks credibility.  The Advisory Committee
     recommended 16, 6, 16A, 16 and 19A, B and C called for an
     increase in miners' participation in every phase of the
     respirable dust sampling verification and training program
     without loss of pay.  
               UMWA Local 2161 is demanding that MSHA go back to
     the tables and bring something that is in law that can be
     enforced and that we all can understand.
               Despite the report -- That's the letter I sent to
     the Secretary of Labor.  Now this is some other stuff I
     would to bring before you.
               Despite the report of MSHA taking over the
     operators' compliance sampling, they don't.  There is
     nothing in the proposed rule on the compliance sampling
     requirement.  Those were eliminated.  MSHA announced in the
     preamble that they would be doing all compliance sampling
     generally as the frequency they are now.  Since it is not a
     rule and funding has not been guaranteed MSHA currently
     samples -- sampling is not legal, guaranteed and could be
     reduced.
               Despite reference of increase in miners'
     participation there are none in the proposed rule.  MSHA
     plans to recognize by policy miners' representation right to
     participate on an announced MSHA test visit to verify dust
     plans.  The rule does not call for single full shift
     sampling that has been supported by the miners and the
     United Mine Workers.  The proposal, however, is altered by
     MSHA's policy and other proposed rules reducing the benefits
     for miners.  Full shift sampling will only be taken only
     during abatement sampling.
               Although there are discussions about continuous
     monitoring of dust there are no rules requiring continuous
     monitors.  MSHA announced in the preamble the operators
     could test them if they want.  The proposed rule contains a
     dust sample dust control plan verification that is complex. 
     There are parts that are clearly need to be changed.  The
     procedures allows increased dust concentration to a double
     and replaced engineering control and respiratory protection
     needs to be eliminated.
               The Advisory Committee called for lower dust
     levels.  MSHA's proposal increased it.  
               The Committee called for an increase in compliance
     sampling.  MSHA's proposal substantially decreases it.
               The Committee called for an effective MSHA
     takeover of mine operators' compliance dust sampling
     program.  MSHA's proposal instead eliminates the operators'
     compliance sampling program.
               The Committee called for a major expansion of
     miners' representation participation in the dust program
     paid by the operator.  MSHA's proposal contains no rule for
     an increase of miners' participation and in some incidents
     curtails it.
               The Committee calls for the use of continuous dust
     monitoring.  MSHA's proposed rules contains none.
               The Committee calls for the miners to be sampled
     for a full shift.  The MSHA proposal includes that most
     compliance sampling.
               The Committee called for an environmental control
     to continue to be the method to control dust, coal mine dust
     and not to be replaced by respirable dust devices.  The MSHA
     proposal allows respirable dust or respirable devices to
     replace environmental controls while increased.
               I've just got a few questions now.  On a full
     shift sampling Local 2161 is demanding that the company take
     a full shift.  At our mine we work 10 hours.  We change out
     at the face.  We expect MSHA to be there taking the sample
     the same times whenever we leave out of there.
               I got a question.  When MSHA comes out after the
     company evaluates their plan verification and MSHA comes out
     and does their sampling, for instance, if it goes by
     production, the amount, are you going to take the highest
     amount of production that is made that day on day shift,
     second or third?  Can anybody tell me how that's going to be
     done?  Or is that going to be combined altogether?  Or
     exactly how is that going to work?
               MR. SCHELL:  Tom, I'm sorry, I'm not sure I
     understand your question yet.
               MR. TOM KLAUSING:  Well, let me kind of go through
     this here scenario that's going through my head.  I work on
     a 3-shift mine.  Work day, seconds and thirds.  They produce
     coal on all three shifts.  Most of the tonnage, high tonnage
     is done on seconds and thirds.  That where most of the
     records are broke because due to other reasons, you've got
     MSHA out there and it slows them down or whatever, you know,
     according to them.  And that's where the highest production
     is done.
               Now, when they do their sampling it's all going to
     be on day shift.  There's no doubt in my mind because
     neither company nor MSHA comes out either on seconds or
     thirds.  Once in a while, you know, according to the law
     they have to, once during that quarter or regular.
               I'm asking when they make that plan up, when they
     get their production report where are they going to be doing
     that sampling at or how are they going to be doing it?  How
     are you going to total that up?
               MR. SCHELL:  This is for plan verification, Tom?
               MR. TOM KLAUSING:  Yeah.
               MR. SCHELL:  What we will do is we will take the
     last 30 days of production, irrespective of the shifts.  The
     last 30 production shifts, I'm sorry.  So we take the last
     30 production shifts.
               MR. TOM KLAUSING:  Hold on a minute.  Now that
     would be a total of all three shifts?
               MR. SCHELL:  No.  We're going to look at, we're
     going to collect data on the last 30 production shifts.  So
     we'll have 30 measurements.  That will be 30 production
     shifts.  Okay?  So I'm going to array the last 30 production
     shifts from the highest to the lowest.
               MR. TOM KLAUSING:  Okay, I understand that.  But
     I'm losing it here.  I'm a little slow now.  But what I'm
     saying is that on each shift, one, two and three, are you
     taking that high -- the total number on all three shifts of
     that day or are you taking one shift at a time?
               MR. KOGUT:  It would be individual shifts.  But as
     you said, the high production in your mind is all during one
     of the three shifts that you take during a 24-hour period,
     then the top ten production shifts out of the last 30 are
     probably all going to come from that shift where you do the
     high production run; right?
               MR. TOM KLAUSING:  We'll say high particularly is
     seconds.  We'll say second shift is high, particularly the
     highest one.
               MR. KOGUT:  So then the ten highest out of that
     last 30, the ten highest are going to all come from that
     second shift; right?
               MR. TOM KLAUSING:  Yes.
               MR. KOGUT:  Right.  So then the tenth highest
     production then would be from the second shift if all ten of
     them are from the second shift.  And it would be at that
     production level that verification has to take place.
               So I think the answer to your question is that it
     would be from the production at which plant would have to be
     verified would come from that second shift.
               MR. TOM KLAUSING:  Second shift.  Okay.
               MR. KOGUT:  I want to also while I've got the mike
     --
               MR. TOM KLAUSING:  Yes.
               MR. KOGUT:  -- in my control just correct one
     thing you said earlier which is that under the proposal that
     we would be requiring sampling under an extended shift, in
     your case it would be a 10-hour shift, only during abatement
     sampling.  And, as I mentioned earlier, that's not correct. 
     Under the proposal we would require sampling to the full
     extended shift under -- for verification sampling in
     addition to abatement sampling.  So all the verification
     sampling would also be done for the full ten hours.
               MR. TOM KLAUSING:  The only way that could be done
     is through the ventilation plan.  Not through the plan
     verification itself.
               MR. SCHELL:  No.  When we verify we'll sample for
     ten hours.  We'll sample three times.  We'll sample to
     verify the plan at full shift.  We're going to do the
     compliance sampling, the bimonthly sampling; that we're
     proposing eight hours.  And the third is abatement sampling. 
     That would be full shift.
               MR. TOM KLAUSING:  Okay, could somebody tell me
     where that is in the preamble?
               MR. NIEWIADOMSKI:  The definition section in the
     proposal, you know, which defines full shift concentration
     basically defines that for what full shift is.  And it says
     that for verification it's going to be full shift including
     travel time.  So it's in the rule also.
               MR. KOGUT:  It's in the definition section of the
     rule.
               MR. TOM KLAUSING:  Could you tell me where that is
     so I don't have to thumb through it again like --
               MR. REYNOLDS:  42179.
               MR. TOM KLAUSING:  I don't have it memorized.
               MR. REYNOLDS:  42179.
               MR. TOM KLAUSING:  42179.  I will look that up. 
     Thank you.
               But that still didn't get back to my -- I think
     you answered part of it.  But on the other part of it when
     the inspector comes out and does the verification will he be
     on second shift to do that sampling or will he be on day
     shift to do the sampling?
               MR. NIEWIADOMSKI:  No, it doesn't matter what
     shift he's on that the operator is going to have to produce
     at or above the VPL.  So it doesn't matter whether it's the
     first shift or if we go back second, he has to produce at
     the higher level or else the plan will not be verified.
               So even though the production tenth highest comes
     mostly from the second shift, if we happen to verify on the
     first shift he's got to set the conditions to produce what
     he normally does during, you know, the high, during the
     second shift.
               MR. TOM KLAUSING:  So in other words you wouldn't
     ever be doing any sampling?
               MR. NIEWIADOMSKI:  No.
               MR. TOM KLAUSING:  Because, well, if second shift
     is the only one that's doing the high then if you're on day
     shift and day shift never meets that high then you're never
     doing any sampling.
               MR. NIEWIADOMSKI:  No, no.  What we're basically
     saying we're telling to the operator, this is what it is,
     Mr. Operator, since we're going to be verifying this plan
     you have an opportunity to set those conditions that are
     going to be in place and to produce at or above the VPL.  It
     doesn't matter whether or not that high production came
     always from the second shift, he's going to have to produce
     that on the first shift or else he's not going to get an
     approved plan.
               If you're saying he's never going to be able to
     produce it on the first shift but he does it on the second
     shift what would prevent him from producing it also on the
     first shift? 
               MR. TOM KLAUSING:  Well, to go back to you and
     answer, I'm going to have to add a little bit more than
     that.  What is it that MSHA does -- or would come out on
     seconds and get the plan approved?
               MR. NIEWIADOMSKI:  Well, I mean MSHA will in fact
     they'll be verifying plans on off shifts also.  It's not
     limited to just the first shift.  We'll be doing off shifts
     also.  But the thing is this, the operator's on notice that
     for us to verify for him to have an approved plan we have to
     verify at or above the high production level.
               MR. TOM KLAUSING:  I can understand all that.  But
     what I'm saying here, what I'm getting around here is that
     we'll say seconds and thirds, we agreed a while ago that
     hypothetically seconds is the one that's producing all the
     coal.  And MSHA is only coming out on days.  The only way
     they're going to get the plan approved MSHA would have to
     come out, the inspector would have to come out on seconds
     for a plan verification to get the plan approved.  And then
     after once it's approved then they have to meet that
     criteria.
               Now, are you saying whenever that inspector comes
     back the next time to do his sampling if he does not meet
     that requirement on days are you going to go back and evade
     that plan verification?
               MR. TOM KLAUSING:  What we're saying is if we have
     to go out and sample and the operator's been informed that
     MSHA will be going out there to verify the plan and he has
     to meet certain requirements that are in here, that means
     he's got to set the parameters, he's got to produce at or
     above the VPL, if we go out there on the first shift and he
     fails to meet the VPL we're going to go back and sample the
     second shift.  If he fails to meet the VPL we're going to be
     back there the third shift.
               So in order for us to actually verify the plan
     we've got to, I mean the plan has to be verified at or
     above.  If we fail, if the operator fails to produce that,
     that's going to cause MSHA to go out and sample additional
     shifts until we get the VPL, at or above the VPL.
               But we could go out on the second shift and do
     that if it's necessary, Tom.
               MR. TOM KLAUSING:  Yeah.
               MR. SCHELL:  Does that clear that up, tom?
               MR. TOM KLAUSING:  I mean I can understand that as
     far as you can go anywhere you want.  But what I'm getting
     through is that, or what I'm trying to get through, and I'm
     hoping that I am, is that the rule doesn't cover a lot of
     that stuff, you know.  It doesn't protect.  It could be the
     inspector, you now, the same as the companies, you know,
     that did the fraud, you know.  The inspector could make an
     agreement with management and say, well, we'll do this.  I'm
     not saying he is.  But there is that possibility there, you
     know.  That's what I'm saying that through the sampling, the
     verification part of it that's the way it is.
               And I don't know how other mines are.  The ones
     that I do know about most of your production, your high
     production is either on seconds and third.  But you're going
     to come on all three shifts.
               MR. NICHOLS:  It would make a difference if you're
     only looking at three shifts but we're looking at the 30
     shifts.
               MR. TOM KLAUSING:  Yeah, but in 30 shifts don't
     necessarily mean they have to be all day shift.  It could be
     part of one, part of two, part of three or all of two;
     right?
               MR. NICHOLS:  Yeah.  But as Jon mentioned, it's
     going to be the tenth highest, the ten highest.  Ten
     highest.
               MR. TOM KLAUSING:  If the company only samples on
     seconds then you won't know any other shift.
               MR. NICHOLS:  We're going to be sampling.
               MR. TOM KLAUSING:  No, the company does the
     sampling for the verification plan; right?
               MR. SCHELL:  No, no.  We do it.
               MR. TOM KLAUSING:  I meant once you, once the
     company establishes a plan they've got to meet whatever
     number they put up there right, first?  So somebody's going
     to do sampling first; right?
               MR. SCHELL:  No, we're going to come out there.
               MR. TOM KLAUSING:  You're going to do that and put
     the magic number up there?
               MR. SCHELL:  No, they're going to tell -- they're
     going to have the magic number because they have to record
     production on every shift.  All we have to do is come out
     and look at their production records.  We'll know what their
     production was on every shift and we'll count down ten.  Say
     that's your VPL.
               MR. TOM KLAUSING:  So in other words, once 30 days
     gets past then they're going to go ahead and put the -- or
     call MSHA and say we want somebody out here to instrument
     our plant verification?
               MR. SCHELL:  No.  We'll actually call and schedule
     it.
               MR. TOM KLAUSING:  You will?
               MR. SCHELL:  Right.
               MR. TOM KLAUSING:  And say that you need to be
     getting your stuffed ducks in a row for we need a production
     report for 30 days?
               MR. SCHELL:  And remember, what we want is every
     time we go out to sample we want to look at those production
     records going back six months so we can see if that
     production has gone up.
               MR. TOM KLAUSING:  Okay, while we're on that --
     and thank you for your time on that.
               MR. REYNOLDS:  I want to interrupt.  On full shift
     I just misspoke.  And I wanted to tell you the definition is
     on 42177.  I said 179.
               MR. TOM KLAUSING:  42177?
               MR. REYNOLDS:  Right.  I'm sorry.
               And, also, there's a fuller explanation in the
     section by section in the middle column on 42141 where it
     goes into it and explains.
               MR. TOM KLAUSING:  421 what?
               MR. REYNOLDS:  42141.
               MR. TOM KLAUSING:  41.
               MR. TOMB:  Mr. Klausing, I'd like to ask a
     question also.
               MR. TOM KLAUSING:  Yes.
               MR. TOMB:  Did I understand you to say that
     currently the company samples full shift?
               MR. TOM KLAUSING:  No.
               MR. TOMB:  Oh, okay.  I thought I heard you say
     that.
               MR. TOM KLAUSING:  No, they don't sample full
     shift for what I'm talking about full shift.
               MR. TOMB:  Ten hours.
               MR. TOM KLAUSING:  Yeah.  No.
               MR. TOMB:  Okay.  I just wanted to clear it up.
               MR. TOM KLAUSING:  Roughly around six hours
     because of your travel time, you know.
               MR. TOMB:  Okay.
               MR. TOM KLAUSING:  The other thing we was talking
     about as far as, and if I remember right, what you just
     brought up as far as -- let me go back here.  I've got so
     much going through my head.
               I don't remember what it was now.  Oh, on the
     production reports, will the committee have a right to, our
     miners have a right to get a copy of that production report
     that they're going to issue to MSHA for this plan
     verification?
               MR. NIEWIADOMSKI:  Since it has to be made
     available to MSHA it will be, the district manager will also
     make that available to the miners' rep.
               MR. TOM KLAUSING:  Okay.
               MR. NIEWIADOMSKI:  And everything is going to be
     posted.  Because one of the things that we're basically
     saying is we want to make sure that if in fact the reports
     we're getting from the operator we want input from the
     miners to tell us, well, I don't think that's really
     accurate, okay.
               MR. TOM KLAUSING:  All right.
               MR. NIEWIADOMSKI:  But that's why we're going to
     be posting all of that information, okay.  It's going to
     make sure that whatever information we're using to determine
     that the VPL that the operator has in his accurate.
               MR. TOM KLAUSING:  I agree.  Will we have to go
     through the district manager or their inspector to get that? 
     We can't force management to give us a copy of that?
               MR. NIEWIADOMSKI:  Well, the information that the
     operator when he submits, when he revises his plan and
     identifies the VPL he's going to also have to provide data
     with that.  And that will be made available to the miners,
     to the miners' rep.  That should be posted.
               We're saying any information we get that has to do
     with plan verification, anything, any correspondence, okay,
     on plan changes, on VPLs, on what data, we're saying that
     that information has to be posted on the mine bulletin board
     so that everybody has an idea what's going on.
               MR. REYNOLDS:  What it says in the actual text is
     "the operator must record the amount of material produced by
     each MMU during each production shift, retain the records
     for six months, and make the records available to authorized
     representatives of the Secretary and the miners'
     representative."
               MR. TOM KLAUSING:  Okay.  Well, I think that's
     all.  Appreciate your time.
               MR. NICHOLS:  Okay, thanks. 
               The next presenter will be Daryl Dewberry, UMWA. 
     Are you Curtis?
               MR. CAGLE:  Dwight Cagle.
               MR. NICHOLS:  Okay.
     STATEMENT OF DWIGHT CAGLE, UNITED MINE WORKERS OF AMERICA,
     LOCAL 2397
               MR. CAGLE:  My name is Dwight Cagle, Local 2397 of
     the UMWA, Health and Safety Committee.  I work at Jim Walter
     Number 7 Mines in Fruitdale, Alabama.  I have 26 years
     experience at three different Jim Walter mines from the old
     conventional way to longwall.  Appreciate this opportunity
     to address the panel.
               At this time I would like to talk a little bit
     about the outby areas.  At Jim Walter Number 7 mine we have
     10 to 12 mile conveyor belts that our miners must clean,
     examine daily, seven days a week.  Been exposed to a lot of
     dust.  Just last month in July we received three D1 orders
     pertaining to dust in one form or another.  One was float
     coal dust, extremely large quantities on 7200 volt power
     center and the circuits, some of the inner parts.  And 500
     foot of the prop entry which is our escape.
               Number one longwall was another.  Number one belt
     entry.  Another drive box which powers the -- runs the four
     motors that pulls the belt.  It was full of float coal dust.
               This longwall has only been in operation about one
     month.  And in our fire boss book, examiners book, this was
     listed as clear six shifts prior to this.  What I'm trying
     to get across to you is that our Alabama miners are exposed
     to dust.  And someone said that we only got probably eight
     citations on our outby people.  These other mines are like
     ours, on the day they get checked they'll send them to a
     less dusty area on the sampling days.
               That's one of the reasons we need more sampling,
     not less, and lower the standards, not raise them on our
     outby people.  These outby people also work 9.5 hours.  We
     need a full shift sampling, not 6.5, on the proposed dust
     rules.  The proposed dust rules you'll never control Black
     Lung or respirable dust. 
               You also need to stay with the engineered controls
     to reduce respirable dust, not administrative controls.  We
     do not want airstream helmets.  We tried this in '90, '91
     down there and it didn't work out.
               Due to layoff, attrition, retirement, miners dying
     we don't have enough people to trade out on the face for
     least exposure.  We also in our mine we work 600 shifts, not
     400.
               On the full shift sampling of miners you said that
     that's what you all was going to do, but it's not proposed. 
     It's only in the routine compliance sampling, not in
     routine, only in abatement sampling.  And the other miner
     that was speaking before me, we have trouble getting then
     out there on the off shifts doing the sampling.  I think I
     spoke to you one time up in Beckley about that.
               We also support the personal protection monitors,
     continuous monitors.
               Due to all this accumulation of dust we have a lot
     of air, we got a lot of water pressure.  They was going to
     shut our -- he said he could not run unless airstream
     helmets.  But with the committee and the company working
     together on it we proved him wrong on that with water sprays
     and more air, putting sprays on the shields.  But if you
     ever just let them go in those airstream helmets then just
     forget about all that.  Water sprays, we mounted sprays on
     our shields to cut down on that.  And the continuous monitor
     would work.  It would let us know when it's out of the plan.
               We hope to convince the panel to go back and use
     the Advisory Committee recommendations.
               Any questions?
               MR. NICHOLS:  Thanks.
               Is Dewberry back yet?  Is Tain Curtis?
               Does the court reporter need for these folks to
     spell their name?
               COURT REPORTER:  No.  I have a sign-in sheet.
               MR. NICHOLS:  Okay, good.
     STATEMENT OF TAIN CURTIS, UNITED MINE WORKERS OF AMERICA,
     LOCAL 1769
               MR. CURTIS:  I appreciate the opportunity to voice
     our remarks and opinions.  My name is Tain Curtis.  I'm the
     Safety Committee Chairman at UMWA Local 1769.  I represent
     approximately 203 miners.  I have 19 years of experience, 13
     of which have been in the face on a longwall and a
     continuous miner.
               I work for Energy Mining in Emery County, Utah. 
     And the people I work for and our local have a working
     relationship.  But I believe that we need better laws to
     guarantee our help as miners.  If our working relationship
     fails, MSHA has to guarantee that our health is not put into
     risk.  
               We as coal miners don't read or interpret the law,
     we just want the bottom line, which is better dust rules,
     lower exposure.  To accomplish that first we need, we feel
     we need full shift sampling.  Many mines now work longer
     shifts, therefore more time is spent in the face.  This is
     the biggest item that has been requested by the miners I
     represent.  The old 8 hour or 480 minute sample is or should
     be something of the past.  Let's update this law now.
               At our mine on a 4/10 schedule a miner spends
     approximately 117 hours more a year in the face.  This does
     not include any overtime work.  So please let's update this
     to our current mining practices.  Miners see and understand
     this full shift sampling.  They know when and where a dust
     pump is or if the full shift is being sampled.  They know
     their exposure of a full shift sample and of that particular
     shift.
               Number two, we need to lower the dust exposure of
     miners, so under no circumstances should the 2 milligram
     standard be higher than the current standard even with the
     use of airstream helmets or administrative controls.  Our
     people now use airstreams to lower exposure of the 2
     milligram limit on a personal basis, not the 4 milligram
     limit that is proposed.  We need a better plan and better
     technologies to accomplish these plans.
               Number three, several years ago I heard of a black
     box on the tailgate of a longwall.  I thought this was great
     to have something that would tell us whenever we came out of
     compliance, then we could fix the problem before exposure to
     miners was out of hand.  I don't see anything that would
     encourage the development of something like this.  We need
     to use our technology to our advantage.  We have proven how
     technology has increased coal production over the years.
               Earlier Mr. Bruce Watzman, I believe, mentioned
     the personal protection of an instrument for personal dust
     readings with a realtime readout.  Something like this would
     be idea for the coal miners that work in these areas.
               You mentioned how that would affect us, what we
     could do with that.  Well, we as miners because of the Act
     have miners' rights.  If we go out of compliance and we can
     see the realtime data in front of us it would give us an
     opportunity to exercise our miners' rights and request to
     work in a lower dust area.  That would be a great advantage
     to several miners that I know.
               Number four, at our mine we have a program called
     LMPCP, labor management positive change process, it doesn't
     always work but sometimes we hope that it does, where we,
     the miners, take problems and come up with solutions.  I
     don't see any participation of miners in this plan or in
     this plan verification or, if problems persist, any input
     from the miners.
               Number five, our mine is located in the mountains
     overlooking Huntington, Utah.  We have three intake portals
     that stretch for miles going up the mountain range, 9 3/4
     miles of beltline and as many miles or more of roadways, and
     you're only requiring one dust sampling to be taken for this
     amount of the mine where these people work?  These miners
     need to be able to carry a dust pump with them so that the
     areas that they travel and the exposure levels that they
     have encountered in their regular work schedule are recorded
     and their exposure is told to them.
               In closing, I appreciate the opportunity of making
     my remarks.  And I enjoy my family and want to be able to
     spend a long productive life with them.  I also understand a
     little bit about economics and still want to have a job
     tomorrow.  So there needs to be common sense.  Everybody
     needs to take part in this.  I would like to see a final
     rule that addresses my concerns and does so in a simple and
     concise manner that most coal miners can understand.
               Thank you.
               MR. NICHOLS:  Thank you.  Daryl, how much time
     will you need?
               MR. DEWBERRY:  About 15 minutes.
               MR. NICHOLS:  Jim Weeks follow you and he's asked
     for up to 45 minutes.  How about if we take a 10-minute
     break.  Let's come back at 2:30.  And Daryl, you will be up
     next.
               (Brief recess.)
               MR. NICHOLS:  Let's get started back.  I had been
     told that Daryl Dewberry and Dwight Cagle, Dwight told me
     they were going to switch places and I forgot that.  So Jim
     Weeks will be up next and then Daryl Dewberry will follow
     him.
               So, Jim.
     STATEMENT OF JIM WEEKS, CERTIFIED INDUSTRIAL HYGIENIST,
     CONSULTANT TO UNITED MINE WORKERS OF AMERICA
               MR. WEEKS:  When we were in Morgantown and in
     Prestonsburg you all were all on the same level with us and
     now I have to look up to you.  Just because you're up there
     higher don't let it go to your head.
               MR. NICHOLS:  We hoped that would make the meeting
     a little less rougher but it don't seem to be working.
               MR. WEEKS:  Oh, no.  No.
               I'm Dr. Jim Weeks.  I'm here as a consultant to
     the United Mine Workers.  I was a member of the Dust
     Advisory Committee.  I'm currently an associate professor at
     the George Washington University School of Public Health. 
     And I'm a certified industrial hygienist.
               First I would like to go over some history.  And
     in my case it's somewhat personal.
               I first became acquainted with the coal industry
     in 1972.  And amongst the miners that I met in West Virginia
     the most, the hottest topic that people were talking about
     was the dust monitoring program.  At that time they said it
     was ineffective, inaccurate, a farce, etc., etc.  Very
     critical of the whole program.
               The views were presented more explicitly during
     hearings in 1977 and '78 during rulemaking at that time. 
     And when I went to work for the International in 1982, and
     ever since, miners' views on the operator dust sampling
     program were essentially the same.  They were the same
     during meetings of the Dust Advisory Committee and they were
     the same when presented to this panel in Morgantown and in
     Prestonsburg and here.  
               And miners speaking then, that is in Morgantown
     and Prestonsburg and here are the sons and daughters of
     miners that spoke some 30 years ago on these issues.  This
     is two generations of miners that have had to contend with
     mine operator cheating and agency indifference.  This is far
     too long.  And some of your proposals are responsive to
     these problems that miners have raised but many are not.
               Now, I'd like to comment on a number of issues,
     not in any particular order.  And then I'll get into a more
     organized presentation soon.
               First of all, one of the problems with this
     rulemaking is that the public relations about the rule
     differ from the actual rule itself.  A couple of examples:
               First is the meaning of a full shift.  Now, if you
     ask any miner here, any person on the street what's a full
     shift it means the shift from beginning to end.  If it's 10
     hours, it's 10 hours.  If it's 12, it's 12, etc.  And the
     rule is advertised as being responsive to full shift
     exposure.  But when we look at it, first of all it's not
     clear what exactly is meant by full shift and in what
     circumstance.  
               And, in fact, I have a question for you all, and
     that is there are at least three different kinds of samples
     that you propose taking, one for compliance, one for
     abatement and one for plan verification.  And I think full
     shift has a different meaning in each setting.  So I would
     like to find out where in the rule it defines full shift for
     those three different kinds of samples?  And I don't know
     why they're different.
               MR. NICHOLS:  Where was it?
               MR. REYNOLDS:  It's on page -- It's 70.2(j).
               MR. WEEKS:  What page is that?
               MR. REYNOLDS:  I'll read it for you.  It's on
     42177 in the third column at the bottom.  It's 70.2(j).
               MR. WEEKS:  Right.
               MR. REYNOLDS:  It says, "full shift means an
     entire work shift including travel time but excluding, for
     purposes of bimonthly sampling only, any time in excess of
     480 minutes."
               MR. WEEKS:  I don't understand why it's defined
     that way.  It doesn't seem to serve any useful purpose and
     it is, frankly, confusing.  And it seems, you now, I think
     that full shift should be defined in the sort of common
     sense, everyday way in which people use it, and that is a
     full shift from beginning to end of the shift.  I don't see
     what's gained by defining it in this somewhat elliptical way
     even at that.
               Okay, let me -- If someone comes up with a
     response to that later I'll be glad to hear it.
               A second place where public relations --
               MR. SCHELL:  Jim, I'll respond to that now.
               MR. WEEKS:  Okay.
               MR. SCHELL:  It's what I said this morning is for
     purposes of plan verification and abatement we're talking
     the full shift.  We did in this proposal for purposes of
     compliance sampling say that we felt that since we were
     there, since we knew what the -- and since compliance
     sampling is done by an inspector we're there, we know what
     plan parameters are in place, we know what the production
     is, we know where the miners were, that it was our judgment
     that since the primary reason for compliance sampling is to
     assess whether the plan continues to be appropriate we
     thought we could do that on 8 hours.
               But again I'll come back we asked for specific
     comments from the public on whether compliance sampling also
     should be full shift.
               MR. WEEKS:  Yes, I think it should.  And let me
     take it one step further.  The, I think the exposure limit
     should be adjusted for the full shift so that it is
     proportionately adjusted. 
               For example, if it's a 10 hour shift the exposure
     limit should be at .8 of 2 which is 1.6 milligrams.  Let me
     explain why.  What you get from that is that at the end of
     that shift a miner working 10- hours at a 1.6 standard will
     absorb exactly the same amount of dust as a miner working 8
     hours at a 2.0 milligram standard.  So what we're looking
     for is essentially equivalent level of risk for different
     shifts.
               MR. KOGUT:  Let me respond to that and direct your
     attention to the definition of "concentration" at page 42177
     because we are in fact making that, proposing to make that
     kind of adjustment.
               MR. SCHELL:  Everything is adjusted to an 8-hour
     equivalent, Jim.  I think we're doing just what you said.
               MR. KOGUT:  There's further explanation of that
     adjustment in section by section analysis for that
     definition.  And we also solicited comments specifically
     about the method that we're proposing to make that
     adjustment.
               MR. WEEKS:  Well, then I assume that you then
     agree with the basic concept that there should be adjustment
     for shift length, essentially, or adjusting it to an 8-hour
     shift equivalent.  And then I would go back, I think then
     for compliance purposes and any other purposes if you're
     going to take a full shift sample it should be a full shift
     sample for every time you take that kind of measurement.
               Now, part of the reason for this is that if you,
     say in compliance sampling if you select a particular 480
     minute interval for sampling the mine operator can cheat on
     your very simply, and they would just hold off on production
     until you've left them and they'll go ahead.
               Now, I confess to being, frankly, very cynical on
     this issue.  But then we've had 30 years' worth of operator
     cheating and we don't see any abatement of that.  And I
     don't think you should construct a rule that's going to
     tolerate opportunities for operators to cheat.
               Okay, now let me go on to another issue where the
     public relations somewhat differ from the actual rule.  And,
     Ron, I confess to nitpicking on this, but it makes the
     point.  The data that you presented coming from a real mine
     with five measurements averaged out to less than 2 and yet
     two of the measurements were over, were 2.4 and 3 something,
     anyway, they were clearly in excess, I think it's a welcome
     change that the agency will be able to detect and take some
     action against excursions such as those.  And I think that
     is the, one of the strengths of the single sample proposal
     is that you do that.
               However, what that, what the data that you
     presented doesn't show is what happens to samples between 2
     and 2.33 milligrams?  And there weren't any on your data. 
     And I know in the interim sample, the interim single sample
     EP, exposure program, for samples that came in at that level
     you state that you'd go back and take another sample, a
     compliance type sample.  I couldn't find any reference to
     that in the proposed rule.  So if you're going to do that I
     think it should be in the proposed rule.  I think you should
     do more than that but I don't -- I think you need to clarify
     what happens to samples between 2 and 2.3.
               But that is something that you're going to do,
     that you'd consider doing?  It's not in the rule; am I
     correct about that?
               MR. SCHELL:  That is correct, Jim.
               MR. WEEKS:  Now, let me go back again to an issue
     that was raised earlier about why NIOSH was not involved in
     the plan verification proposal.  NIOSH has responsibility
     for certifying respirators, it has responsibility for making
     recommendations about exposure limits, it has responsibility
     about sampling protocols, and a variety of other functions
     all of which are at the heart of the plan verification
     procedure.  So it seems to me logical that NIOSH should have
     been involved in that part of the proposal because they have
     jurisdiction expertise and regulatory functions for those
     particular aspects of that rule.
               Okay, I'll let that question just dangle out
     there.
               MR. REYNOLDS:  Are you referring to the -- I mean
     there is one proposal which is a joint proposal but because
     of the fact that the plan verification program was
     established in an administrative process for MSHA to
     exercise its regulatory authority I didn't think it was
     appropriate for NIOSH to do it as a joint proposal.  Now,
     you might wish to hear what NIOSH thinks.
               MR. WEEKS:  Well, NIOSH has specific regulatory
     authority over samplers.  It has specific regulatory
     authority over approving respirators.  And it has expertise
     in all of the other areas and has recommendations in the
     criteria document that pertain directly to issues of
     sampling and upward adjustment of the exposure limit and so
     on.  And it seemed to me NIOSH should have been included in
     that process.
               MR. REYNOLDS:  I mean in terms of consultation
     they were, in terms of all those factors.  But they're not a
     part of the regulation.
               MR. WEEKS:  Right.  No, I understand that.  Well,
     we understand where we disagree and where the question lies. 
     And if any of the NIOSH people have any comments to make on
     this I'd welcome it.
               MR. NIEWIADOMSKI:  I think we did make the comment
     earlier, Jim.  The criteria document that was published does
     indeed contain all of NIOSH's policy on this particular
     issue discussed here.  That clearly was sent to MSHA.  And
     there are basically a number of complicated issues I think
     that have been involved.  And MSHA has considered our
     document and the Advisory Committee's comments.  I think in
     their regulatory authority, which we don't have, again
     specifically by statute, that they tried to address the best
     that they felt that they could those particular issues.  But
     I can't speak any more to MSHA's role.  But our, you know,
     our part is published.
               MR. WEEKS:  Right.  Well, the Mine Act requires
     that when recommendations come from NIOSH that MSHA has the
     responsibility of either adopting it or explaining why
     they're not.  And there are several of the recommendations
     in the criteria document in which I haven't heard an
     explanation from MSHA why you did not adopt issues
     pertaining to sampling, exposure limits and the like. 
               So, I'll continue.
               MR. REYNOLDS:  I think the answer for the most
     part is that they were outside of the scope of the
     rulemaking particularly.
               MR. WEEKS:  I just, I just don't buy that.
               MR. NICHOLS:  Well, I think we understand your
     comment.
               MR. WEEKS:  Okay.  Now, let me clear up a couple
     of misconceptions about the use of respirators.  First of
     all there's the conception that mine operators are in some
     sense prohibited from using respirators.  This is just
     absolutely not true.  In fact, under the Act, under the
     appropriate section, which I don't remember offhand, mine
     operators are in fact required to provide respirators if
     exposure exceeds the exposure limit.  And they can on their
     own require miners to wear respirators under any
     circumstances anyway.
               What operators are prohibited from doing is using
     respirators as a substitute for engineering controls.  We
     support that.  And we think that that approach is
     appropriate.
               A second misconception is that the union is
     opposed to respirators.  We are not opposed to respirators. 
     There are circumstances when an exposure goes above the
     exposure limit in which it's entirely appropriate and in
     fact necessary for miners to get the protection that
     respirators provide.  It should be temporary while the miner
     operator finds the engineering controls or whatever is
     necessary to bring exposure down to within the exposure
     limit.
               So it's just not the case that we're opposed to
     the use of respirators.  We're opposed to using them in any
     sense that would make them permanent or as a "substitute"
     for engineering controls.  Now, I realize that that's
     heavily loaded rhetoric, the substitute for engineering
     controls.  And to some extent the disagreement that we have
     over that has to do with what in fact is going on regardless
     of what it's called.
               And what we are looking for is a high quality
     program of respiratory protection in which miners, in which
     there is a respiratory protection program similar to the one
     that OSHA has that includes training, fit testing if it's
     appropriate, education, maintenance of the respirator,
     calibration, etc., a high quality program that actually uses
     respirators in fact the way they're supposed to be used. 
     And I don't know that there is anywhere in the MSHA
     regulations where that kind of respiratory protection
     program is called for and in fact required.  But that's what
     we want.  And we think it's appropriate to use them in those
     limited circumstances that I described.
               Now, the real, an underlying difficulty with this
     rule, and it has to do with getting to the respirators, is
     that there are a number of hurdles to get over on the road
     to getting to respiratory, adequate respiratory protection. 
     The first of them and the most difficult is the
     determination of when the mine operator has exhausted
     engineering controls.  Now, that is a, that's a
     determination that has -- that rests upon fairly, frankly
     vague requirements.  They're in the -- they're here
     somewhere.  But they have to do with whether or not the
     engineering control is totally disproportionate to the
     benefits, whether or not it works, whether it reduces
     exposure and so on.
               These are requirements that were laid down by the
     Federal Mine Safety and Health Review Commission.  They were
     written by lawyers, they were not written by miners.  And I
     think that's part of the problem, if you'll forgive me.  And
     they are quite vague.  What's missing from the criteria for
     making that decision is anything specific about, for
     example, identifying dust sources, identifying specific
     controls that are used throughout the industry, controls
     such as slow, deep cutting, such as homotropoventilation,
     such as the use of water infusion and controlling dust from
     shields, controlling dust that comes from the intake airway
     and so on.  There is no list of engineering controls that
     are used throughout the industry that are common and which
     you could go down and say, I'm not saying you should say
     every operator has to try every one of these but there needs
     to be something specific that we can, we the miners and
     others can hang our hats on and say, yes, you've done a
     systematic job in evaluating engineering controls.
               In my experience on this issue I first went to a
     mine out west in which this very issue was up for
     discussion.  The mine operator presented at first glance a
     fairly impressive list of all of the engineering controls
     that they had attempted, those that I just mentioned and
     others.  And they went and they also talked about the ways
     in which they had evaluated the effectiveness of a powered
     air-purifying respirator.  They did that in a fairly
     straightforward and competent way by putting samplers inside
     and outside the face shield and measured exposure under both
     circumstances.
               Incidentally, the protection factor that they got
     from their data was 4, it wasn't anything close to 24 as you
     mentioned earlier.
               MR. NICHOLS:  And we're using 2.
               MR. WEEKS:  What's that?
               MR. NICHOLS:  And we're using a protection factor
     of 2.
               MR. WEEKS:  I understand that, yes.  Right.
               But when I looked closer at what that mine
     operator had done they had never identified sources.  They
     had never systematically evaluated the effectiveness of any
     of their controls.  And, in short, it was a very sort of
     superficial and haphazard assessment of those engineering
     controls.  And they put that off on us saying we tried all
     these things, what we want to do is use air-purifying
     respirators.
               I was totally unconvinced.  And yet I can imagine
     a presentation by a mine operator coming to you or coming to
     the District Director saying we've tried all these things,
     we're requesting a permit to use powered air-purifying
     respirators in by the shear.  Then you'd be in the position
     of trying to evaluate that.
               So one of the problems with that whole process is
     that the criteria are vague.  They are quite vague.  And
     there is no place in which more specific criteria are laid
     out.  
               A second problem with them is that it does not
     appear at anyplace are miners encouraged or permitted to
     participate in that decision.  And I think this is a very
     critical decision that has a direct material effect upon
     miners.  And yet when the mine operator makes his
     application there's no requirement that it be given to the
     miners or the miners' rep.  There's no requirement even that
     the district director would give it to the miners or the
     miners' rep.
               And I can conceive of a situation in which a mine
     operator wanted to go to -- wanted to claim that he had
     exhausted engineering controls, he said nothing about it to
     the miners, and the first thing the miners would know about
     it would be if respirators came down and said, here, you
     have to use this if you're in by the shear.  I think if you
     want to make a number of miners pretty angry that you would
     allow that to happen.  But I think it's really, it's
     absolutely essential that on this issue miners participate
     actively in making that decision about whether or not
     engineering controls have been tried or exhausted or so on.
               I see you looking in the book.
               MR. REYNOLDS:  Under 75.370 which is the existing
     part of the CFR it says that the mine operator shall notify
     the representative of miners at least five days prior to the
     submission of the mine ventilation plan and any revision to
     a mine ventilation plan and anything associated with the
     request to get interim ventilation plan approval to use
     PAPRs or administration controls would be included in that
     provision.
               MR. WEEKS:  Okay.  I was actually hoping I would
     ferret something like that out.
               MR. REYNOLDS:  One other thing I meant to point
     out too.  In the, in 70.212, the proposal, it does
     specifically say as part of the ventilation plan the
     operator would have to, if they did want to use PAPRs and if
     MSHA did approve the use of PAPRs in a limited situation
     they would have to incorporate it in the plan, a respiratory
     protection program for the use of PAPRs following the
     procedures specified in 72.710, which is an existing part of
     the CFR. 
               MR. NIEWIADOMSKI:  Jim, on this 70.220 which I
     mentioned earlier, what information must I, the operator,
     post on my bulletin board?  We make it very clear, all
     written notifications from the district manager regarding
     any aspect of the plan verification process must be posted. 
     So any request by the operator to make a determination, this
     correspondence between the district manager and the
     operator, that has to be posted on the mine bulletin board.
               MR. WEEKS:  What's posted on the board is the note
     from the district director; right?
               MR. NIEWIADOMSKI:  The district manager.
               MR. WEEKS:  Or district manager.
               MR. NIEWIADOMSKI:  Anything to do with the plan
     verification process --
               MR. WEEKS:  Right.
               MR. NIEWIADOMSKI:  -- which is if the operator's
     requesting MSHA to make a determination, there's
     correspondence as far as acknowledging receipt of that, all
     of that has to be, is going to be posted on the mine
     bulletin board.  So mine operators will be aware of every
     step, you know, they'll know exactly what is transpiring. 
     It's not that all of a sudden they find out on the mine
     bulletin board is that here's a revised plan that requires
     the use of respirators.
               MR. WEEKS:  Yeah, but they might find it out maybe
     five days before which is a rather short period for -- I
     mean, I can -- and trying to evaluate this in five days, I
     mean that's just not going to happen.  Five days is too
     short.
               Okay, there are provisions in there, and I think
     it would help the rule enormously if those could be spelled
     out clearly that miner participation is, in making this
     decision is encouraged, it's essential, that mine operators
     have to give this plan to the miners' representative at the
     same time it's given to the district manager.
               Okay.  Now, there are some things in the proposed
     rule that we in fact support.  For example, we support
     ending the operators' dust monitoring program.  This program
     has been riddled with corruption for a long time.  It's been
     the laughingstock of the industry.  It was the fox guarding
     the henhouse, etc.  We say farewell to the fox and good
     riddance.  We have had it with this program.
               What that program did, however, which yours
     doesn't is it sampled 30 shifts in the course of the year. 
     Your proposal samples only six.  And that's the problem.
               The biggest difference actually between the
     existing plan and the proposed plan is that the existing
     plan for compliance sampling is done by my operators and the
     proposed plan is to be done by MSHA.
               Okay, secondly, we also support MSHA taking
     responsibility for sampling.  This is not a takeover of the
     operators' program.  I think MSHA is the only reasonable
     choice for doing this sampling for compliance and other
     purposes.  Delegating this task to mine operators was a
     mistake.
               Third, we support MSHA having the authority to
     determine compliance based on the results of a single
     sample.  That's critical.  I will say much more about that
     in a few minutes.  And we support eliminating the use of the
     optional operator sample for determining the percent quartz
     in airborne dust.
               Now, let me go on and talk about the single sample
     proposal.  I apologize in advance, this is going to be a
     little tedious, but so is your proposal.
               Briefly, the single sample policy, that is
     exercising the authority to issue a citation based upon a
     single sample best meets the requirements of the Mine Act. 
     The Act requires each operator to maintain each miner's
     exposure to respirable dust on each shift at or below 2.0
     milligrams per cubic meter.  That sentence is the heart of
     it, and there are many implications.
               As you know, the wording of this section of the
     Mine Act is a real pain in the neck.  And at the risk of
     inflicting that on you I want to go over it just one more
     time and emphasize a few things.
               Section 202(b)(2) of the Mine Act reads as
     follows:  "Each operator shall continuously maintain the
     average concentration of respirable dust in the mine
     atmosphere during each shift to which each miner in the
     active workings of such mine is exposed at or below 2.0
     milligrams of respirable dust per cubic meter of air."
               "Each" occurs in that sentence three times.  That
     is one sentence also, which is a -- whoever wrote that is, I
     don't know, it's trouble.  I come from a family of teachers
     and we couldn't, you know, say "good morning" without having
     our grammar corrected.  And if any of my teacher relatives
     saw this sentence they would have a fit.
               Okay.  Now, the word "each" it implies taking one
     at a time, I looked this up in several dictionaries, I
     looked it up in the thesaurus, it always means the same
     things, it means "one at a time."  That means one operator
     at a time has to perform as this rule requires.  It means
     that one -- that the exposure of each miner has to be
     maintained and the exposure on each shift has to be
     maintained.
               I think the terminology of the single shift sample
     actually could be made more specific by referring to a
     single miner sample which would create the more clumsy term
     single shift single miner sample.  But that would be the
     natural derivation of this sentence.
               MR. NICHOLS:  I just heard something that got more
     confusing than this rule.
               MR. WEEKS:  That's where you've led us.  I'm not
     proposing that as an alternative term.  I just wanted to
     make the point that we're talking about each miner, each
     shift, each operator.
               I'm going to go on to the issue of the average
     concentration.  Additional statutory requirements are
     specified in 202(f).  It's a longer sentence, in fact, and
     it reads as follows:
               "For purposes of this title the term 'average
     concentration' means a determination which accurately
     represents the atmospheric conditions with regard to
     respirable dust to which each miner in the act of working is
     exposed."  And there's a parenthesis one which I will skip,
     go on to parenthesis two which is "as measured after 18
     months over a single shift only unless the Secretary of
     Labor and the Secretary of Health and Human Services and in
     accordance with provisions of Section 101 of the Act
     determines that such single shift measurement will not after
     applying valid statistical techniques to such measurements
     accurately represent such atmospheric conditions during such
     shift."  I won't repeat that.
               Now, at first the trouble that comes up with this
     paragraph has to do with the meaning of the term "average." 
     This is, what they propose here is not the ordinary meaning
     of average.  When one thinks of an average we think several
     measurements, you add them together, divide by the number of
     measurements.  But the definition in this rule, in the
     statute is a determination which accurately represents the
     atmospheric conditions with regard to respirable dust.  And
     the critical test here is whether a measurement accurately
     represents conditions.  There's no reference at all to a
     number of measurements outside of possibly doing it over
     several shifts.  
               Assuming, apparently, that a single sample might
     not accurately represent conditions during such shift
     Congress I think suggested that an alternative to taking the
     single miner single sample sample -- single miner single
     shift sample was to take samples over a number of shifts. 
     Now, the only way that the average exposure based on
     measurements over several shifts would accurately represent
     conditions on each shift is if there was no variation other
     than sampling error from shift to shift.  Congress might
     have assumed that there was no variation and that
     variability of -- the only variability resulted from
     sampling and analytical error.  
               This assumption of no variation between shifts is
     obviously false and is pointed out in the preamble that
     there is substantial variation between shifts.  So that to
     take -- to try and estimate exposure on one shift by
     sampling several would be like trying to measure Tom's
     height by measuring Dick and Harry's height also and taking
     an average.  I mean it's that ridiculous.  I think that
     taking several samples over several shifts and taking the
     average and pretending that that applies to a single shift
     is just not -- makes, logically makes no sense.
               This and the implication of my statement is that
     the operator sampling program in addition to its other
     problems does not meet the requirements of the Act because
     it's based on an average of several shifts.  And I think
     that's the case.  It did not meet the requirements of the
     Act because it assumed that shift to shift variation was
     non-existent which is not the case.
               And to repeat what I said before, the act requires
     controlling exposure on each shift not on the average of
     several shifts.  The current MSHA practice is to sample
     exposure of several miners on one shift.  There have been
     some efforts to satisfy each shift requirement by taking the
     average exposure of several miners on that one shift.  But
     the same problem exists: there is substantial variation
     between miners so you can't take an average of each miner by
     measuring the exposure of all of those on one shift and
     taking an average.  It's the same kind of problem, it's
     complementary.
               Now, let's see.  So I go back to the question what
     did Congress mean when it referred to an average?  Well, if
     you look at the places where that word occurs each time it's
     used, it's used in relation to respirable dust it applies to
     dust exposure on each shift in Section 2(b) or such shift,
     that is each shift.  It is the average exposure over a
     single shift with which Congress was concerned.
               The only conclusion that I come to is that the
     only meaningful average that they were talking about was a
     time weighted average which all of the industrial hygienists
     are very familiar with.  But exposure varies not only from
     shift to shift, miner to miner but it also varies in the
     course of a shift over a day.  And the conventional practice
     of industrial hygienists is to average that sample, that
     exposure out in the course of a day in doing what would be
     called a time weighted average.  I think that's what
     Congress meant.  I think it's the only logical conclusion to
     reach.
               Now, this, I went through this exercise to provide
     what I considered to be some support to the agency's claim
     to issue citations based upon a single sample over a single
     shift on a single miner.  Because I think that that is the
     only sampling protocol that meets the requirements of the
     Act, if you look at the way the Act is worded, because
     several other options are essentially ruled out.  And I
     didn't see an argument like this in your preamble.  I
     haven't seen it in any of your other things but I think it's
     an important sort of analysis.
               Now, let me go on to the accuracy problem. 
     Samples are also required to accurately represent conditions
     on the shift.  NIOSH has established criteria for accepting
     methods of measurement.  We think that those criteria are
     fine, that the existing measurement techniques meet those
     criteria.  We think it's appropriate.  And I don't imply any
     criticism of the NIOSH accuracy criteria as applied to
     sampling equipment.
               So I want to go on to a different approach to this
     question of accuracy.  And there is I think a more generic
     meaning for "accuracy" and that is it has an absence of
     bias.  Bias is known to exist in the operator sampling
     program.  The large number of criminal citations for
     submitting fraudulent samples is ample testimony.  In fact,
     if it were not for that bias in the operator sampling
     program I don't think we would be here with this rule today
     because that program did not meet the requirements of the
     Act and either each miner, each shift, etc., or in terms of
     accuracy.  And that's been demonstrated in many ways.  I
     think MSHA samples are biased also but in a different way.
               Now, several investigators, myself included, have
     noted that -- but I didn't have it published so I probably
     shouldn't say that -- but have noted that when MSHA takes
     samples over several days the value of the sample on the
     first day is on average higher than the value on subsequent
     days.  There is this unique source of bias in MSHA samples
     when multiple samples are taken.
               The most plausible explanation for this is that
     when the miner operator knows that when an MSHA inspector is
     coming to his mine the operator makes certain that dust is
     adequately controlled.  But on the first day, the only day
     when an inspection is or would be called unannounced, the
     operator has less time to control dust.  On later days in
     which the operator reasonably expects the inspector to come
     back he knows, he can take steps to anticipate the
     inspection and get control of the dust.  I think that's what
     happens.
               The logical implication is that dust concentration
     measured on the first day is less biased, that is to say
     it's more accurate.  It's a more accurate representation of
     conditions than dust measured on later days.  It should be
     obvious that a first day sample is exactly the same as a
     single sample.  And for this reason I would argue that the
     single sample is a less biased sample.
               Now, there's some other implications from this
     finding of bias in the MSHA sampling program.  First of all,
     whenever MSHA does follow-up sampling such as, for example,
     for abatement purposes it shouldn't happen the next day
     because you get into that same problem.  The first day
     sample is one value, later day samples are lower.  If you go
     to continuous -- your abatement sampling exactly the same
     the day after you find a violation you're going to find
     compliance.  I'm just making that as a, you know, it's a
     bald prediction, but you're going to find it more often than
     not.
               Therefore, I think follow-up samples should be
     unannounced and taken at random.  And I would suggest, for
     example, you know, you take 15 or 20 shifts and at random
     pick three of those where you're going to go back.  You
     don't tell anybody about it and you go sample on those days. 
     They should be unannounced inspections in order to achieve
     the same lack of bias as what you get on the first.
               I think this phenomena, this bias amongst MSHA
     samples, also illustrates that mine operators know how to
     control exposure to dust and that these controls are
     feasible.  Consequently, I think complaints about the lack
     of feasibility should be taken with some degree of
     skepticism.  I think this colors our views about operators
     having exhausted engineering controls.
               Again, some history is important here.  When the
     Mine Act was first passed in 1969 it was the Coal Mine
     Health and Safety Act, for those of you who are not in the
     coal mining industry.  Mine operators said we can't do it. 
     We cannot meet a 2 milligram standard.  And they went to the
     Supreme Court.  They went everywhere they could to say we
     can't do it.  Yet within six months after that Act went into
     effect dust exposure declined from around 7 milligrams to as
     I recall maybe around 3 milligrams.  That is a drastic drop. 
     And it certainly belies any complaints that they couldn't do
     it.  And within a year after that they were on a regular
     basis down below 2.  And at this point in time continuous
     mining sections are regularly below 1 milligram per cubic
     meter.  
               So that the complaint 30 years ago that they can't
     do it simply was not borne out in fact.  And I think that
     when operators make that sort of claim we certainly treat it
     with a certain degree of skepticism.
               Now, what happened in 1969 is that the agency did
     not accept reality, it did not accommodate itself to current
     practices in the industry.  What the agency did at that time
     was changed it, they changed conditions, and dust exposure
     came down, fatalities became less frequent, and thousands of
     miners' lives were saved because the agency did not accept
     reality but in fact changed it and improved conditions in
     the nation's mines.  So I don't think there should be any
     "accommodation" to reality now as there was then, as there,
     you know.
               Okay, a third implication of this bias is that
     MSHA has no provisions and no consideration to guard against
     operator cheating.  Of the many methods of cheating that
     miners have spoken about in the past many of them do not
     require operator control of the sampling process.  For
     example, during sampling operators could shut down certain
     jobs, require maintenance that would prevent dust sources
     from generating dust, could do any number of things.  They
     could even go and turn off pumps or plug them up in some
     fashion.  If the MSHA inspector is not there they could do
     that and just stop the whole sampling process, and other
     ways that MSHA could have of preventing that.
               But I don't see anywhere in this rule that MSHA
     anticipates doing things that would prevent operator
     cheating.  For example, there is no requirement that the
     MSHA inspector stay on the section the whole time that
     sampling is done and observe what's going on.  You know,
     that may be your intention but it's not in the rule.  And we
     want something like that, we want some guarantees that
     operators will not be able to cheat on this kind of sampling
     either.
               So, in brief, on the issue of supporting the
     single sample rule we think the statute supports it, we
     think MSHA should not be naive about its own samples and
     responding to the information that you have about biases in
     your own sample, but should take some active steps to
     continuously get accurate samples.
               Now, on that regard, on that issue there's
     actually one sentence.  The proposal on single samples is
     one sentence.  It's only 27 words long.  I hate to suggest
     taking any words away from it but I do have this one
     suggestion.  It reads as follows:
               "The Secretary may use a single, full shift
     measurement of respirable coal mine dust to determine
     average concentration on a shift..."  So far so good. 
     "...if that measurement accurately represents atmospheric
     conditions to which a miner is exposed during such shift." 
     That proviso if it meets, if -- let's see, "if (it)
     accurately represents," etc., is trouble.  What that can
     mean is it could open you up to challenge on every single
     citation that you try to issue saying it's not accurate,
     because that criteria is right there in the rule.
               And I you should eliminate everything from the
     "if" to the end because that issue of whether it accurately
     represents atmospheric conditions, etc., should be settled
     in something like, should be settled in this rulemaking and
     not during every sample and not for every citation that
     might be issued in one sample.  So it would cut a 27-word
     rule down to maybe less than half that.  But that's what I
     suggest.
               Now, let me go on to what you referred to as the
     compliance threshold value, the so-called 2.33 limit.  You
     argue in the preamble to the proposed plan verification rule
     that in order to determine with a high degree of confidence,
     meaning 95 percent confidence I assume, that measured
     exposure was above the 2.0 milligram standard.  It had to be
     above the upper 95 percent confidence limit.  And you've
     estimated this at .33, meaning that you would not issue a
     citation unless exposure were measured above 2.33 milligrams
     per cubic meter, as I understand that correctly.  Yeah,
     okay.
               I think that this approach is plainly contrary to
     the wording of the Act.  And it's also contrary to standard
     public health practice.  And I think it exposes miners
     unnecessarily to excessive dust.  For example, a miner could
     be exposed to 2.3 milligrams a cubic meter for dust for his
     entire working life and never, and the operator would never
     have any enforcement action taken against him.  It's
     entirely possible under this rule.  It's very unlikely but
     it's possible.  And I think this tolerates an excessive
     level of exposure.  So that's one problem with it.
               But I think the more important problem is that I
     think it's contrary to the claim language of the Act.  The
     Act requires that exposure be "at or below 2.0 milligrams
     per cubic meter."  So rather than ensuring that exposure is
     above the exposure limit before issuing a citation for
     noncompliance the Act requires that operators maintain
     exposure below the limit.  What the Act says is "at or below
     2.0 milligrams."  So that if you went two standard
     deviations below 2 then you would have a 95 percent
     confidence that exposure would be below the exposure limits,
     which is what the Act requires, the plain language of the
     Act.
               Now, I realize this is a significant change, this
     would require significant change in thinking that persisted
     over 30 years but I think that's what's required.  And I
     think that's what the Act requires also. 
               The distribution of sampling analytical errors,
     what this is based upon, can go actually in either
     direction.  If the question is whether the measurement is
     above the limit use the upper tail.  But if it is weather
     the measurement is below the limit as the Act requires use
     the lower tail.  In short, this dog has two tails and MSHA
     has the wrong one.
               Now, there's some other more common sense reasons
     not to use this compliance threshold value, some of which
     I've mentioned.  And an additional one is that both NIOSH
     and the Dust Advisory Committee recommended that the
     exposure limit be reduced.  And last April MSHA itself
     proposed reducing the exposure limit.  Given these
     recommendations if there is uncertainty concerning
     measurements of exposure the benefit of that doubt should go
     to the miners and not to the mine operators because it's
     mine -- and the miners, what miners have at risk here is
     their health.  This is a chronic, irreversible, disabling
     disease.  That's what's at stake for the miners.  What's at
     stake for mine operators is additional expense.  Now, these
     are not comparable levels of risk.  And when those kinds of
     risk are laid out, played one against the other protecting
     miners' health should take precedence over mine operators'
     expense.  In brief, the benefit of doubt should go to
     miners.
               Now, let's see.  Now, there's some things that
     MSHA could do that would improve the performance of the
     sampling unit.  And I must confess I don't -- you must be
     doing this now but and if so, fine.  But I've looked at
     operator samples over -- I've looked at several hundred
     thousand operator samples.  For every single one of them
     when I looked at the data down for how long the sampler ran
     it said 480 minutes.  That's just not true.  One does not
     take 100,000 samples and every one of them come up with 480
     minutes.  And in the data sets that I looked at the sampling
     rate was assumed to be 2 liters per minute.  There was not
     any indication that any other sampling rate was considered.
               And what I suggest is that you take the exact time
     that the sample was run.  If it's 486 minutes, it's 486
     minutes.  If it's 470, it's 470.  But put in the exact
     number.  The same thing for the flow rate.  
               The standard practice, at least the practice that
     I teach my students, is that the standard protocol is you
     measure flow rate, you calibrate it before you sample and
     you get it as close as you can to what you're trying to
     sample for and you calibrate it after you sample.  And the
     active flow rate you take is the midpoint in between.
               Now, this will not amount to a huge difference,
     but it will improve the precision of sampling practices.  I
     did some sort of off-the-cuff calculations and, for example,
     if the actual flow rate was 2.1 milligrams or 2.1 liters per
     minute and the actual sampling was 490 minutes and it was
     mistakenly put in as 2 liters per minute and 480 minutes
     what would have been a 2.15 milligram per cubic meter
     concentration would be reported as 2.0.  Now, when we're
     dealing in, you know, very close levels here, 2.33 and so on
     going out to two significant digits, these kinds of errors
     can be a problem.  And they're easily fixed.  And that is to
     use the actual flow rate, the actual time, it will improve
     precision.
               Now, moving on to some other topics.  And,
     actually, I want to go back briefly to this what to do about
     the samples between 2 and 2.3 milligrams per cubic meter. 
     When I looked at MSHA data, the limited amount of data that
     I had to prepare for these hearings I looked at, well, how
     many, of all the samples that are above 2 milligrams how
     many are between 2 and 2.3?  It turns out to be not a small
     proportion.  The data set that I had says 40 percent or so
     of all the samples between 2 -- of all the samples above 2
     milligrams about 40 percent were between 2 and 2.3.  That's
     a large chunk of territory to rule off the table as far as
     not issuing citations.
               Now, you requested comment on whether based on
     operators' regular samples the three parameters used in the
     risk assessment -- and those parameters were percent of
     mechanized mining units with a pattern of recurrent
     overexposure, second, the percent of production shifts for
     which the DO was overexposed, and the mean excess above the
     applicable standard -- whether these were appropriate
     parameters to measure doing your risk assessment?  No, they
     weren't.
               First of all, they're operator samples and they're
     totally suspect.  They could be accurate, so on and so
     forth.  As far as the Mine Workers are concerned, as far as
     the miners are concerned operator data is not credible.  And
     we don't think you should use it for something like risk
     assessment or practically for any other purposes.  So that's
     one, one problem with using that data.
               A second is that, is that the meaning and
     relevance of these parameters is relatively obscure in any
     event, at least I couldn't figure it out.  I didn't know
     where these parameters came from in the risk assessment. 
     And there have been several people, Noah Seixas, Attfield
     and others, have done a more thorough analysis of exposure
     data.  And if you for conducting risk assessment we urge
     that you refer to the people that have been doing it for
     some time.  And I think have been doing it well.
               Now, let me go on to the issue of quartz dust
     which I don't think anyone has spoken about yet.  In the
     identification of the hazard for coal miners under plan
     verification I didn't see any reference to quartz dust as a
     health hazard in plan verification in the section which says
     this is the toxic material that we're looking at.  There
     might have been one sentence that said, yes, there's silica. 
     But I didn't see anything else in that regard.
               And I think in the single sample proposal there
     was a mention of it and there was a more sustained
     discussion of the health effects of quartz.  It missed a few
     things.  It didn't dwell sufficiently on the issue of the
     lung cancer risk for quartz and it didn't mention at all the
     occurrence of a variety of autoimmune disorders that are
     also associated with quartz.  I mean we are learning more
     and more about the health hazards of quartz these days.  And
     I think it's very important, especially within the mining
     industry which are the people who probably have the biggest
     exposure to quartz dust, and I think we need to keep up to
     date on this stuff.
               Now, there are some features of the quartz policy
     that are constructive developments but on the whole it does
     not provide adequate protection.  And I think it's contrary
     to recommendations of the Advisory Committee and the
     criteria document.  The one thing I mentioned that I think
     is a step in the right direction is dispensing with the
     optional operator sample for determining percent quartz. 
     But both the Advisory Committee and NIOSH in the criteria
     document recommended establishing a policy for quartz that
     is separate and independent of the policy for respirable
     dust.
               It seems here that you continue the practice of
     determining percent quartz and then calculating a reduced
     standard for purposes of enforcement and taking samples and
     comparing to that reduced standard.  This is an obsolete, a
     clumsy and unnecessary procedure.  I think the exposure
     limit as you point out, the effective exposure limit by this
     process is 100 micrograms per cubic meter, and I think it
     should be enforced on that basis at 100 micrograms by taking
     samples, analyzing them for quartz dust, and issuing
     citations or not as appropriate on a 100 microgram exposure
     limit.
               I should mention also that you also know that
     NIOSH and the Advisory Committee also recommended reducing
     the exposure limit from 100 micrograms to a lower level. 
               Now, another problem with the quartz policy is
     that you base the determination of the percent quartz on
     three consecutive samples before you take any enforcement
     action.  And this could expose miners to three documented
     incidences of overexposure to respirable quartz dust and no
     action would be taken by the agency other than calculating a
     percent quartz.  There would be no citation of any sort
     based upon even though you had documented cases in which
     there was overexposure.
               The sampling and analytical methodology exists for
     analyzing quartz dust.  And I don't see any reason to
     calculate a reduced limit.  And I think if you find in
     excess of 100 micrograms there should be a citation issued
     on the spot.  I don't think that it's appropriate to give
     the mine operator sort of a free exposure limit.  Miner
     operators know that there is quartz.  Mine operators know
     that there is quartz in the rock surrounding many coal
     mines.  
               If it's sandstone, if it's granite there is going
     to be quartz going to be there.  Some other types of rock
     have smaller percentages of quartz.  But they know that. 
     And knowing that they know that anybody that drills into the
     roof is going to be exposed to quartz unless the sampling --
     unless the controls are in place.  If there's a sandstone
     middleman in the seam, if the miner cuts into the roof or
     cuts into the floor and it's a quartz-bearing rock they're
     going to be exposed to quartz as well.  
               And on surface mines drillers and others are also
     going to be exposed to quartz.  And that is known simply by
     knowing what rock is there.  The mine operators know the
     rocks.  If they know anything, they ought to know one rock
     from another and where the silica is and where it isn't.
               Therefore, if you find an exposure over the
     exposure limit I think you should take action and bring that
     under control and not tolerate it as this three sample
     calculation of the percent quartz does.
               Okay.  Let me just conclude with a few comments on
     the need for miner participation which I mentioned at the
     beginning.  I think the lack of miner participation or at
     least the rather haphazard way that it's sprinkled through
     the rule is a real problem.  
               And let me mention something else, it's something
     that I think Bruce Watzman referred to, but the way, your
     new way of doing rules is, you know, What do I have to do? 
     Sort of a question and answer format.   And it's always
     presented as if the person reading the rules were the mine
     operator.  Rest assured, mine operators are not the only
     people that read the rules, the rules apply to miners as
     well.  I don't see anyplace in there where it says, What am
     I entitled to?  What are my rights under these rules? which
     would apply to miners?  I mean miners have certain rights
     and other things but I don't see any language in the
     question and answer format that addresses it in that way.
               I think rather than try and do that I think you
     should go back to the old way of doing things.  So I don't,
     this question and answer format I think is more trouble than
     it is worth.  That's really my personal view on that matter.
               Anyway, back to the issue of miner participation. 
     Well, I believe I've actually covered all that which I have
     written here in front of me.
               All right, let me end my comment at that point and
     if you have any questions or whatever I'd be glad to try and
     respond to them.
               MR. SCHELL:  Jim, just more a comment than a
     question.  One of the concerns that we had on proposing a
     separate silica standard was a hope that we would eventually
     go to continuous monitoring.  And as you know right now the
     technology they're working on does allow you to make a
     determination on respirable coal mine dust, may or may not
     allow you to make it on silica, depending on how that
     develops.  So our concern was if you had two separate
     standards and we went to continuous monitoring we'd only be
     enforcing the coal dust standard.  The reduced standard
     would still give us some ability to enforce both of them.
               Now, that may or may not have been the right way
     to go but that was the thought that went through our mind.
               MR. WEEKS:  Yeah.  Well, my concern is that the
     technology is there now to enforce a 100 microgram limit. 
     And I don't see why we can't just adopt that now and enforce
     it.
               One comment I wanted to make about the continuous
     --
               MR. NIEWIADOMSKI:  Jim, can I add to what Ron
     said?
               MR. WEEKS:  Sure.
               MR. NIEWIADOMSKI:  Our approach, okay, our
     approach to addressing that particular issue is certainly
     contained in the plan verification where we are requiring
     the operator to anticipate that he's going to be
     encountering quartz and to design his plan to meet 100
     micrograms and 2 milligrams.  Okay?  So, and it's at high
     production.  So we have, as far as we're concerned, if in
     fact that plan is designed to control that then as far as
     we're concerned we're addressing what the Advisory Committee
     had recommended.
               More importantly, the Advisory Committee did not
     recommend lowering of the quartz standard, it recommended,
     because I'm looking here, lowering of silica exposure of
     miners.  And this is what we're doing.  Recommendation
     number three.
               MR. WEEKS:  I think including the quartz exposure
     in plan verification is appropriate and I think is a good
     feature.  And I think that that's, you know, to the extent
     that the plan verification process is going to help to
     control dust, and my gut reaction is that I think it will
     but, frankly, I rely upon many of our members' opinion of
     that because there has to be worked out at a mine level. 
     But I think it's a strong feature of the plan verification
     process.
               My point was that when it comes to enforcement,
     enforcement depends upon taking three samples in which there
     could be manifest evidence of overexposure and the only
     thing you do with those three samples is calculate the
     percent quartz and go to this obsolete method of calculating
     the reduced standard and making enforcement decisions based
     upon that.  I think it's inefficient, I think it's
     unnecessary and it doesn't provide adequate protection.
               MR. SCHELL:  I did have one other thing to say
     about the continuous monitor.  Yeah, I know, along with
     others here, I know what the state of the technology is on
     that.  And it's promising but it's not there yet.  There is
     nothing to prevent this agency from writing a rule that
     would force the technology.  
               And the one thing that's going to move it along is
     by creating a demand for this technology.  And if you
     require it in some fashion in the rule, taking account of
     all the vagaries involved in it, that would move things
     along, it would provide some additional pressure, feet to
     the fire, fire to the feet so to speak on developing and
     improving technology for continuous mining.  But there's no
     mention of it in the rule at all.  And I think that's a
     mistake.
               MR. WEEKS:  Now, there's another issue that I just
     thought about there.  Sorry to be so haphazard myself in
     this.  But wouldn't it go to the issue of whether
     engineering controls have been exhausted and whether the
     mine operator would be issued a permit that would allow him
     to use air purifying, the powered air-purifying respirators,
     I think the procedure that I would suggest is, that I think
     is better is the procedure that's laid out in the act.  It's
     a very straightforward procedure: if there is overexposure
     miners should get respiratory protection.  And the citation
     would persist, the pressure on the operator would persist to
     use engineering controls and to reduce exposure.
               Under what you propose, permitting respirators in-
     by, permitting this 4 milligram excursion in the same place,
     it takes the pressure off the operator and essentially
     endorses what the operator cannot do right now rather than
     put the pressure on and saying you need to control dust.  
               I mean if I were to draw an analogy with gas,
     admittedly it's an acute problem, dust is chronic, but if
     gas goes to 5 percent the mine closes, everyone comes out,
     saying you do not mine coal at 5 percent gas.  And it's
     unequivocable.  And it should be.
               And I think some of the requirements of mining
     coal in this country is that you reduce exposure to 2
     milligrams.  That's the way it's done in this country. 
     That's the kind of protection we want to give to our miners. 
     And I think we need to create incentives and pressure to get
     it there.  And I think allowing air purifying respirators
     and these excursions to 4 milligrams doesn't do that.  It
     takes the pressure off.  It says, okay, I give up, you don't
     have to try any more engineering controls, you can do it
     this other way.  I think it's the wrong way to go.
               MR. NIEWIADOMSKI:  Jim, what is your views or
     opinion about the proposed plan approval process, is it more
     or less effective than the existing process?
               MR. WEEKS:  I don't feel qualified to speak to
     that.  So I would just be using up time if I did.
               MR. KOGUT:  I just wanted to address the concern
     you expressed about the citation threshold values and
     possibility that your concern was that a miner could be
     exposed on a continuous basis to a level like 2.32 and for a
     whole lifetime.  And I think it's our intention in
     formulating this whole proposal, including the verification
     part, was to eliminate that kind of excursion, that kind of
     situation.  So it's certainly not our intention to allow
     that kind of thing to persist.
               And I think that, this is I think the reason that
     I think that that can't happen under the proposal is that we
     don't, even though we believe that there is a burden of
     proof in sustaining an individual citation which is why we
     go through the citation threshold values into the approach,
     if we take a measurement at 2.32 or even 2.1 the fact that
     we don't feel that we can issue a citation or sustain a
     citation at a high confidence, at a sufficient high level of
     confidence in order that that citation be upheld in court,
     that does not suggest that we consider that MMU to be in
     compliance with the standard.  We would not consider that as
     being in any way evidence that that MMU is in compliance
     with the standard.
               The first thing that such a situation could
     trigger is when you would go back and resample, if a second
     sample at that MMU again is above the standard but below the
     level at which we would have enough confidence to sustain
     the citation, to issue a citation, then that would in most
     cases I think trigger the plan verification process.
               When we go in to reverify that the plan is
     effective that shifts the burden of proof from us in issuing
     a citation over to the operator in demonstrating that the
     plan is effective.  So the burden of proof then is then on
     the operator to demonstrate at a high level of confidence
     that concentrations are going to be maintained below that 2
     milligram standard.
               And so when you look at it in the context of the
     plan verification process I don't think that this kind of a
     situation where someone was exposed for a long period of
     time above the standard but below the citation threshold
     value, that's not the situation that I think could occur.
               MR. WEEKS:  Well, let me respond to that in a
     variety of ways.  First of all, as I mentioned, resampling
     following exposure measured between 2 and 2.3 is not in the
     rule.  And, you know, I think it should be there but there
     is no guarantee that that would happen the way the rule is
     proposed right now.  So my projection was based upon that
     assumption that you wouldn't, there's no resampling because
     it's not there, there's no discussion of it.
               Second, I noticed in the plan, as I mentioned
     earlier, I think the citation threshold value is at the
     wrong end of the distribution under any event because the
     Act says exposure must be kept at or below.  It doesn't say
     it should not go above.  It says at or below.  And so I
     think we should be at the lower confidence interval and not
     be fooling around with the upper one.  Because when we get
     in the upper one it's an issue, essentially as I understand,
     it's an issue of due process.  And I think in this case when
     there is so much compelling evidence that excess exposure is
     going to increase the risk of disease in this case and the
     disease that's it chronic, it's irreversible, it's disabling
     and so on, in that situation I think that notion of due
     process has to take a back seat to the need to protect
     miners' health.
               That I think is another of the problems.  So
     that's why it should be at the lower confidence interval.
               Now, I notice that that is essentially what's done
     in the exposure values for plan verification.  I think
     that's appropriate.  I was, frankly, glad to see that those
     lower values were there for plan verification if I
     understand them correctly.  And I think they should also be
     in this issue over determined compliance at the lower end,
     at the lower confidence interval and not at the upper one.
               I don't believe that I've silenced the lawyers.  I
     don't understand this.  This is --
               MR. REYNOLDS:  We've been down this path before. 
     But I just wanted to mention that that's pretty much 95
     percent confidence level of exceeding an exposure level like
     that is a fairly standard practice in other situations where
     you have a hazard either under the OSHA program and also
     under --
               MR. WEEKS:  Yeah.
               MR. REYNOLDS:  -- the programs administered by
     EPA.  So it's not anything that's unique or unusual to MSHA. 
     And also it would be unique and unusual for us to take that
     position and difficult for us to sustain in an enforcement
     action.  So that's why we're in a position where we believe
     that this is the most effective way to write this.
               MR. REYNOLDS:  I understand it's standard
     operating policy to do that.  I also think it's the wrong
     policy both in general because these two risks, the risk of
     mine operator expense or miners' health, are not comparable. 
     If those were comparable levels of risk, comparable risks in
     any sense we could make reasonable tradeoffs, but they're
     not.
               And, secondly, --
               MR. REYNOLDS:  But in an individual enforcement
     action that's not what we're dealing with.  The Secretary is
     dealing with an issue where she's taking an enforcement
     action against an individual mine operator and that's the
     context of the decision we have to make.  It's not whether
     or not we're furthering, you know, miner health over a
     cumulative period of time.  I mean the issue is whether or
     not we could sustain an individual enforcement action
     against an individual mine operator for a particular sample.
               MR. WEEKS:  There is no other purpose for taking
     that individual action against a mine operator than
     protecting miners' health.  That's the purpose of doing
     that.  And I think --
               MR. REYNOLDS:  It also would be the purpose for us
     to go back and to continue sampling in situations where we
     were on the margin.
               MR. WEEKS:  Well, right.
               MR. REYNOLDS:  The issue though is whether or not
     we can sustain an enforcement action if that's what we
     choose to, you know, if that's what we do in that situation.
               MR. WEEKS:  Yeah.
               MR. REYNOLDS:  But it's not like we're going to
     ignore situations where the exposure level is on the margin
     there, you know, between 1.9 and 2.31.  There would be
     action taken by the agency and the agency would not
     tolerate, you know, a continued exposure at that level.  But
     the issue is can the agency, can the Secretary of Labor
     sustain an enforcement action against an individual mine
     operator on that sample?  And that's why we're doing it that
     way.
               MR. WEEKS:  right.  I understand that the purpose
     of that, of doing it that way is to be able to defend
     enforcement actions in court because someone's going to
     challenge it saying you can't with 95 percent certainty and
     so on and so forth.  I think the reply to that is that's not
     what the Act requires.  The Act requires that we keep
     exposure at or below the limit.
               I really think that this kind of translation of
     statistical reasoning into public policy needs to be
     challenged because it's permitting excess exposure to
     miners, to whoever, is at stake in this.
               There are too many lawyers involved in this. 
     There's two on the front table here.  And, I don't know, are
     there lawyers in the back table too?
               MR. HEWETT:  Jim, I feel like I need to come to
     defense of lawyers.
               MR. WEEKS:  You traitor, you.
               MR. HEWETT:  At some risk of wasting time.  So,
     Marvin, you might want to cut me off.
               MR. NICHOLS:  I was ready to do that.
               (Laughter.)
               MR. HEWETT:  You talked about the '69 Act and the
     what to you is confusing wording.  And I have to agree that,
     yes, some of the words can be and phrases can be
     misinterpreted as they have been.  But I could point out
     that although I wasn't involved, I was in high school at
     that time, as I think most of the people in this room, the
     people that wrote that Act, and I'm sure there was more than
     one lawyer involved, actually put together something that
     was very intelligent -- perhaps for the first time, I don't
     know -- but for a government regulation or an act.  But they
     had this phased in approach.
               And, as you mentioned, the average exposure for
     Bureau of Mine studies for continuous operators, for
     shuttlecar operators, continuous miner operators, shuttlecar
     operators, and so on, was quite high, 6, 7 milligrams on
     average for continuous miner operators.  Something similar
     for the other occupations.  So they knew that overnight it
     was not going to be possible to go from 6 milligrams on
     average or 7 on average to 2 for each single shift.  So they
     adopted this phased-in approach, three year phased in
     approach.
               And because -- And, you know, and I think but for
     the benefit of others in the room, for the first 18 months
     the standard was going to be 3 milligrams as averaged over a
     number of work shifts to be specified by the regulatory
     agency.  They fixed on ten work shifts.  So 18 months it was
     3 milligrams on average.  At the end of 18 months it was
     going to be 3 milligrams for each single shift.  And at the
     end of the second of the 18 months, three years, it was
     going to be 2 milligrams for each single shift.  So 3 on
     average, 3 per single shift, 2 per single shift.  And that
     was expected to gradually bring industry into compliance
     with the goals of a 2 milligram standard.
               And it was a very intelligent approach. 
     Unfortunately, we got locked into the shifts on average
     approach. 
               And just for everybody's information, at that time
     personal dust sampling where we used our personal dust
     sampling pump was brand new.  The MSA Model G pumps were the
     new kid on the block, just recently developed.  There was
     actually some concern about reliability.  It was reflected
     in the Act regarding the reliability of the measurement
     system.  There were even articles published by the U.S.S.
     Steel or U.S. Steel, who owned many, many coal mines at that
     time, still do, arguing that the system, the gravimetric
     method system is inaccurate and we should continue with
     particle counting, God forbid.  That didn't happen.  But
     there was this concern.
               So I can see how that requirement for estimating
     method accuracy crept into the Act.  Now, at that time the
     method that MSHA was using, at that time called MSA and they
     were in the Department of the Interior, probably may have
     met accuracy criterion, but it certainly wasn't tested to
     see if it was meeting it on a single shift.  The analysis
     was erroneous, and we're trying to correct that, as you
     know.  But the system today definitely meets the NIOSH
     accuracy criterion which is the only accuracy criterion used
     in the United States with regulatory agencies and NIOSH. 
               And, you know, we felt it was an erroneous
     decision back then in '72, decided that measurement system
     was inaccurate.  And we're trying to correct this.
               I just wanted to point out for the benefit of
     everybody here that there was some intelligent reasoning
     that went into those, that Act.  And we're trying to get to
     where Congress wanted us to be, the single shift limit
     measured on every shift where the standard applies to each
     shift.
               Now, regarding the 2 milligram standard, I want
     everybody to understand that the United States at that time
     had no good epidemiology or exposure response information or
     health effect information on coal worker's pneumoconiosis. 
     And that standard actually derived from studies in Britain. 
     The Bureau of Mines sent people over to Great Britain to
     talk to them about their coal dust studies which were then
     just only partially completed, and actually asked them to
     write a report based upon their interim results. 
               So our standard is based upon an incomplete
     British study.  So it was incomplete, it was just a best
     estimate of what a good single shift limit should be.  Of
     course, NIOSH has since published a criteria document
     suggestion that it should be even lower.  And because it was
     so tenuous at that time it was improper to interpret it as a
     long-term coverage and Congress quite properly intended it
     to be a single shift limit.  And that's where we're trying
     to move to.
               Sorry I took up so much time.
               MR. NICHOLS:  Okay, thanks.
               Thanks, Jim.  Thanks, Jim.
               Hey, Daryl, come on up.
               MR. WEEKS:  Are you the hook?  Okay, thank you.
               MR. NICHOLS:  Well, if you've got one you've just
     got to make, go ahead.
               MR. WEEKS:  Oh, come on, now you opened the door.
               Well, just one thing.  My purpose in referring to
     that early history was different.  When the Act was passed
     it was to point out that mine operators had complained
     strongly that they, no way that they could meet the 2
     milligram standard.  And yet within six months or a year it
     was down to half, regardless of the phase-in period.  You're
     right about the phasing in, that's a, it was an appropriate
     way to proceed.  
               And based upon that, you know, that's our
     experience, the union's experience in saying when someone
     says "we can't do it" we have a lot of historical evidence
     that says complaints of that sort are just not credible.
               MR. NICHOLS:  Okay, thanks.
               Daryl.
     STATEMENT OF DARYL DEWBERRY, UNITED MINE WORKERS OF AMERICA
               MR. DEWBERRY:  Thank you for giving me the
     opportunity to speak before you today.  My name is Daryl
     Dewberry.  That's D-A-R-Y-L H. Dewberry, D-E-W-B-E-R-R-Y. 
     I'm the International Executive Board Member for District
     20, United Mine Workers of America.
               Let me say I've sit and heard in Prestonsburg the
     testimony from miners, from operators here and there from
     all over this great country.  I don't believe I've heard
     anybody that was in favor of adopting your regulations or
     your rules as you proposed them.  
               I've heard the United Mine Workers as well as
     operators commend you on single sampling.  I've heard the
     operators commend you on the airstream helmets.  But as far
     as the rules in general, I didn't make it to Morgantown, I
     don't know what happened but I'm sure the transcripts will
     bear out any support that you may have had, but I tell you
     it falls far from the mark of I guess making the operators
     and the people who are affected, adversely or pro by your
     rules don't like it.  No matter how you sugar coat it it
     ain't going to fly.  And I think the operators will take
     issue with it.  I know that the United Mine Workers will if
     it is implemented in its present form.
               We ask you to go back to the drawing board, to
     hear the pleas of the recommendations of the Advisory
     Committee that was charged with cleaning this thing up, take
     their recommendations, address each and every one of them,
     there's not but 20 of them as I recall.  Give something --
     and let me say that was a diversified committee that was put
     together, advisory committee, with operators, with union,
     and the interests of all people were addressed in those
     issues.
               I would like to commend you on the single shift
     sampling.  We've been long overdue for that.  However, I
     think we missed the mark on the full shift sampling.  Full
     shift is in my view is exactly what it should be, and that's
     not -- it should be on a normal workday.  A normal workday
     for the majority of the people that I represent are 10
     hours.  They come and get their pumps, take them off of
     them, and they stay in that environment an additional two
     hours.  We have what we call a hotseat swap-out; they swap-
     out on the face.  They're relieved on the face.  Some of
     those people don't even eat lunch in the dinner hole.  So
     they are subjected to that environment for the full 10
     hours, not just 480 minutes.
               And I'd ask you, I referred to the July 7 news
     release and got excited because I thought there was some
     technology, some method that would curtail or banish Black
     Lung or coal-related respiratory diseases.  That's what
     everybody that read the news media, and that's not just in
     my area.  I thought, well, maybe it might be a misquote. 
     But let me say that the stigma that was put out was that
     MSHA had come up with a way as a result of a lawsuit from
     the United Mine Workers to eradicate Black Lung disease.  
               I would like for this panel to tell me how your
     rules as you put them before us today would eliminate Black
     Lung because I got some people that I represent that want to
     hear it.  I can't find a way that this will do anything but
     further detect, and let me say it will give the operators a
     much larger opportunity to not be exposed to sampling even
     though they've had it in control.  
               We've got some good operators out there that have
     attempted to comply with the regs as they are now.  I'm for
     doing away with the averaging because if you're in over 2
     milligrams of respirable dust you're in over 2 milligrams of
     respirable dust.  Longwalls at the Jim Walter mines every
     one of them on any given day would exceed 100,000 cfm on
     occasion, depends on the methane concentrations that you've
     got.  You have a string line curtain down 1,000 foot
     longwall face line to dissipate the methane, which also puts
     you in a tunnel so to speak of the dust coming off the
     shields.
               Now we've, as a result of the 060 sampling as I
     referred to, we've come up with some technology that's in a
     collaborator effort of the union and management and put --
     we had people wash these shields down and put sprays on
     these shields which tremendously reduced the dust.  And
     that's when Jim Walters decided that they could possibly
     live with 060 sampling.
               But under your present rules of raising the
     threshold from 2 milligrams to 2.33 on any given day, and I
     agree with Dr. Weeks that if I'm in 2.3 -- and I've looked
     through your rules and gone through them from can to cank
     and I read, I've represented United Mine Workers in
     litigation as far as intervention in the MSHA case before
     ALJs, handled over 400 arbitration cases, the language is so
     ambiguous if I took that to enforce it before an arbitrator,
     and will say not the rule itself but in your policies you
     and I both know that you and an operator is not going to in
     any way shape, form or fashion allow you to enforce or cite
     a policy.  I was chairman of the safety committee.  I've
     traveled with federal inspectors who said, Daryl, I can't
     write it.  That's our policy.  But there's no law to support
     me on it.
               Fellows, we don't need wish lists.  We need
     something hard and tangible that you can put your hands on
     that you can enforce.  And I know that your inspectors want
     that too.  You're not doing anything but giving them a bona
     fide gun with blanks in it and say, Boys, go out there and
     enforce the law.  And these operators say, That is not a
     rule, that's your policy, and we don't agree with your
     policy.  And you and I both know that it's not enforceable.
               As far as the Part 90 miners are concerned they've
     already been exposed, they've already contracted the
     disease.  1.26 is not that much but it's a lot to him.  The
     residual effect of that respirable dust in his lungs, in
     something that is already damaged for the rest of his life,
     taken years -- and I guess we've become complacent.  When
     you go to a union meeting and see the pensioners there and
     two-thirds of them walk around with an oxygen bottle behind
     them, gentlemen and ladies of this panel, I wish that you
     could see it.  We have gotten to an acceptance level: that's
     what you get when you work in a coal mine.  
               That was not the intent of Congress in 1977,
     nearly a quarter of a century ago.  And here we are, and I
     cannot understand, I've read that Act.  I said, the heck
     with the rules, let me go see what Congress promised me. 
     It's no different than the Civil Rights Act, it's
     enforceable.  And I've got legislators that are good
     friends.  I deal with a lot of lobbying for United Mine
     Workers and I intend to approach some congressmen about it
     and such as that.  But the intent is clear and ambiguous --
     unambiguous, I'm sorry, especially on 202 on the airstream
     helmets.  It says that you will not.  It doesn't say unless
     you do this or do that.
               And I refer you, and I did in Prestonsburg, refer
     you to page 36, 202(h), I'm sorry.  It says that
     "respiratory equipment approved by the Secretary and the
     Secretary of Health, Education and Welfare shall make
     available to all persons whenever exposed to concentrations
     of respirable dust in excess of the levels to be maintained
     under this Act.  Use of respirators shall not," it's not
     ambiguous, it says "shall not be substituted for
     environmental control measures in the active workings."
               I don't know how you can write any rule that would
     be in conflict with what's promised in a piece of
     legislation unless that piece of legislation is either
     ambiguous or it's been amended.  And to my knowledge that
     piece has not been amended.
               I didn't, I guess, wait for the answer of how, and
     maybe it was just misprints in the news media, but in this
     panel's opinion do you think that your proposals will
     eradicate or do away with Black Lung disease as we know it?
               MR. NICHOLS:  We think if you've got, if you've
     got good verified plans at a high production level and
     there's compliance with those on a daily basis it will go a
     long way to do it. 
               MR. DEWBERRY:  But it won't eradicate it as has
     been I guess stigmafied or throughout the news media?  Are
     we in agreement there?  I mean it's been portrayed to
     eradicate, do completely away with Black Lung disease as we
     know it.  And I've got several news articles that have been
     quoted by Davitt McAteer and others that that's what it
     would do.
               MR. SCHELL:  Daryl, I think what we're saying and
     what our concern is, the average mine operates 400 shifts. 
     Your mines probably operate more.
               MR. DEWBERRY:  Correct.
               MR. SCHELL:  Sampling 36 shifts, if 30 of those
     are operator sampling, we're not sure that gets us there. 
     Our concern, and maybe we need to rethink it, but our theory
     was we've got to find a way to make sure that on 400 shifts
     or whatever number of shifts people work that there's
     compliance, not just on their sampling.  And that was the
     thrust that we took in this rulemaking is to start out and
     saying, okay, no more games on the plans.
               I've had a lot of discussions with your membership
     about we go out and sample and the dust control parameters
     are way above what's in the plan, production is way below. 
     And you ask how can we say that that plan protects us?  So
     we tried to address that, saying we're not going to accept a
     plan unless only the parameters that are listed in that plan
     are in place.  And we're not going to accept it at a low
     level of production, we're going to make that plan be
     verified at a high level of production.  And we're going to
     verify it.
               And then if we enforce this requirement that those
     plan provisions are in place every day we thought that that
     was a major step toward protecting miners on every shift.
               MR. DEWBERRY:  Well, and I can appreciate that. 
     Let me say that's another issue that I do address.  I
     appreciate the fact of MSHA taking over the complete
     sampling.  And as I stated in Prestonsburg, I have several
     good, close friends that are in MSHA.  I have a great deal
     of respect for them.  I've got on a lot of people that says,
     Hey, they ain't worth a dime, or something like that.  
               I said, Let me tell you something, it's just like
     the old car out there, if that's the only vehicle you've got
     you don't go out there and shoot it and start working --
     walking.  That's all we've got to work with.  
               And on any given day I'd rather work in a mine in
     this great country than any other country as far as coal
     mines are concerned.  And I appreciate the laws promulgated
     by Congress, the '77 Act and the '69 Act.  However, I think
     you know that the technology -- and if it wasn't there,
     we've come a long way, gentlemen and ladies of the panel. 
     Never thought that we'd be able to mine in the depths that
     we mine in Jim Walter mines as far as methane deliberations. 
     It's an everyday acceptance level as far as degassing, such
     as that.  And you can't tell me, I've seen the computered
     longwalls with the electroflex shields that advance
     themselves.  We've come from running a longwall with 25 to
     30 people down to some 11, 10 to 11 to 12 people now, mostly
     mechanics, probably three mechanics on a shift of something
     like that.  And it's just unbelievable the technology that
     we've come up with.
               The longwalls are computer operated.  They can
     detect CO.  And as you all know, we've had several fires as
     far as hotspots at Jim Walter 5 mine.  Every Thanksgiving I
     look for a call from Jim Walter 5 to have to go sit down
     down there.  And they were able to monitor.  And if they can
     monitor the amperage on a fan that's probably three miles
     away, the heat of that fan, the CO that's coming out of that
     fan, the methane deliberation that's coming out of that fan
     all on a computer, my granny, they can come up with the
     technology that does what Congress intended.
               And as I stated earlier, we've had over 11,000
     identifiable deaths as far as this disease is concerned.  I
     found out today a good friend of ours, Dwight Cagle who is
     Safety Committeeman at the location I come from, a fellow
     just died of congestive heart failure but he had Black Lung
     also.  Guaranteed that Black Lung didn't help him.
               And as far as the -- you know, one of the
     questions that's come up is Should MSHA require a higher
     level of confidence?  I've had confidence in MSHA for quite
     a while as far as abating a citation on dust.  Let me say
     that the confidence level obviously has been there. A nd I
     would disagree with the burden of proof.
               Let me say that if we have something that's
     tangible that demonstrates a violation, at that point it
     establishes a prima facie case.  If you've established a
     prima facie case that is accepted by the industry and courts
     overall as a rule, the burden of proof would shift to the
     operator to prove that your sample was in error.  If that
     level at 2 milligrams was met, unless they could prove that
     there were mitigating circumstances to alter the sample
     itself, then I think that it would be more than enforceable. 
     That burden shifts when you meet that prima facie case with
     the prima facie evidence, as you know.
               2.33, as far as giving you a level of confidence,
     I bet the operators would say you'd be real confident with 3
     percent.  Where does it stop?  And the Act, again going to
     the literal language of the '77 Act and the guarantees in
     there, it doesn't state in there that unless you're not
     confident with being able to produce evidence that 2
     milligrams is not there, then you can raise it to 2.33. 
     It's unambiguous.  It's clear in the Act that you're going
     to hold that standard, that environment to 2 milligrams in
     the working places.  
               And one, and I agree with Dr. Weeks 100 percent, I
     think that if you lowered the standard to 1.8 in working
     places and .8 on the Part 90 miner then if you issued a
     citation then you would be in complement with the Act.  The
     criteria would be enforceable in line with the Act.  And
     we'd be better served for it.
               One of the things I guess that --
               MR. NICHOLS:  Daryl.
               MR. DEWBERRY:  Yes, sir?
               MR. NICHOLS:  What we're talking about here is
     whether we issue or not issue a citation --
               MR. DEWBERRY:  Yes, sir.
               MR. NICHOLS:  -- between 2.0 and 2.33.  The issue
     is not whether a miner is going to continue to be exposed to
     that because we're going to follow up.  If we get a
     concentration between 2 and 2.33 we're not going to walk off
     and leave that and call it compliance, we're going to follow
     up on it.  
               The issue I think is whether a citation -- whether
     we can legally issue a citation in that range.  But for the
     health of the miner we're going to follow up on that.
               MR. DEWBERRY:  Yes, sir, I understand that.  I
     understand that's your threshold for purposes of litigation
     enforcement to give you a higher level of confidence that
     we'll take this one on because it's at 2.33 even though the
     standard says we're at 2 milligrams, my gosh, we can enforce
     this.  And the Act does not say that you will cite at 2
     milligrams.  I mean it says that that's what you'll hold it
     to.  And I know that that's your intent.
               However, in going back and trying to recall
     exactly where it would be in there, I think that would be
     more or less your policy to do that.  I think if I were an
     operator and wanted to challenge you and you showed a
     disparity, a disparate treatment between me and my company
     and another, that I would take issue with it.  And if you
     had already varied or deviated so far from -- not so far but
     far from what the Act had required, I think that it would
     probably give me a pretty good argument.
               MR. REYNOLDS:  I just wanted to try one more time. 
     What the Act -- I mean we can cite when the operator gets
     above 2.0.  And if we have a sample that comes in at 2.31
     what that means, and John might want to correct me, is that
     we have there's less than a 50 percent chance that that
     operator is above 2.0 with 95 percent confidence, because
     we're dealing with, you know, measurements which might --
     there, you know, are factors that we had to take into play. 
               If we go to 2.32 or above that then there's a
     greater than 50 percent chance with 95 percent accuracy that
     that -- or 95 percent confidence that the operator has in
     fact exceeded 2.0.  So we're still enforcing 2.0 as the
     Secretary is required to do in the Mine Act.  But it's a
     matter of, you know, what our burden is and showing that
     there is a greater than 50 percent chance or preponderance
     of evidence that we've exceeded 2.0 or that the operator has
     in fact exceeded 2.0.
               And, again, as Marv said once before, this does
     not mean that MSHA would not continue taking enforcement
     action and continuing to sample.  There in the actual reg
     text it says that we may yank the approval of their
     ventilation plan if there's a problem there.  And we may
     reinitiate verification sampling and put them through this
     whole process and make them take a look at the ventilation
     plan and their controls.  
               So it's not that we're not going to do anything in
     the levels between 2.1 and 2.32.
               MR. DEWBERRY:  I understand.  I understand exactly
     what you're saying.  It gives you a higher level of evidence
     and support in your argument for litigation purposes.
               MR. REYNOLDS:  And also I'm saying that that
     question is not something that MSHA can do as an
     administrative agency.  I mean this is something we're
     dealing with in the administrative process in the courts.
               MR. DEWBERRY:  I understand.
               MR. REYNOLDS:  Okay.  But I mean we can't control
     that through the rulemaking here.
               MR. DEWBERRY:  However, I think it would have
     probably I guess set well, and I guess maybe my ignorance as
     far as what has happened in the past, I knew that we
     averaged but haven't we held the confidence level somewhere
     around 2 milligrams on an average of five samples?  Or have
     we used the 2.33 standard?
               MR. REYNOLDS:  Well, actually we've been way above
     that.  If you recall what we went over at the beginning of
     the hearing --
               MR. DEWBERRY:  Yeah, I know that some of them --
               MR. REYNOLDS:  -- there could be situations where
     you had somebody at 3.8 and 2.4 and you would still come
     into compliance.
               MR. DEWBERRY:  That's right.
               MR. REYNOLDS:  That would still show compliance.
               MR. DEWBERRY:  If over the average of those five
     shifts it would be 1.8 or 1.9 I believe it was.
               MR. REYNOLDS:  So you've got somebody sitting
     there with a 3.8 and a 2.4 and that operator is in
     compliance.
               MR. DEWBERRY:  Okay.  But let me I guess rephrase
     the question.  It was obvious that your confidence level at
     that point was at 2 milligrams, or did you use the 2.33
     standard by averaging?  I mean if the average of all five
     samples come up with a 2 milligrams did you issue a citation
     there?
               MR. REYNOLDS:  I didn't think we could get any
     more loosey-goosey with the numbers than that.  I mean we
     were like out into the stratosphere of confidence if we've
     got somebody -- if you're willing to say in an average that
     that person is maintaining the respirable dust level on each
     shift or each coal miner at below 2.
               MR. DEWBERRY:  Yeah.
               MR. SCHELL:  Jon can explain it, but there is when
     you're average multiple samples you come down lower.
               Jon, why don't you explain why?
               MR. KOGUT:  I think that this is not an easy thing
     to explain.  And there is sa fuller explanation of it in --
               MR. DEWBERRY:  Well, I probably wouldn't
     understand it if you did.
               MR. KOGUT:  Well, there's a fuller explanation of
     it in the preamble to the single sample notice that we put
     out in 1998, not the joint one that we issued with NIOSH but
     the one that MSHA put out by itself implementing the
     enforcement policy based on single samples.  Now, that's the
     one that was overturned by a court decision, which is one of
     the reasons why we're going through this process.
               But basically our position is that by averaging
     those samples that actually decreased the accuracy of our
     samples in the same way that Dr. Weeks was talking about
     because of biases that are introduced by averaging samples.
               MR. DEWBERRY:  Yeah.
               MR. KOGUT:  The principle of issuing a citation
     when the average of those five samples was at least 2.1, and
     that's when they did it because we were just using one digit
     to the right of the decimal place.  So when the average was
     2.1 or above then our citation was issued.  that was kind of
     established as a longstanding practice, and it wasn't based
     on any formal determination of what the confidence level is.
               One way of interpreting it though is that since we
     were requiring 2.1 or above that we do have some level of
     confidence that the standard was actually exceeded in at
     least one of those locations or shifts where a sample was
     collected, at least one of them.  So there is an
     interpretation you can place on that 2.1 that says, yes, we
     had a sufficiently high level of confidence.  And the
     average comes out to be that 2.1 that we have a high level
     of confidence that at least one of those five exceeded the
     standard.
               As I say, this is not a simple thing to explain.
               MR. DEWBERRY:  Yeah.
               MR. KOGUT:  And it's discussed in a lot more
     detail in that 1998 preamble.
               MR. REYNOLDS:  I just wanted to say the 1998
     preamble is still, we can still look at that 1998 preamble
     because the reason we're going through this process now on
     single sample is not because there was any substantive
     problem with any of that, the information that we published
     in 1998, it's just that the court said we had to go through
     another procedure, which is what we're doing now, to do this
     as a mandatory standard under the Act rather than as a
     notice.  So that all the information that was published in
     1998 about the enforcement policy would still be relevant to
     these issues.
               MR. DEWBERRY:  I guess that leads me to a
     question.  And maybe it's for the counsel.  Was that one, I
     mean 2.1 level of confidence ever challenged in court as far
     as an operator?
               MR. NIEWIADOMSKI:  Yes.  Yes, it was challenged. 
     Can you talk about the case, Tom?
               MR. KOGUT:  Let me just address the first part of
     your question while Tom is figuring that out.  Remember that
     the, you know, that 2.1 confidence level that you get when
     you're talking about 2.1 that comes from an average of five
     samples.  So, you know, that's different from when you're
     talking about a single sample.  And if there were no bias --
     and our position, as I said before, and I agree with Dr.
     Weeks on this point, is that by averaging samples you
     actually decrease the accuracy of the whole process.
               MR. DEWBERRY:  I agree.
               MR. KOGUT:  Because you're introducing potential
     biases.  But if there were no biases then by averaging
     samples, say we were able to take simultaneous samples
     somehow, taking it exactly the same location and you average
     them together, or you were able to do that somehow, then you
     could get away with a smaller margin of error than if you
     were dealing with one sample.
               Now, I'm speaking hypothetically because we don't
     -- there's really no practical way of doing that.  But if
     you were somehow able to do that and take those simultaneous
     samples all taken in exactly the same location then you be
     able to get away with a smaller margin of error.  But you
     can't do that.
               Another thing is that in order to get a high level
     of confidence there's more than -- there are other ways you
     can get a high level of confidence besides just getting that
     2.33.  For example, I said before that if on one of our
     repeat samples, say we go in there and we get a sample of
     2.1, okay, and that triggers somebody coming back and taking
     another sample.  And say that second sample comes in at 2.2,
     now that might trigger the verification process so we'd go
     in and reverify the whole plan.
               Now, let's say that the verification plan for some
     reason was, the operator was able to actually comply with
     that verification plan and when we did that verification
     sampling the plan did in fact get reverified.  And then we'd
     go through -- go to compliance sampling again and the same
     thing happens all over again, you get a sample of 2.1 on the
     compliance sample.
               Now you've got three compliance samples that were
     all greater than 2 but less than the citation threshold
     value for an individual sample.  But keep in mind that that
     citation threshold value, that 2.33, that applies to an
     individual sample, not three samples and certainly not four
     samples.  If you've got four samples that are all at 2.05,
     less than 2.1, if you've got four samples that are greater
     than 2.0 that in itself gives us as high level of confidence
     that something is, you know, that they're out of compliance.
               So, you know, even if triggering the
     reverification process didn't work for some reason -- I
     don't see any reason why it wouldn't work -- I think this
     kind of situation would be caught in the reverification
     process.  But for the sake of argument even if it didn't
     work then we would be able to get a high level of confidence
     that the mine was not complying just based on repeated
     samples that are above the 2.0 limit but below the citation
     threshold value.  
               Just as, you know, in the opposite of that or the
     other side of that is that during the verification process
     we're doing the same sort of thing.  If all of the samples
     for the different occupations come in below the critical
     value for one shift which is down around 1.7 something then
     that could reverify the plan on one shift.  But if some of
     those samples come in, say, at 1.8 or 1.9 then the plan will
     not get verified on one shift and we go to another shift of
     sampling.  And if we get repeated shifts where they're all,
     all the measurements are below the 2.0 limit then it's
     possible to verify the plan based on those multiple samples
     even though they're above the 1.72 critical value as long as
     all of them are below the 2.0 milligram standard.
               So in other words there's more than one way to
     verify a plan.  And by the same token there can be more than
     one way to achieve a high level of confidence that the mine
     is not continuously or the MMU is not continuously in
     compliance.
               MR. DEWBERRY:  I guess in response to your answer
     I guess it raises another question on the reverification
     process of each location.  And I'm referring to the
     longwalls in general with the Jim Walter operations which
     the seam and height vary at any given time.  Sometimes
     you're able to get under what we call the middle man. 
     Sometimes you have to take the top which makes a difference,
     a deviation between sometimes 5 foot of height.  I've seen
     it get down as low as 46 inches with those longwalls and you
     have to start taking top then, which produces more quartz. 
     You're cutting a lot of rock then.
               And if you only sample six times per year is there
     going to be any criteria or is there anything that gives you
     enforcement power or the authority if the height and seam
     and great deviations change that you can come in and sample
     more often than the six times?  Or would that be at the
     discretion of the CMI at that location?
               MR. SCHELL:  That's a good question, Daryl.  And
     what we've tried to say is sampling six times a year,
     bimonthly sampling as a minimum.  There are other things
     that should trigger additional sampling.  So there is
     nothing to prevent us from coming in.
               One of the things that we put out is guidance to
     our districts is in fact when you start cutting rock that's
     an area where we should be in sampling.  So to be specific
     to your question, the six times we said was minimum.  If
     there's a reason to go back more often, we need to do that.
               MR. DEWBERRY:  I understand that.  And I guess it
     leads me to another question.  And I've heard today and
     learned today as a result that we have been able to put on
     90 additional miners -- I mean CMIs to inspect the mines and
     to enforce I guess these new promulgated rules.  Is that
     based on the six shifts per operation or would it need
     additional funding to go back as needed because, you know,
     the -- and I guess what you'd have to do is get a plan at
     each location, one for taking the middle man, one for
     letting it fall in.  
               You know, you've got so many mitigating
     circumstances at some of these operations.  In the Show
     Creek operation, for instance, that height is unbelievable. 
     And the pitching seams, I don't know how they do it.  I've
     never cut in that type of coal before, but it's up and down. 
     It's unbelievable.  It's something like you've never seen. 
     And I would encourage all of you to go down there and look
     at it.
               But I can foresee so many problems and variances
     when you approve a plan like that.  And I'll get on into
     some other issues in a minute.  But once it's approved and
     you're only going to sample six times, from that day
     forward, you know, the conditions, the mining conditions
     change daily there.  And I think that that should be -- and
     I don't recall in reading the promulgated rules where you
     have the -- I think most of what I've read is policy and not
     enforceable as far as the rulemaking.  And that's one thing
     that I would encourage the panel to do, if you're going to
     write something, be able to put some bullets in it to
     enforce it.
               I mean these operators and some -- you know, not
     just the operators but some things if you can't enforce it
     why put it in there? 
               That I guess raises --
               MR. NICHOLS:  Daryl.
               MR. DEWBERRY:  Yes?
               MR. NICHOLS:  How much more time to you think
     you're going to need?
               MR. DEWBERRY:  I'm about to wrap up right now, Mr.
     Chairman.
               MR. NICHOLS:  Okay.  We need to decide on whether
     we're going to work late or go tomorrow, so.
               MR. DEWBERRY:  Well, I would have been through a
     long time ago but I --
               MR. NICHOLS:  You can have all the time you want. 
     I just need to --
               MR. DEWBERRY:  I understand.
               MR. NICHOLS:  -- figure it out here.
               MR. DEWBERRY:  I guess in getting back to it, and
     I've deviated somewhat from my notes, I'll just read it
     right quick and we'll get on.
               I say comply with the '77 Act.  I've already
     referred to that.  You're charged with promulgating the
     rules that comply and complement the '77 Act, not rewrite
     it, not legislate it.  The Act is clear and unambiguous. 
     What you're charged with and what I've heard today is that
     we financially cannot afford to enforce the Act as it is
     right now.
               MR. NICHOLS:  Wait a minute.  No, that's --
               MR. DEWBERRY:  Maybe I misunderstood.
               MR. NICHOLS:  No, that's not.
               MR. DEWBERRY:  You've got money allocated for?
               MR. NICHOLS:  We've got money allocated, these 90
     additional positions were to allow MSHA to do bimonthly
     sampling.
               MR. DEWBERRY:  Okay.
               MR. NICHOLS:  And some additional amount of
     sampling.  I mean we have some additional resources with
     mines closing and things like that.
               What I said was that if MSHA took over the
     operating sampling program sample for sample, that just a
     rough figure would mean that we would need an additional 200
     people, and probably about $20 million.
               MR. DEWBERRY:  Yes, sir.  That's what I understood
     you to say.  And, in conclusion, you know, I recommend that
     we, whatever it takes.  I don't think the Act, and I've read
     from front to back, says this Act is restricted to a minimum
     amount of legislated or approved financial.  You're charged
     with doing that.  Whatever, you know, we need to do to see
     that it's done, I think that we'll certainly help you. 
     We've come to the aid of MSHA on numerous occasions to make
     sure that you have the resources to fill the intent --
     fulfill the intent of the Act.  But these promulgated rules
     don't do it.
               And what I -- maybe I misunderstood, but if we
     took the recommendations of the Advisory Committee then in
     all 20 recommendations that it would cost an additional $20
     million and take 200 people to enforce it.  Or correct me if
     I'm wrong there.
               MR. NICHOLS:  I don't know about all the
     recommendations but I was speaking specifically to taking
     over operator sampling sample for sample.
               MR. DEWBERRY:  Okay.  Again, we need full shift
     sampling not 480 minutes.
               We applaud the single shift sampling, not
     averaging.
               We need continuous monitoring in line with what
     NIOSH, even if we have to appropriate money to get there.  I
     think that it would curtail Black Lung disease as we know it
     today.  We know what the environment is.
               So many times I've gone to a Black Lung hearing
     with somebody that I know wasn't sampled, maybe hadn't ever
     been sampled, worked outby drilling the roof or something
     like that and to hang cables or pipe on, and come back and
     they've got Black Lung.  That's what happened to Scott
     Chappell.  He wasn't working in the face.  I don't think he
     ever had a sample, dust sample in his 15 years of
     employment.  And that's unbelievable.
               But when he went to the Black Lung hearing, my
     gosh, they said you didn't get it here.  Must be from
     smoking.  The boy never smoked.  33 years old.  And he
     finally ultimately got it.  But I've been to so many where
     if there is not paper to show this fellow wasn't working in
     that type of environment, and the Congress and MSHA
     guarantees that you're not going to get -- and I've heard
     this argument from operators so many times, that he wasn't
     exposed.  Look, there's not a citation on it.  Well, these
     people they usually cut them open, usually, to find out when
     they've got it after they've deceased.
               Again, policy is not enforceable.  ALJ won't hear
     you.  You know that. 
               As far as the airstream helmets, again you all saw
     how heavy they are, how hard they are to wear.  When they
     first came out in the early '80s our people liked them at
     Jim Walters till they got down, and you think it's heavy
     with your neck straight and standing up, that's fine.  But
     when you have to get down on the longwall shield and walk
     like that for 10 hours on a 1,000 foot face, I'm telling you
     it causes back injuries, neck problems and everything else. 
     The thing is too cumbersome.  And God help these boys that
     chew tobacco and spit.  I mean it is a terrible sight.  All
     the time I know that we've had people go in had to shave
     their beards to go in under apparatus.  And maybe that would
     be the answer.  But those people don't wear them now, they'd
     rather work in the dust because it's too cumbersome to get
     down.  You've got to take it off to look under a longwall or
     whatever.
               Gentlemen, I would, and ladies, I would ask you
     all to take the Advisory Committee recommendations, go back
     to the table.  And if you need the assistance of the United
     Mine Workers to get more money appropriated I think we just
     made an endorsement here lately but we'll certainly go to
     that well.  But I think you're charged with complying with
     this Act that we've been promised.  And that's what we
     expect you to do.
               MR. REYNOLDS:  Daryl, I just, I thought I
     understood you to say at the beginning that Dwight Cagle had
     passed away since last Thursday?
               MR. DEWBERRY:  No, sir.  A friend of mine and
     Dwight Cagle's.  He let me know that the fellow, when we
     were in Prestonsburg, Kentucky, died of congestive heart
     failure.
               MR. REYNOLDS:  Okay.  I thought I understood you
     to --
               MR. DEWBERRY:  And, no, he testified today. 
               MR. REYNOLDS:  Dwight was here.  He was in
     Prestonsburg last Thursday.
               MR. DEWBERRY:  Yeah.  He was a friend of ours. 
     And he just passed away.  However, he had Black Lung and as
     many others do there.
               And let me say one other thing, too.  I wish that
     the panel would address these hard rock miners.  I have a
     sympathy for them.  I worked in a hard rock mine sinking the
     shafts at Jim Walter Resources Number 5 and Number 7 with a
     jumbo drill.  Can't hear real good today from working in
     that environment, even with earmuffs on.  It's like being
     around a full-time machine gun.  But the dust is
     unbelievable too.  And not one time in three-and-a-half
     years that I worked for that underground development sinking
     those shafts was I ever sampled. 
               And I was a continuous miner operator.  And I was
     trying to recall, I haven't been sampled but twice, and I
     was a continuous miner operator for about seven years at Jim
     Walter Number 7 Mine and don't recall but being sampled
     probably one time.
               So, thank you.
               MR. NICHOLS:  Thank you, Daryl.
               Okay, we need to decide what we want to do here. 
     We have 12 more presenters.  The next 10 are UMWA
     presenters.  And we have two other folks that are not.  
               It's 4:40.  The choices would be go to 5:00
     o'clock, take a break, come back and go longer.  We have the
     room for as long as we want it.  Or we could break at 5:00
     and resume in the morning at 8:30.
               Is there anyone that would have a problem coming
     back at 8:30 in the morning?  Is Scott Boylen here?  Would
     you have a problem in the morning?
               MR. BOYLEN:  That's fine.
               MR. NICHOLS:  Okay.  John told me how to pronounce
     his last name but I'll probably pronounce it wrong.  Yes,
     are you okay for the morning?
               MR. DE BUYS:  I'm okay.
               MR. NICHOLS:  Okay, let's go to 5:00 o'clock and
     we'll break then and resume at 8:30 in the morning.
               Go for another hour?  Okay, let's, yeah, how about
     let's take a --
               MR. WILSON:  I'm afraid if we don't continue some
     tonight because of the length of some of the testimony we're
     going to be getting into some flight problems.
               MR. NICHOLS:  We'll go as long as you want to.
               Let's take a 10 minute break right now, come back,
     and we'll go at least till 6:00.  And then we'll decide if
     we want to go longer then.
               (Brief recess.)
               MR. NICHOLS:  Okay, let's get started back.  Is
     Dan Spinnie in here?
               MR. SPINNIE:  Yes.
               MR. NICHOLS:  Come on up, Dan.
     STATEMENT OF DAN SPINNIE, UNITED MINE WORKERS OF AMERICA,
     LOCAL 2161
               MR. SPINNIE:  My name is Dan Spinnie.  I'm from
     Local 2161, Coulterville, Illinois, where I've been a safety
     committeeman for my local since 1980.
               Last week I was at the hearing at Prestonsburg,
     Kentucky, and we heard from miners from the east, southeast,
     midwest.  We heard complaints on the rules as follows:
               Many MSHA proposals are contrary to both the Coal
     Mine Respirable Dust Task Group of 1991, the Advisory
     Committee on the elimination of Black Lung. 
               We heard complaints on the number of samples
     taken.
               We heard complaints about nothing in the law only
     in the preamble about miners' representation and
     participation and none in the proposed rules.
               We heard of single full shift sampling. 
               The Task Group of 1991 believes that the existing
     operator sampling program can provide adequate assurance
     that miners will not be exposed to unhealthful respirable
     coal mine dust until continuous monitoring is feasible if
     appropriate improvements are made in the program.  The Task
     Group of 1991 recommended and spelled out that current
     regulations limit the duration of sampling for the entire
     shift or 8 hours, whichever is less.  As a result, miners
     who work on non-traditional shifts of more than 8 hours are
     not being adequately monitored under the existing
     regulations.
               The Advisory Committee of 1996 also concurs with
     this.
               We heard from miners who said there was no
     provisions for continuous dust monitoring for dust.
               We heard from miners that there was a very complex
     rule that was hard to understand.
               We hard proposals to use administration controls
     versus engineering controls.
               We heard about the number of samples going to be
     taken outby and for Part 90 miners reduced.
               We heard about the way production was counted on
     shifts.
               The Task Group of 1991 reflects that of the
     following:  MSHA should redefine normal production shifts to
     reflect actual production during normal work cycles.  The
     agency should also develop a means to verify actual
     production levels of individual mining units.  Again, the
     Advisory Committee of 1996 concurred.
               All these complaints and objections to these
     proposed rules and some were for good reasons.  Number one,
     the preamble on page 42124 states certain aspects of the
     current respirable dust program limit MSHA's ability to
     assure the adequacy of the dust control parameters under
     typical mining conditions according to two expert panels
     which reviewed the federal program designed to prevent Black
     Lung among coal miners.  Both the coal Mine respirable Dust
     Task Group established in '91 by the Assistant Secretary of
     Labor for Mine Safety and Health, and the Advisory Committee
     in 1995.  The Task Group found that MSHA's current program
     did not promote the development and implementation of
     quality plans.  The Task Group determined that the use of
     minimum production levels for evaluating the effectiveness
     of dust control parameters can result in marginal or
     inadequate plans. 
               The Task Group concluded that current regulations
     limiting the duration of sampling to 8 hours do not provide
     for adequate assessments of respirable dust exposure during
     non-traditional shifts of more than 8 hours.
               And you know at most mines now there is not such
     thing as 8 hour shifts.  Most change at the face or so-
     called hotseating.  And also the rule needs to have
     provision for operations that run through the weekend
     because you all know as well as I do, and everyone in this
     room for that fact, that Saturdays and Sundays is open
     season for some operations. 
               After reviewing these rules and the preamble I
     find a lot of them too discretionary with too many "ifs" and
     "mays."  For example, example number one, page 42149,
     paragraph 2 of the preamble.  "If you are cited under 75.371
     for failure to comply with your approved plan, the District
     Manager may," "may conduct an investigation."  Again, too
     discretionary.  It needs to be put in the rule.
               Example number two, page 42149, paragraph 3. 
     "Finally, the District Manager may," and there's that word
     "may," "revoke your interim plan and withdraw permission to
     use the administrative controls for compliance purposes if
     you have a record of noncompliance with your interim
     ventilation plan, or if MSHA samples indicate that miners
     are not adequately protected."
               Which leads me to a question.  The word "record,"
     where do they get this record from?  Because we have no
     record established.
               MR. REYNOLDS:  I think what you're asking is what
     does MSHA do if we don't have a record of their production
     levels?
               MR. SPINNIE:  Yes.
               MR. REYNOLDS:  We don't have production records?
               MR. SPINNIE:  Yes.
               MR. REYNOLDS:  In the text of the reg it says --
     let me find it -- what we do if they don't have 30, records
     of 30 production shifts, we go and we use the lowest level.
               MR. NIEWIADOMSKI:  There's a regulation at 70.208,
     "What if 30 shifts of production data are not available to
     establish the verification production level?"  That's in the
     laws. 
               And it says if we don't have 30 shifts the VPL
     will be the minimum production level achieved on a shift
     that was sampled to verify the plan's effectiveness.  So
     it's in there.  And you're going to be held to it.  Now, if
     production happens to increase, okay, then we will reverify
     that plan.
               MR. SPINNIE:  I think, I think we ain't on the
     same avenue on this.
               MR. NIEWIADOMSKI:  Are you referring to the record
     of noncompliance?
               MR. SPINNIE:  I'm referring to page 42149,
     paragraph 3 of the preamble where it says, "Finally, the
     District Manager may revoke your interim plan and withdraw
     permission to use administrative controls for compliance
     purposes if you have a record of noncompliance with your
     interim ventilation plan."
               MR. SCHELL:  And your question was?  I'm sorry.
               MR. SPINNIE:  Where does this record come from?
               MR. SCHELL:  That would come from our sampling. 
     In other words if we go out and find out that they're not
     complying with their plan, you know, they'd be cited for
     that.  But if they keep doing it they're not going to be
     allowed to continue to use that administrative control.
               MR. NIEWIADOMSKI:  And that information is what,
     this is basically what we determined the penalties is in the
     computer system.  All the information is captured there.  We
     would review to see exactly, you know, how many
     overexposures they've had, how many plan violations, all
     that would be considered.  That's the record we're referring
     to actually.
               MR. SPINNIE:  Okay. Example number three, page
     42149, paragraph 7, "Based on the dust parameters that were
     in use for the results of the compliance samples, dust
     concentrations measured by MSHA samples, and the information
     submitted by the operator regarding the types of corrective
     action that were taken, MSHA may elect to sample the cited
     entity to determine the effectiveness of your abatement
     actions."  One again the "may" word.
               To me and a lot of other folks that I discussed
     this with, folks at our local union last Sunday, at our
     local union meeting, we feel that it's too discretionary and
     we need it in the rules.  And we need a clear and obvious
     rule.
               Example Number four, page 42150, paragraph 2.  "If
     the District Manager determines that your production exceeds
     the VPL on more than 33 percent of the production shifts
     over a six-month period, then this may trigger the plan
     verification process using a higher" level.  And, again,
     "may."  Find this too discretionary with all these "mays" in
     here.
               MR. REYNOLDS:  Dan, I just wanted to speak about
     what it says.  We're reading things from the preamble.  But
     let me read you what it says in the actual text of the
     regulation.
               It says, "What must I, the operator, do if I am
     cited for exceeding the applicable dust standard?"  That's
     the section we're talking about in the preamble.
               "If you are cited for exceeding the dust standard
     you must promptly review your dust control procedures to
     determine the cause of the excessive dust concentrations and
     take corrective action to lower the concentration of
     respirable dust to comply with the applicable standard and
     notify the District Manager within 24 hours after
     implementing the corrective action.  MSHA will then sample
     to determine the effectiveness of your abatement actions or
     require reverification of your ventilation plan under
     proposed Section 70.203.  If MSHA samples demonstrate
     compliance you must incorporate these corrective actions in
     your mine ventilation plan.  MSHA may reverify your
     ventilation plan after determining that your dust control
     parameters originally approved may be ineffective in
     controlling the concentration of respirable dust in a
     working environment of the MMU under current mining
     conditions.  If they show noncompliance, the District
     Manager may revoke approval of your mine ventilation plan."
               MR. SPINNIE:  Does this mean must for the operator
     or may for MSHA?
               MR. REYNOLDS:  The "musts" are for the operator. 
     But there are situations where, I mean there may be
     situations where it's not -- I mean once they've done all
     these things there may be no need to revoke the ventilation
     plan.  But MSHA will always have the authority to do that. 
     It's just a warning.
               MR. SPINNIE:  Warning.  Okay.  Nevertheless, you
     know a lot of times you refer back to the preamble as policy
     and the word "may" in there scares me to death.  Because
     over the years I've seen contractor language, I've seen laws
     that had "may" in it, and somewhere down the line "may"
     comes back to haunt you
               And, you know, I got thinking about that word
     "may."  And there under Part 70.2 of definitions I don't
     find the word "may."  And so, you know, I looked it up in
     the dictionary.  And, of course, the first thing it says
     it's the fifth month of the year, which that don't really
     apply here.  
               But secondly it said "or is permitted."  That kind
     of fits.
               Thirdly, "will possibly."  Now that, that kind of
     fits.
               I guess in closing I'd like to say that we need a
     rule that fills the needs of the miner.  And you must
     understand that everything a coal miner has ever got in his
     life he had to fight for it.  You know, we didn't wake up
     one morning and have two weeks' vacation pay.  We didn't
     wake up one morning and somebody tell us that we was going
     to have a safe environment to work in.  We had to fight for
     it.  
               And that, that's why we need something that fills
     the need of the working miner, not one that fills the need
     of corporate chiefs or Wall Street experts or politicians or
     anyone else that doesn't have to work in these environments. 
     And mainly a rule that is discretionary free.  And
     "discretionary" according to the dictionary means "freedom
     of choice and actions."  Now that's pretty broad because
     when you get personalities involved inspecting these mines,
     if it ain't in black and white too many things can happen. 
     It can help you and it can hurt you.  And all I'm -- we need
     a rule that spells it out.
               That's all I have.  Thank you for your time.
               MR. NICHOLS:  Thank you.
               Brad Allen?
     STATEMENT OF BRAD ALLEN, UNITED MINE WORKERS OF AMERICA,
     LOCAL 1984
               MR. ALLEN:  Hello.
               MR. NICHOLS:  Hello.
               MR. ALLEN:  My name is Brad Allen.  I am UMWA
     Safety Committee Chairman for Local 1984, designated miners'
     representative.  I work at the Deserado Mine, 12 miles
     northeast of Ranger, Colorado.  I have 12 years mining
     experience and have worked in many aspects of the
     underground mining operations.  I have worked primarily in
     continuance mining section but have also worked in outby
     areas, longwall faces, and am currently a belt examiner and
     fire boss.
               I'd like to give a little background today on
     myself so you will understand one of the many reasons I am
     here today.  Both of my grandfathers worked in the mining
     industry.  One worked underground and one worked on surface
     at loadouts and driving truck.  Both were diagnosed with
     Black Lung.
               When I was a lad I would walk into the field to
     help my maternal grandpa change water.  We would have to
     stop 8 to 10 times during the trip, and it was as small
     field, so grandpa could breathe.  He later developed heart
     problems and also had to be on oxygen before it all got the
     best of him.
               My paternal grandpa was not as bad as long as he
     did his inhalers.  In his later years he would have to stop
     to catch his breath just to walk from the car to the house.
               And I am here today, as many of my fellow miners
     are, to ask that MSHA take a closer look at the proposed
     rule and follow the Advisory Committee's recommendations
     more closely and not lose sight of the finding and purpose
     portion of the Act.  The rule, as proposed, is gutting the
     Federal Mine Safety and Health Act of 1977.  MSHA has seen
     fit to actually increase the dust level that miners will be
     exposed to which the Advisory Committee called for lowering
     the dust level, allow mine operators to use PAPRs, to expose
     miners to increased dust levels beyond 2 mg, and reduce the
     frequency and number of samples and decrease compliance
     sampling.
               The Act has a goal of being technologically
     inducing, and the technology is available and feasible for
     machine-mounted and personal continuous dust monitors.  Of
     course, unless this is written as a rule that is requiring
     use of such technology in today's mines, operators will not
     "voluntarily comply."  Let's drag the mining community into
     the next century and require the use of continuous dust
     monitors.
               The Advisory Committee called for an effective
     MSHA takeover of the mine operator compliance dust sampling
     program.  And MSHA's answer was to just eliminate the mine
     operator compliance dust sampling program which effectively
     give us, the miners, a significant reduction in the number
     of samples taken.
               The Advisory Committee called for a full shift
     sample.  The 480 minute rule still applied in almost every
     aspect of MSHA sampling procedures in the proposal.  My
     shift is 600 minutes and sometimes five, six or seven days a
     week.  Under the proposal I will allowed to breathe more
     dust than that lucky guy who only has to work 480 minutes
     per day and also inhale that level of dust for the extra
     shifts I'm required to put in.  
               MSHA needs to keep this full shift definition and
     concentration simple and the same level for every miner, and
     that is measure the actual dust that a miner sucks into his
     lungs in the shift and keep the concentration the same
     regardless of the shift length.  No tricky formulas that the
     average Joe may not want to try and understand.  And keep
     the current 2 mg standard or reduce it as the Advisory
     Committee recommended.
               The Advisory Committee called for environmental
     controls to use, to continue to be the method of controlling
     dust.  Control it at its source, not by using protective
     equipment that may or not be worn properly and is still
     subject to scrutiny and to my knowledge has not actually
     been laboratory tested under longwall-like conditions.
               Another possibility is the use of unidirectional
     cutting and slow the shear down and maintain it at a speed
     that will allow the operator to comply with the standard.
               The Advisory Committee opposed changing the Act
     provisions regarding the substitution of use of respirators
     for environmental controls.  And MSHA's proposal to allow
     reduced citation for having a "quality respiratory
     protection program" in place should be removed.  Plan
     revocation, inspector presence and penalty assessments are
     what have historically gotten operators' attention.  We need
     to hold their feet to the fire, period.
               The Advisory Committee called for increased
     miners' representative participation and this was
     sidestepped in the rule and instead issued as policy.  This
     needs to be a hard, fast, black and white rule.  The
     proposed rule was also clouded with policy which is not set
     in stone like a black and white rule.  MSHA should not leave
     any gray areas for operators to dabble in.  Make it a
     regulation.
               The verification of ventilation plans is a good
     idea.  But as stated in the background information in the
     Register that "evidence suggests that it is highly probably
     that some miners are overexposed to respirable dust on
     shifts that are not sampled by either the operator of MSHA." 
     So plan verification will be under optimal conditions, not
     typical.  To get approval and without frequent sampling in
     MSHA presence miners may still be subject to higher dust
     levels.  
               For example, at our mine roadways seem to get
     extra watering when dust samples are conducted.  I recommend
     increasing frequency of sampling in MSHA dust parameter
     checks.
               The verified production level is also a step in
     the right direction.  This should increase the validity of
     actual values for the dust samples that are taken.
               In closing, I want to express gratitude to MSHA
     for recognizing the need for the change in the dust control
     measurement and verification and want to say that under the
     proposed rule we may be forced to ask our senators and
     congressmen to accelerate the federal Black Lung program
     funding and make it easier to obtain.  I suggest that MSHA
     go back to the drawing board and create new rules that are
     more consistent with the Advisory Committee recommendations. 
     Please allow my fellow miners and my lungs to be in good
     shape when we are old.
               Thank you.  I have a copy for you.
               MR. NICHOLS:  Okay, bring it up.
               Brad Peayn.
               MR. PEAY:  That's Peay by the way.
               MR. NICHOLS:  What is it?
               MR. PEAY:  It's Peay.
               MR. NICHOLS:  Oh, okay.  That's spelled "pay right
     here" I guess.
               MR. PEAY:  P-E-A-Y is the way it's supposed to be
     spelled.
               MR. NICHOLS:  Go ahead.
     STATEMENT OF BRAD PEAY, UNITED MINE WORKERS OF AMERICA
               MR. PEAY:  Thank you.  My name is Brad Peay and I
     work at the Trail Mountain Mine that seems to be one of the
     topic mines here today, owned and operated by Energy West
     Mining.  I've been a coal miner for 19 years.  Approximately
     14 years of it's been longwall experience.
               I served on a mine rescue team during the Wilburg
     mine disaster in 1984 through '85.  I currently serve on an
     Energy West Blue Team and I'm UMWA mine committeeman and
     union mine committeeman.  I was heavily involved with the
     060 dust protocol that most everybody's aware of that was in
     effect.  I and as well as Cam Montgomery played a big part
     in that, making sure things were run right, proper on the
     UMWA level, making sure that the men were cooperative.
               I sat through some of the hearings when John Cuzar
     and Bob Paxton come out to get things going.  I watched the
     argument of "we've tried everything we can possibly do.  We
     need the airstreams."  I am thankful for John Cuzar for
     standing up and telling them no.
               As UMWA workers, we knew that there was an
     opportunity there to make the company responsible.  We went
     to the drawing board with the company and ended up being
     able to come into compliance. 
               On the airstreams, which I've been asked to talk
     about, a lot about why I'm up here, when I first went on the
     longwall about 12 years ago it took me a good two months
     before I decided I'd wear them.  And I am thankful to the
     company that it's a policy that when we are on that face we
     wear them airstreams.  
               When NIOSH changed the filters in them airstreams
     we were one of the first ones to complain about them.  Due
     to the changing circumstances and conditions that we have at
     the mine we are in extreme dust conditions.  Some of the
     dust samples were way off the record during the protocol. 
     Conditions changed from day to day through the top.  The
     dust floating off the tops of the shields, you can't see the
     shear operator downwind from you from 10 shields away.
               When we finally got used to the 060 testing and we
     came into compliance MSHA left and things started to go back
     the way it was.  I am here to tell you that there are some
     things that I've witnessed, some things that I've seen that
     I would like to see MSHA hold the operators responsible for
     the things that go on.  
               They have threatened our shear operators by
     holding the tram speed down during sampling.  I have watched
     our shear operators walk away as your MSHA inspectors have
     placed them pumps on them, walk down the pan line, cover
     them over with their jackets.  Now, if this is going on in
     our union mine, what's going on in the non-union mines?
               I have stood toe to toe, face to face with a
     couple of people ready to duke it out on the longwall over
     this.  I don't think our coal miners are educated enough on
     how dangerous slope dust is.  The operators have
     intimidated, "We're going to lose our contracts.  We need
     the coal coming out."  I've watched them pay overtime to get
     good samples.  Please make them responsible.  It's our
     lungs.  We're the ones down there doing the work.  It's easy
     to be out on the surface and call in on a mine phone and say
     How are we doing?  We need more coal.  We don't care about
     the dust it seems to be.
               There are times when we are due to MSHA coming in
     that things start coming back into working order.  The dust
     sprays are starting to work.  But it's not until MSHA's due
     for their samples.  
               I've watched inspectors ignore things.  MSHA
     inspectors need to be more responsible about what's going
     on.
               MR. NICHOLS:  Could you say that again. 
     Inspectors ignore things?
               MR. PEAY:  Inspectors, I've seen inspectors ignore
     things.  Turn around and walk off on these samplings.
               MR. NICHOLS:  Like what?  Like what would they be?
               MR. PEAY:  They've seen these dust samples where
     they've been placed under jackets.
               I am thankful John Cuzar didn't let them have them
     air sampler -- airstreams.
               Conditions change from day to day in our mine.  In
     our mine also during the sampling periods it's amazing how
     the outby traffic has stopped but on a regular day to day
     basis it continues.  We've had people in belt drives that
     have never been sampled.
               You know, and another thing that's on this
     tonnage, these 8 hour days versus these 10 hour days, they
     come in and sample for 8 hours, start them pumps before we
     go in the mine.  They pull these pumps off these guys, turn
     them off outside.  And we've still got two hours, over two
     hours of mining left.  After them pumps leave it's start,
     let's gag it.  Things change as soon as the pumps are gone.
               I believe that through administra -- or
     engineering controls the dust problem can be taken care of. 
     It's been proven.  I've seen it.  I've witnessed it. 
               Is there any possible way MSHA could come up with
     ways to educate the coal mines -- the coal miners on how
     important the dust is? 
               What good are the laws if we don't enforce them
     now?  If they're policies, how are you going to enforce
     policies to make the coal operators responsible?  It's been
     addressed here today.  
               I have the possibility -- I have one son that
     works in the coal mine.  I have a possibility of more sons
     working the coal mine.  Please help us save them.  Thank
     you.
               MR. NICHOLS:  Thank you.
               MR. SCHELL:  Brad, I will tell you the, I will
     pass on your comments about educating the miners.  We put a
     lot of effort into developing hazard awareness materials for
     miners on silicosis and Black Lung.  And if that's not
     getting to you we'll make sure that does.
               MR. PEAY:  I'm aware of that at our mine.  But I'm
     worried about the non-union miners.  These coal operators
     who are thriving on pulling in the 19, 20 year old men,
     young men.  The young man that was killed at Willow Creek
     here two weeks ago, two little children.  Does he have any
     idea how, what the dust did to him?  It's the non-union
     mines.  Now that they're getting ready to close Trail
     Mountain down am I going to be able to go to a non-union
     mine and be able to enforce what I know as a worker?
               MR. NICHOLS:  Okay, thanks.
               Bobby LaBleuw.  How close was that?
     STATEMENT OF BOB LaBLEUW, UNITED MINE WORKERS OF AMERICA,
     LOCAL 1984
               MR. LaBLEUW:  Hi.  I'm Bob LaBleuw.  And I'm from
     Local 1984 out of Deserado Mine, Ranger, Colorado.  I've
     been a belt repairman with them for 11 years underground. 
     And I had a bunch here I was going to read off but
     everything seems to have been covered pretty good today.
               For the sake of this time I'd just like to state
     for the record that our local stands behind the rest of our
     union brothers who's testified today, we stand behind
     whatever they've said today.  And that's the dust standards
     need to be lowered, no raised.  Single full shift samples
     should be that, full shift, whether it's 8, 10 or 12.
               I'd like to see you put a high priority on getting
     the continuous dust monitors.  I don't know how you do high
     priorities in MSHA or whatever, NIOSH.  And one other
     concern is looking out at more samples on the outby areas,
     more DAs.  I think that's a big problem.
               And I just want to urge the panel to take the
     recommendations of the Advisory Committee and go back and
     re-do this a little bit, fine tune it.
               And that's all I have.
               MR. NICHOLS:  Okay, thanks.
               Larry Pasqule.
     STATEMENT OF LARRY PASQULE, UNITED MINE WORKERS OF AMERICA,
     DISTRICT 20, ALABAMA
               MR. PASQULE:  Good afternoon.  My name is Larry
     Pasqule.  I'm UMWA District 20 in Alabama.  I am also a
     District 20 board member.  
               And I was at the Prestonsburg, Kentucky hearing
     last week.  I made some comments and asked questions to this
     panel.  And after listening to what was said by both the
     people who gave testimony and the panel I went back to my
     district in Alabama and attended some local union meetings
     this past Saturday and Sunday and gave the membership an
     update on what was said by coal miners and the panel.
               The members in Alabama asked me to come here today
     and make a few statements on their behalf.  We went over the
     Advisory Committee, went over some of the discussions and
     some of the proposed language or some of the proposed rule. 
     They wanted me to express to you, the panel, that they were
     in favor of the Advisory Committee's recommendations,
     especially Number 6 which gives a walkaround right, Number
     8, more research, especially Number 14 dealing with the
     construction workers, especially in shaft and slope, Number
     19B and C on the dust sampling aspect for the coal miners to
     basically do the dust sampling and to be part of the dust
     sampling.
               Coal miners in UMWA District 20 after myself
     listening to the talk earlier by the gentleman from District
     12, UMWA District 12, President of Local 2161's letter that
     he had sent to MSHA, that basically echoes what's being said
     in the meetings that I attended with my membership this past
     weekend.  And I support that gentleman's letter that he
     mailed off to MSHA.
               And the question was asked, I know I asked it last
     meeting to the audience when we were up in Prestonsburg, if
     coal miners wanted to play a big part in the sampling?  A
     lot of them told me yes.  Again, a lot of them told me yes
     this past weekend at a lot of the union meetings.  And I
     attended three to be exact.
               And, you know, I'm not a negative type person. 
     Always try to look at some type of a positive.  And but I
     would like to, and I spoke about this last week in Kentucky,
     but I would just like to remind the panel, if we would all
     just work together for the health and welfare for the coal
     miners a lot can be accomplished.  Let's look at the
     technology that's available out there by both MSHA and
     NIOSH.  And statements have been made by both agencies the
     technology is there, the monitoring systems are there to
     monitor dust levels.  What we have to do, ladies and
     gentlemen of the panel, is make it a regulation, a
     government regulation.  The technology is there for the
     machine-mounted type stuff to monitor the dust levels for
     respirable dust.
               Again, I believe you remember the testimony given
     by one of the construction workers that was there.  And I
     want this again on the record.  Remember Mike Nelson's
     testimony last week, the construction worker who worked in
     the shaft and slope.  Those people have nothing to really
     protect them.  I urge you to go back, look and adopt at
     least Advisory Committee recommendation Number 14 for those
     construction workers.  Those boys need something.  They're
     working in a 14-foot round hole with those drills. 
               I know Daryl Dewberry spoke on it a little bit. 
     He'd done that type of work.  I inspect those shafts all the
     time.  I don't know how those guys do it.  I really don't. 
               We have some good inspectors in district, your
     District 11 that help us out in safeguards for those people. 
     But we need law.  Safeguards aren't going to get it.
               We're in the process right now of putting some
     safeguards together to sink a shaft at Jim Walters Number 7
     mine.  It's going to be pretty close to 2,300 feet, that
     shaft.  Right now we've completed one at number, Jim Walters
     Number 4.  It was 1,800 and some odd feet.  Or at Jim
     Walters Number 5 right now they're probably about 280, 300
     feet from completion of the Number 5 shaft.  We have a lot
     of that shaft and slope type work in Alabama and we need
     some laws for my people, especially in shaft and slope.
               We need the rules to protect the coal miner from
     coal mine dust, a rule requiring the use of modern
     technology that's waiting to be used to save coal miners'
     lives and protect them from black lung.  
               A lot of this has been told to me by the people
     this past weekend.  I'm sure this weekend when I attend some
     meetings they're going to ask me what went on in Utah.  And
     I will tell them.
               This panel needs to listen to what has been said
     at all the hearings and follow the Advisory Committee's
     recommendations.  Again, I'm going to say for the record, as
     I said last week, remember Congress' intent in passing the
     Coal Mine Health and Safety Act is clearly spelled out in
     the Act's first sentence: to protect the health and safety
     of the mine industry's most precious resource, the miner. 
     Please, gentlemen and ladies, remember that.  And thank you
     for your time and allowing me to speak.  Thank you.
               MR. NICHOLS:  Thank you.
               Randy Klausing.
               MR. RANDY KLAUSING:  Good afternoon.
               MR. NICHOLS:  Good afternoon.
               MR. RANDY KLAUSING:  Are you guys tired yet?
               MR. NICHOLS:  No.
               MR. RANDY KLAUSING:  Come on.  You are too.
               MR. NICHOLS:  Say what?
               MR. RANDY KLAUSING:  You're tired.
               MR. NICHOLS:  Oh, no.  I'm like a --
               MR. RANDY KLAUSING:  I can see it in your eyes.
               MR. NICHOLS:  I'm like a John Deere tractor, man,
     I just keep pounding.
               MR. RANDY KLAUSING:  Is that right?
               MR. NICHOLS:  Yes.
     STATEMENT OF RANDY KLAUSING, UNITED MINE WORKERS OF AMERICA
               MR. RANDY KLAUSING:  My name is Randy Klausing.  I
     work at Old Ben Coal Company, Coulterville, Illinois.  I've
     been a miner for 25 years, UMWA miner for 25 years.  I just,
     a lot of questions.
               I was at the hearing last week in Kentucky.  I
     went over this stuff again still having a hard time soaking
     this stuff in.  I've got some questions on your MSHA's
     bimonthly sample, five or more miners if available.  What
     does that mean, "if available"?
               MR. SCHELL:  On some sections just that there just
     aren't five miners available.  The best example I can give
     is in anthracite.
               MR. RANDY KLAUSING:  Okay.
               MR. SCHELL:  Where there may not be five people on
     the section.  Most of the sections we, you know, would have
     that.  But if they're -- if the crew is less than that we
     would sample as many as we could, Randy.
               MR. RANDY KLAUSING:  Okay.  On another question I
     got, the abatement, if the abatement, if management fails
     once MSHA comes in to abate a citation what happens to the
     plan?
               MR. SCHELL:  As I mentioned this morning, if --
     since that plan was verified since if that plan, those
     control parameters were supposed to be on-shifted prior to
     production, if that plan fails the first thing we're going
     to look at is what's wrong with that plan?  And that could
     force us to tell the operator you need to go back and
     reverify your plan.
               Since we're doing the sampling if we believe
     something else happened, for example, they ran into a really
     unique condition or maybe a miner was putting themselves in
     a position that they shouldn't have, in other words if we
     don't believe that the plan is bad we'd go back and just
     sample to check that.
               For the most part what we're looking at is when
     you go out of compliance we're wondering what's wrong with
     that plan.
               MR. RANDY KLAUSING:  Okay.  On, we talked earlier
     with you and I understood it more after you guys explained
     it with your percentage on your new plan, like you know
     second shift was the example, if it was the highest that's
     what we're going to go with.  You know, that's great, you
     know, because usually I'm a day shift examiner.  I'm
     chairman of safety.  I'm with the inspectors all the time. 
     We've never that I could remember been sampled on seconds or
     thirds.  And that's where the production is, which is good. 
     I applaud you guys for doing this because that puts
     everybody in the park.
               If once you have that stat where we've got the
     amount that we need for this plan to be approved, once the
     inspector comes in and inspects or puts his pumps on, which
     is going to be day shift nine chances out of ten, which
     really don't make any difference because you have the plan,
     it's got to be there, if he don't exceed that, if he's below
     that level there, what happens?  Do we look at the plan
     gain?
               MR. SCHELL:  If he doesn't exceed that?  You mean
     if the plan comes in in compliance?
               MR. RANDY KLAUSING:  Yes.  And he's got, for
     instance, you have X amount of tons that he has to be in
     with this plan that he has approved and he does not get that
     with his sample, what happens?
               MR. SCHELL:  What we'd be doing, Randy, is trying
     to figure out what was happening.
               MR. RANDY KLAUSING:  Okay.
               MR. SCHELL:  For example, let's say that a plan
     had been approved at 1,000 tons, we come in and sample and
     they reach 500 tons.  And the dust level is 1.9.  We need to
     figure out what happened there because that plan's been
     verified at 1,000 tons.  If you're at 500 tons you shouldn't
     be at 1.9.  So we'll be making a judgment.
               Remember, since we're going the sampling we're
     going to know what plan parameters were in place.  We'll
     know what's in the plan.  We'll be able to compare those. 
     We'll know what production level the plan was verified at,
     what the actual production level was.  We'll be able to tell
     where the miners are.
               So what we'd be doing is looking and saying, okay,
     what would we expect the dust levels to be based on what we
     saw?  And if we find these discrepancies then we need to go
     back and figure out what's happening.
               MR. RANDY KLAUSING:  So will we sample again?
               MR. SCHELL:  We could or we could notify the
     operator they have to do plan verification again.
               MR. RANDY KLAUSING:  And such as if it's -- what -
     - See, that's what I don't understand.
               MR. KOGUT:  Before you go on could you clarify one
     thing in your question?  Are you talking about the
     production level not coming in above the verification --
               MR. RANDY KLAUSING:  Right.
               MR. KOGUT:  -- VPL?  Or are you talking about
     doing verification sampling or doing compliance sampling?
               MR. RANDY KLAUSING:  Both, regardless.  Both of
     them.
               MR. KOGUT:  Okay, well it's two different
     situations.
               MR. RANDY KLAUSING:  Okay.  Explain.
               MR. KOGUT:  If, well, I'll handle the
     interpretation part and then you can talk about the
     compliance verification.  If it doesn't come in at or above
     the VPL during verification sampling then that will not
     count as a verification sample.
               MR. RANDY KLAUSING:  So we just keep continue
     sampling until we --
               MR. KOGUT:  That's right.  You keep.  Then the
     inspector would have to come back on another shift again.
               MR. RANDY KLAUSING:  How long will this consist
     of, weeks?  Months?
               MR. KOGUT:  Well, for the most part it shouldn't
     take --
               MR. RANDY KLAUSING:  Is there a time period? 
     That's what I'm asking.  Is there a time period?  If he
     cannot exceed what his plan is saying he's wanting to do
     MSHA keeps coming back until he does exceed that?  Is that
     the way I understand it?
               MR. SCHELL:  Or until we disapprove the plan.
               MR. RANDY KLAUSING:  Or until you disapprove the
     plan.  And then they have to come in and submit another
     plan?
               MR. SCHELL:  Yeah.
               MR. RANDY KLAUSING:  What's that consist of? 
     Because you're taking his average of the 30 shifts
     production.
               MR. SCHELL:  Well, then they're going to have to
     make changes and come into compliance.  If they can't verify
     their plan, okay, and normally we're talking a continuous
     miner section, they don't have a choice, they have to have
     an approved plan or they don't mine.  So if they can't
     verify their plan at their VPL they're going to have to do
     something, either introduce more controls or cut their
     production or whatever.
               MR. RANDY KLAUSING:  Well, that's what I'm trying
     to find out.  If they can't meet that so they lower it?  Is
     that how they're going to?
               MR. SCHELL:  Or do more controls.  In our view we
     think that the control technology exists.
               MR. RANDY KLAUSING:  Okay, let's say we're not
     going to do the controls, we're just going to, we're going
     to tell you, MSHA, that we won't load that much coal?
               MR. SCHELL:  They could do that.
               MR. RANDY KLAUSING:  And that would be approved?
               MR. SCHELL:  If they verified their plan.
               MR. RANDY KLAUSING:  That's when you guys test,
     they'll come in and say, okay, we've got an inspector, he's
     going to do his dust.  We're not going to load the coal like
     we do before.  They could do that?
               MR. SCHELL:  Uh-huh.  But what they do, Randy, but
     what they do is every shift they produce they have to keep
     records.
               MR. RANDY KLAUSING:  True.
               MR. SCHELL:  So if they're playing a game on us
     we're going to find out very quickly.
               MR. RANDY KLAUSING:  Well, yeah, they are. 
     Because if they can't control their dust and you just said
     if they come back and say, well, we won't load, we'll drop
     our production.
               MR. SCHELL:  Well, we'd have to be comfortable
     that their plan's okay.  I mean if they just simply say
     we're not going to put any controls in place and drop our
     production our answer is no.  Here are some things that you
     can do.  You need to increase your water.  You need to
     increase your air.  So we don't give tentative approval to
     that plan if we think they're gaming us.  We don't give
     tentative approval to that plan for verification unless
     we've got some reason to believe it's going to work.
               MR. RANDY KLAUSING:  So each time as it goes on,
     as it goes on days, months, months, months, months, you guys
     are still going to monitor their production sheets?
               MR. SCHELL:  Yes.  That's why we want that
     production, every production shift on every MMU kept for six
     months.
               MR. RANDY KLAUSING:  So once, and you guys are
     going to come in and inspect these areas just like you do
     your diesel books and electrical books and stuff like that?
               MR. SCHELL:  Yeah, part of the dust, part of our
     sampling will be to look to see what their production has
     been.
               John made the point we're verifying that at the
     10th highest production.
               MR. RANDY KLAUSING:  Yeah, which is great.  Which
     is great.
               MR. SCHELL:  Yeah.  Which means we expect
     periodically to see production above the VPL.  But if you
     start getting to the point where 50 or 60 percent of your
     production is above the VPL and they're coming in at 1.9,
     there's something wrong.  You need to go back and verify
     your plan.
               MR. RANDY KLAUSING:  Nobody is going to get a plan
     verified at 1,000 tons and product at 1,500.  I mean --
               MR. SCHELL:  Well, yes.  
               MR. RANDY KLAUSING:  -- that ain't gonna.
               MR. SCHELL:  True.
               MR. RANDY KLAUSING:  Okay, now we got with this,
     and this, I still, I still don't understand this and people
     at my mine don't understand it.  You guys on abatement time,
     it's a full shift that the inspector is going to be there
     with his pumps, on abatement?  That's the only time?  Beside
     the approval of the plan?
               MR. SCHELL:  That's right.
               MR. RANDY KLAUSING:  But then I heard this travel
     time.
               MR. NIEWIADOMSKI:  The full shift means full shift
     that includes travel time.  That's portal to portal. 
     Verification for abatement, reason for abatement that is
     full shift.  We want to make sure that the controls that the
     operator implements do in fact maintain concentrations at or
     below the standard for the entire shift.  So we're assessing
     the accuracy of the controls.
               MR. RANDY KLAUSING:  So once he's in there if
     they're working 10 hours, 9 hours, that inspector is going
     to be there until that shift is done?
               MR. NIEWIADOMSKI:  The full shift.
               MR. RANDY KLAUSING:  The full shift.  Guaranteed.
               MR. NIEWIADOMSKI:  -- 11 and 12 hours.
               MR. RANDY KLAUSING:  Okay.  All right.  Let's see
     what else I have here.
               I know, Marvin, you talked about and, of course,
     Ron has too, the consistency of a plan.  You know, I've
     heard you talk about that, you've got to have a plan. 
     Granted, you have to have a plan.  On ours, which we got
     miners, continuous miners, we got our dust control
     parameters that we have to do before we load.  If we're
     hotseating, you know, you got that area that if you're
     hotseating you've got an hour after or if you're coldseating
     you do it then.  It's good if it's enforced.  There's the
     key.  A plan is good -- and you said it -- a plan is good if
     it's enforced.
               MR. NICHOLS:  Yeah, if we can't get that done
     everything is hopeless.
               MR. RANDY KLAUSING:  There you go.
               But then we're going to turn around and we're
     going to sample six times a year.  I know you're heard this.
               MR. NICHOLS:  Okay.
               MR. RANDY KLAUSING:  And you're getting sick of it
     and.
               MR. NICHOLS:  No, I'm not sick of it.
               MR. RANDY KLAUSING:  Oh, you're not?
               MR. NICHOLS:  No.  Let's say we sample 40 times
     that leaves how many shifts?
               MR. SCHELL:  Three hundred and sixty.
               MR. NICHOLS:  Three hundred and sixty.  So what
     are you going to do on the other 360?
               MR. RANDY KLAUSING:  Well, that's true.  But a
     plan is as good as has been enforced.  There's the key,
     enforce the plan.
               MR. NICHOLS:  Well.
               MR. NIEWIADOMSKI:  If we in fact verify a plan
     that's supposed to be effective under high production
     conditions but what you're saying is that that plan is not
     going to be complied with?
               MR. RANDY KLAUSING:  I wish I could say that.  It
     would make it easier.  But, no, I can't say that because
     things happen.  You got an inspector comes in and he says --
     if he's in there monitoring his pumps on a day shift and
     something happens where he don't get that production where
     he's supposed to within that range, it's up to the inspector
     to say, well, they had a -- the haulage roads were bad.  But
     they weren't bad on seconds and thirds but they were bad on
     days.
               See, you've got stuff that --
               MR. NIEWIADOMSKI:  Let me correct something on
     compliance sampling given the production, okay.  The
     verification standards say there is my production level and
     we want to test the plan.  For compliance sampling minimum
     production for the samples being done on 60 percent of
     average, okay.  So if you in fact do not get 60 we would
     consider, we would in fact go back and sample again.  All
     right.  So it's not being -- and they're not going to have
     difficulty achieving or shouldn't have difficulty achieving
     60 percent for us to collect a valid sample.
               And the thing is it's very important the inspector
     makes those checks he's going to, and it's kind of
     important, he makes those checks he's going to document it. 
     And that information is going to be then sent to the
     operating shifts and posted on the bulletin board.  If in
     fact the miners feel that those parameters or at least
     what's being measured during sampling, that's not what's
     being maintained during non-sampling periods that's going to
     be brought to the attention of the inspector.
               MR. RANDY KLAUSING:  Well, your records on your
     production would show you that too.
               MR. NIEWIADOMSKI:  Right. 
               MR. RANDY KLAUSING:  It would because --
               MR. KOGUT:  I think George is talking about all
     the dust controls --
               MR. NIEWIADOMSKI:  Yes.
               MR. KOGUT:  -- that are supposed to be in place
     though.
               MR. RANDY KLAUSING:  Well, that would show too. 
     Because if there's an inspector on days and he's, and
     there's -- and he's checking his parameters and then you're
     saying that you're going to keep an eye on their production
     sheets and you see a trend that seconds and thirds is
     higher, you know that they're not doing, they're not
     following their plan on seconds and thirds.
               MR. NIEWIADOMSKI:  No, no, that doesn't mean it. 
     That says production is high, it doesn't mean that they're
     not complying with the plan because he's supposed to be
     doing it on shift; right?
               MR. RANDY KLAUSING:  True.  But they can't do it
     on days because the inspector is in there with his pumps and
     they're making sure that they do their parameters.  But you
     see it on their production that seconds and thirds, not
     much, but they're higher than what days is.  Granted, maybe
     he is still in that range.  But there's still a difference
     in production on seconds and thirds.
               MR. NIEWIADOMSKI:  Well, if we saw that, as Jon
     indicated, that exceeds 30 percent, 33 percent of the time
     that they're consistently high we would in fact go back and
     then reverify the plan under the high production.  So
     that's, we have it in there.  And, basically, we're not
     expecting every shift.  We're not saying that there aren't
     going to be some shifts that are going to be high.  We're
     going to limit how many shifts are going to be higher than
     the VPL.  Is they're exceeding that certain limit we're
     going to go back and reverify.
               MR. RANDY KLAUSING:  What is the limit?
               MR. NIEWIADOMSKI:  Well, we're saying 33 percent
     on the shifts.
               MR. RANDY KLAUSING:  33 percent.
               MR. NIEWIADOMSKI:  If they exceed that, you know,
     we're back to verification sampling.
               MR. SCHELL:  Randy, a lot of the model this is
     based after isn't any different than what we do with roof
     control or ventilation.  You've got a ventilation plan
     that's supposed to control the methane.
               MR. RANDY KLAUSING:  True.
               MR. SCHELL:  A roof control plan to control the
     roof.  That, that plan has to be approved.  The operator
     does their examinations to make sure they're complying with
     it.  MSHA comes in periodically and checks to see the
     operator is doing what they're supposed to do.  
               That concept has really been a remarkable success
     of the Mine Act, this whole idea of designing plans that are
     tailored to the mine.  And what we're really doing is taking
     a concept that has worked, I think we'd all agree well, in
     roof control and ventilation and moving it to the health
     area.  Good plans, on shift, and period follow-up by MSHA.
               MR. RANDY KLAUSING:  Well, there's the key, the
     follow-up on MSHA.  Just, you know, like I'm saying, I deal
     with MSHA majority, 90 percent of the time on day shift. 
     And like I said, you have your plans, your electrical books,
     your diesel books.  You know, your inspector goes through
     these on the quarters.  You know, we checked it.  We flipped
     through the pages.  We flipped through the pages.  We
     flipped through the pages.   It's, I guess it's just a
     routine.  Routine.  Routine.  Because we never follow up. 
     We never follow up.  The exhaust.  I mean I'm getting off
     the stuff but it actually falls into what your 30 shifts
     because he's going to be inspecting that.
               But, and I'm not a real educated person but I can
     see, and I've brought it to their eyes that this piece of
     equipment is always right there, same, identical, nothing
     varies.  Come on, something's got to vary, the exhaust or
     something.  You know, something's got to vary because it's
     never going to be identical the whole time.
               And you're taking with the production of
     management's reports that they're in that ballpark numbers. 
     You're consistent of numbers is what you're saying.  Hell, I
     could put numbers on there.  That don't mean I'm doing it. 
     How are you guys going to find out?  How are we going to
     find out?  Because I don't go down there and measure their
     tonnage.  Now how are you guys going to find out?  You're
     going to take the word of management; is that not correct?
               MR. SCHELL:  Well, to some degree.  But if you
     track it on a map you've got a pretty good idea what they're
     mining on a section.
               MR. RANDY KLAUSING:  No.  How?
               MR. SCHELL:  Well, we've done it in the past. 
     We've gone in and marked the map and come back.  And you can
     calculate how much coal has been removed over a period of
     time.
               MR. RANDY KLAUSING:  I'm not doubting you but I've
     never seen that.  All I'm saying is you're taking what
     management puts in a book, whatever, if their tonnage is
     this that's what they're putting.  Is that not correct?
               MR. SCHELL:  Well, yeah.  We're going to look at
     it.  If we catch them falsifying that book we're going to do
     something about it.
               MR. RANDY KLAUSING:  Well,
               MR. SCHELL:  But you can, you can --
               MR. RANDY KLAUSING:  The only way that you're
     going to find out is I guess going down there and measure I
     guess the ton, how much coal they actually cut.
               MR. SCHELL:  Well, we've got you guys to give us a
     good idea.
               MR. RANDY KLAUSING:  I don't know.
               MR. SCHELL:  But don't you know on any given shift
     what kind of coal you produced on that shift?
               MR. RANDY KLAUSING:  I know buggywise.
               MR. SCHELL:  That's all we need to know.
               MR. NICHOLS:  That's good enough.
               MR. SCHELL:  That's good enough.
               MR. RANDY KLAUSING:  That's good enough?
               MR. NICHOLS:  That's good enough.
               MR. SCHELL:  We can figure it out from there.
               MR. RANDY KLAUSING:  Oh, well, okay.  So we got
     them now.
               MR. NICHOLS:  We got them now.
               MR. RANDY KLAUSING:  Burn their ass.
               (Laughter.)
               MR. NICHOLS:  Thank you.
               MR. KOGUT:  I'd like to clarify.  I'd like to
     clarify one thing about the 33 percent that you were talking
     about that would trigger, you know, trigger a possible
     reverification.  One of the things that we specifically
     solicited comments on was setting the VPL at the 10th
     highest.  We solicited comments on whether that should be
     raised to a more stringent criterion.  
               Now, that 33 percent is tied specifically to the
     10th highest.  So part, in your comments if you recommended
     raising that to something higher, a higher production level
     than the 10th highest then that 33 percent would be tied to
     that.  Do you understand what I'm saying?
               MR. RANDY KLAUSING:  So what you're saying is if I
     recommend that you raise that you'll do it?
               MR. KOGUT:  No, I didn't say that.
               MR. RANDY KLAUSING:  Oh, well, that's the way I
     take it.  I'm sorry.  But that's the way I took it.  Hell,
     I'll do it.
               MR. KOGUT:  Okay, no, I didn't mean say that.
               MR. RANDY KLAUSING:  Oh, that's the way I took it.
               MR. KOGUT:  I'm just saying that the 33 percent is
     tied to the 10th highest.  If it was something other than
     the 10th highest then it would be something other than 33
     percent.
               MR. RANDY KLAUSING:  Okay.
               MR. GRAYSON:  Randy, question.
               MR. RANDY KLAUSING:  Shoot.
               MR. GRAYSON:  In your experience are the dust
     controls maintained as well on second shift as first shift?
               MR. RANDY KLAUSING:  No.  No.
               MR. GRAYSON:  Even if the production level was 900
     tons on day shift and that's the tenth, one tenth highest
     would you still think that the controls would be different?
               MR. RANDY KLAUSING:  If, now what now, if it's
     900?
               MR. GRAYSON:  In other words the day shifts were
     coming in at 900 tons and that's basically what you're
     saying is the higher shifts are second and third.
               MR. RANDY KLAUSING:  Right.
               MR. GRAYSON:  And on day shift with controls in
     place would those controls be the same for the second and
     third shift?
               MR. RANDY KLAUSING:  If?
               MR. GRAYSON:  If you're mining the same tonnage?
               MR. RANDY KLAUSING:  If we're mining -- then it
     would have to be.
               MR. GRAYSON:  You think so?
               MR. RANDY KLAUSING:  I don't --
               MR. GRAYSON:  I was just wondering.
               MR. RANDY KLAUSING:  I don't know.  I would think
     so but that, you know, that's just me.
               MR. NICHOLS:  Okay, thank, Randy.
               It's 6:00 o'clock and we have four more
     presenters.  Tom, how much time do you think you'll need?
               MR. WILSON:  At least an hour.
               MR. NICHOLS:  Joe, how much?
               MR. MAIN:  About 30, 45 minutes.
               MR. NICHOLS:  Scott, how much will you need?
               MR. BOYLEN:  Five, ten minutes.
               MR. NICHOLS:  Five, ten minutes.
               John, how much will you need?
               MR. DE BUYS:  Five to ten.
               MR. NICHOLS:  You guys would be willing to let
     them go tonight, wouldn't you, to get that out of the way
     and we'll come back with you and Joe in the morning?
               Scott, come on up.
     STATEMENT OF SCOTT BOYLEN, UNITED MINE WORKERS OF AMERICA
               MR. BOYLEN:  My name is Scott Boylen.  I'm the
     safety director for Canyon Fuel Skyline Mine located near
     Helper, Utah.  And I'm here today to represent the employees
     of the mine.
               A couple comments I guess before I get started. 
     I'm very thankful I came today.  Some of the comments I
     heard, I am fortunate, I've grown up around the coal
     industry and the comments that you hear today are
     essentially repetitive of what I've grown up around.  So it
     doesn't -- I don't know how I want to say this, but the one
     thing that makes you feel good, I guess, with the
     organization that you're working with today that we feel
     that some of the testimony is true because I've had the
     opportunity to work at other operations.  But the one thing
     that we are proud of is I think we take it in a little
     different perspective and a little different view of what
     the significance of dust is and we try to address that every
     day.
               So to get started.  What we did at the operation
     we took and put a comment period around.  More or less
     pulled comments from anyone that wanted to comment.  And
     this is a summation of what we've got.  And I have the
     luxury of presenting it today, so.
               Anyway, we looked through it and one of the first
     statements in the registers talks.  It says the federal mine
     inspector sampling results during the 1968-1969 years showed
     the average dust concentration of a miner operator in an
     environment was an average of 7.7 milligrams.  Current
     sampling for the fiscal year 1998 indicates that the average
     dust level for a continuous miner operator has been reduced
     by 86 percent to 1.1 milligrams.
               I think the consensus when we read this was it
     just tells you somebody is doing something right.  I mean it
     shows a traumatic or dramatic improvement.  And I think,
     yes, the system has its faults but in the same respect to
     give Mr. Nichols credit I think, you know, if the parameters
     that are proven are applied, are upkept day to day I think
     that is proven in the outcome of the results that you get.
               So, with that said if you go further into the
     report and it says mine operators have reported 224 cases of
     Black Lung during 1998.  It goes further to say 138 cases
     occurred underground while 86 cases occurred from surface
     miners.  To us this raises some several questions, valid
     questions in this proposal.
               We feel that the history of these individuals
     would offer some possible reasons for these cases.  A couple
     questions we come up with was, one, how many of these
     reported cases are by persons who became employed in the
     coal industry after the passage of the 1977 Act?  We feel
     that's very critical for the simple fact I think many of the
     miners, I think that's one thing about a coal mine industry
     it's generation by generation.  The majority or the people
     today are at least second generation miners.  And you look,
     we've all had, we've all had the dealings with either a
     family member or someone close that you have known that did
     legitimately have Black Lung.  It's a terrible disease.
               But I think there is some significance in the fact
     were these prior to the Act of '77?  And the point being
     there is it ties in also with the reduction from the 7.7
     milligrams to the 1.1.  And that just goes to show the
     continual strides that we continue to make.
               Next, you know, if you want to categorize issues,
     if you take the mining type this person was exposed to.  Was
     his entire career in the face?  You know, typically, you
     know, you take a miner's history very few people spend the
     entire life of their working career in one occupation.  The
     majority of the people I think the preference would be to go
     to an outby position.  So how much consideration has been
     taken in that?
               Ventilation type.  You know, you can look at, I
     don't know the significance, possibly the fan type whether
     blowing or exhausting if that has any bearing.  But
     definitely a line brattice or a tubing situation in a miner
     section, how much consideration has that been given to the
     type of exposures the persons were around?
               The type of section haulage, electric, battery,
     diesel, you know, is that a contributor?
               Mine location.  As one in the west many of the
     issues that we hear about, no disrespect, but are heavily
     influenced from what is going on in the east.  So that would
     be one question we would ask is are these persons that were
     reported what region did they come from, east, west,
     southwest?  Where were they from?
               The rank of the coal that the persons worked in,
     how much consideration has been given to this?  
               And, one, it's kind of a personal question, I
     think sometimes people tend to take offense to it also, but
     was the person a smoker?  If so, to what degree?  Did he
     smoke his entire life?  You know, how much did he smoke?  I
     think those are some valid questions that can, you know,
     determine an outcome whether the person, how he obtained the
     black lung so to speak.
               I'll move on a little bit, talk about ventilation
     plan, the verified ventilation plan that would be required. 
     We feel that right now that, you know, our plan is reviewed
     every six months.  And we look at this and basically it's to
     assure that it is suitable to current mining condition.  The
     present format we feel is adequate means of ensuring
     compliance in additional views in this area would be
     redundant and would not be cost effective for either party. 
     So the mechanism is in place.  Every six months you're going
     to conduct a review.  So we feel that would be, you know, if
     it's not broke, don't fix it.
               Let me back up a little bit on my paper here.  It
     says the single shift sample was determined to be an
     inaccurate means of sampling by the secretaries in 1972. 
     The finding concluded that a single full shift measurement
     of respirable dust would not, after applying valid
     statistical techniques, conditions to which the miner is
     continuously exposed.  Nothing has changed in respect to a
     single sample being the sole means of measure and,
     consequently, a fair representation would never be
     obtainable by means from a single source.
               MSHA recognized this shortfall soon after the
     passage of the Act in 1969 and began development of a fair
     representation of quantity of respirable dust that the miner
     in question is exposed to, which basically is what we're at
     today.  The issue that a 1972 finding would be reassessed as
     new technology was developed and new data become available
     has been focused on an evaluation portion.  I think we all
     agree that, yes, the continuous monitoring pumps is
     definitely where we need to be.  But I think today we are
     not there.  So our stance would be absolutely.  If we could
     do something like that we concur with the National Mining
     Association, we agree with their comments, when we get to
     that point technologically we feel that is the way to go. 
     But today we are not there.
               Another considera -- Excuse me.
               We also, we give MSHA credit in that there has
     been great improvement in respect to how the final sample is
     handled and measured.  You know, really you guys have come a
     long way in how the sample was, the final sample is handled. 
     I think a lot of times -- not a lot of times, but the
     question with many operators is we continue to scrutinize
     how the data is collected.  
               MSHA admits that there is concern in the area of
     weighing uncertainty.  Side by side comparisons have proven
     that the repeatability and validity of a sample is of great
     concern.  Skyline made the same comments in '98 on this same
     issue.  At the time, I was not there at that time, but the
     went through great measures to run side by side comparisons. 
     And the results were that they could not find a true
     repeatability even by one side to another side of the
     person's body.  So that raises various questions in our
     minds is the accuracy of the pumps.  So, you know.  So.
               Until there has been a significant improvement in
     this portion of the sampling process a fair and repeatable
     means of collection is not attainable.  This issue is the
     premise of the entire discussion.  I think that's really
     what we're looking at is I think everybody, all parties
     involved want to get to a point to where you can have the
     closest accuracy of the sample and hang you hat on it, you
     now, every day.  And I think no one would argue that.
               The question in our mind from a single operator,
     are we there?  And we don't think we are.  Because we
     continue to struggle with side by side comparisons.  So.
               Part of the other study we read into, and I think
     there's some value in it as far as where the 2 milligram
     standard have come, but many of the studies use in the
     comparison and documentation were from other countries. 
     You're talking European standards, you're talking Australian
     standards.  For the record and for what it's worth, that is
     a 3 milligram standard.  The point is that there's been
     tremendous change.  I guess what I would say there, the
     point in time when the comparative studies were done, many
     on -- especially the English study that was quoted, was done
     prior to '77.  So our stance on that would be also you tie
     that into the comparison from the '69 on the CM to the
     percent day on the CM and you see the dramatic changes.  So
     I think there's been some help but the comparison is
     probably not a valid comparison into what, you're not
     comparing apples to apples to today's standards.
               So, consequently, we say a comparison as such does
     not reflect a true to form comparison with present day
     consideration given to respirable dust.
               We'll make the statement as well by all means it's
     not perfect, the airstream helmet.  It does it have its
     faults.  But I think the thing it proves you there is where
     there's a will there's a way.  And I think the technology
     that we have you look at the technology, especially in the
     area of longwalls, and the last ten years with the
     mechanization, with the electronics that's come forth, the
     water curtains, the programmable shields, I think the thing
     that we're looking at is and we're encroaching upon this. 
     And I do truly believe that we'll get there.  It's just
     this, what we're trying to get to today is maybe a little
     bit premature.  
               So I think in closing, from the Skyline operation
     we agree in the intent but we feel that the technology that
     we're trying to apply does not have the adequacy to attain
     the results.  And we feel that this needs to be either
     rethought or the emphasis needs to be placed on
     technological improvements in either the sampling process
     and also from the manufacturers' standpoint to further
     continue to try to find means to either engineer out the
     problems or look at administratively how can we position
     people to minimize the exposure.  And I think that is the
     key is I think a lot of times we get hung up on the fact,
     and this is definitely not the topic of the discussion
     today, but the 060.  
               And you look at the 060 and I think it has its
     value in the sense that it makes you adhere to a more
     stringent policy, no doubt, that's black and white.  But the
     question you ask yourself, are you measuring if I am on that
     face are you measuring my personal health, what I'm being
     exposed to or are you taking that particular occupation? 
     And I think we all know the answer to that. 
               So, anyway, I'll close at that.  And I thank you
     for this opportunity.  And I would say we just need to
     continue looking forward and with the understanding that one
     day we'll get there.  Thank you.
               MR. NICHOLS:  Okay, thanks, Scott.
               Any questions?
               MR. NIEWIADOMSKI:  Yes.  Can I ask you a question. 
     I don't mean to put you on the spot, but did I hear you say
     that the current plan process which would allow -- which
     would cause MSHA to or approve a plan based on a minimum of
     60 percent of the average production will protect miners on
     each and every shift?
               MR. BOYLEN:  I am quoting from Skyline's
     operation.  And I, you know, all this is public information. 
     You know, the dust samples I mean all you've got to do is
     type in on the internet and you can tell what every dust
     sample that's come back.  I mean we were looking here
     earlier, the comments come up on the significance of the 480
     minutes.  And that was an earlier conversation today.  
               And a couple of the guys, they've since left, but
     one of the comments was, you know, they were driving home a
     point that how come all the samples are right at 480
     minutes?  Well, if you look, and I would look and see, it's
     public, it's on the internet, that's really not the case.  I
     mean you go in and look and, yes, there's some.  And this
     particular individual was making a comment that of the
     samples taken, no disrespect, but the majority of MSHA
     samples were exactly 480 minutes.  We leafed through a
     couple pages and the numbers that we were looking at varied
     from, you know, 475, 478, 482.  So I think --
               MR. NIEWIADOMSKI:  Well, I'm aware of the samples. 
     What I'm asking you is you indicated that you believe that
     it's an overkill that the current plan verification proposal
     there is no need for going forward with that because the
     current system works.  Didn't you say that?  That the
     current plan --
               MR. BOYLEN:  What I'm saying is, what I am saying
     is with the technological -- with the technology that we are
     applying today it is proven that it works.
               MR. NIEWIADOMSKI:  On what production conditions? 
     I mean we're approving plans based on 60 percent of the
     average.
               MR. BOYLEN:  Yes, sir.
               MR. NIEWIADOMSKI:  Now, during non-sampling
     periods I'm sure you're producing more than 60 percent of
     the average.  Now, that plan, what we're saying is that plan
     in the absence of continuous monitoring, we've always said
     going back to the Task Group, that we believe that the long-
     term solution is continuous monitoring.  In the absence of
     continuous monitoring, which we all would like to have,
     we're going to be relying on well designed plans, okay, that
     are checked on each shift.  We believe that if in fact that
     plan is designed and verified under high production
     conditions we have reasonable assurance it will protect
     people on each and every shift.
               Now, the production requirements being proposed in
     the approval plan is significantly higher than what's
     currently in place.  So I was curious when you had said
     earlier that you felt that the current plan approval process
     is adequate.
               MR. BOYLEN:  I feel it is adequate in respect to
     the sampling mechanism that you have in place is my comment.
               MR. NIEWIADOMSKI:  Thank you.
               MR. KOGUT:  I want to also address one thing you
     said about the data that Skyline submitted in 1998 as part
     of our earlier rulemaking because I think you suggested that
     that data indicated that there was problems or questions
     about the weighing variability.  That Skyline data is
     addressed in Appendix D of the current proposal --
               MR. BOYLEN:  Yes.
               MR. KOGUT:  -- on pages 42117 and 42118.  It
     starts in the last column of 42117.  We did an analysis on
     that data.  And according to our analysis anyway the
     weighing variability that's indicated by that data is
     consistent with the weighing variability that we assumed for
     that period of time.  And it's also less than the weighing
     variability that is incorporated in the formula that
     generates those citation threshold values.
               MR. BOYLEN:  Okay.
               MR. NICHOLS:  Okay, thanks.
               John.
     STATEMENT OF JOHN F. DE BUYS, JR., BURR & FORMAN LLP,
     BIRMINGHAM, ALABAMA
               MR. DE BUYS:  Everybody tired and ready to go
     home?  You know, I feel like the lawyer who is making a
     closing argument on Friday afternoon at 5:00 o'clock.  And I
     have done that before.
               My name is John De Buys and I am a lawyer.  I
     represent a single operator who is -- I'm from Birmingham,
     Alabama, but he is not in the state of Alabama at this time. 
     I've represented coal mining folks but only in the areas of
     zoning and business transactions and leases and contracts
     and all and I am not familiar with the regulatory process or
     these particular rules until I was asked last Wednesday if I
     would come and learn something about this and come to this
     meeting.
               So the approach that you will hear is from someone
     who is relatively or real naive in this area but who has
     pulled this off the internet before I got here and have
     tried to understand it and just know enough to be dangerous. 
     So my comments, and by the way they actually may not, there
     are not going to be as many comments as it is going to be
     questions, but they certainly don't represent the views of
     my client because my client asked me to learn about it and I
     haven't learned enough to talk to him about it to come back
     to give you comments.
               Nevertheless, I will, with that background so you
     know where I'm coming from, I will start and ask a couple
     questions if I might.  I heard just in the last talk about
     side by side monitoring.  Is that an okay thing to do?  And
     will it be an okay thing to do for either I guess a miner's
     representative or the operator to side by side monitor with
     the inspectors and go through when those things are done?  I
     don't know whether that's good, bad, acceptable or not.  Is
     that an okay thing to do?
               MR. NIEWIADOMSKI:  Well, it's okay if an operator
     wants to take a sample alongside of an MSHA sample as long
     as it doesn't interfere with the MSHA sample.  If the miner
     decides he doesn't want to sample it he's going to let MSHA
     sample.  Okay.  But the operator's not, he's not forbidden
     from doing any sampling on his own.
               MR. DE BUYS:  Well, that's not going to make
     anybody mad for him to do that if he so chooses to do that I
     don't guess.
               MR. NIEWIADOMSKI:  No.
               MR. DE BUYS:  Okay.
               MR. HEWETT:  It's worth pointing out though that
     you have two measurements.  And because the sampling and
     analytical variability with any measurement system you will
     get most often two different answers.
               MR. DE BUYS:  Sure.
               MR. HEWETT:  Now, the gentleman earlier mentioned
     the Skyline data.  Skyline submitted 381 pairs of data.  One
     measurement was sent to MSHA or the MSHA lab.  The other
     measurement was sent to their own lab, okay.  In 95 percent
     of the cases, 95 percent of the pairs the numbers were
     different but they agreed.  That is, both of them were under
     the limit or both of them were over the limit 95 percent of
     the time.  5 percent of the time one was over, the other was
     under.  And then we could split that difference between one
     was in favor of the mine, the operator, one favored MSHA so
     to speak.
               So, in really 2.5 percent of the time was there
     any, would there be any real question.  So you're going to
     get two different numbers but more pointedly exposures were
     out of compliance or exposures were in compliance.
               MR. DE BUYS:  Sure.  And I realize any time you
     take a sample of something you're going to have some
     variation but if they're close I'm sure that's all somebody
     would be looking for, at least I would think.
               Okay, under the new proposal as opposed to the way
     it exists now I in reading this I tried to find out exactly
     what are the responsibilities of the mine operator.  And I'm
     finding that other than obviously the proposing the plan is
     they've got to record the material that's been mined on a
     continuous basis and keep the record for six months.  And
     I'm sure that's self-explanatory.
               Then they have a duty of inspecting each of the
     controls prior to every shift being initiated on a daily
     basis therefore. 
               And then I've heard a couple of instances, and
     I'll go back and read it, about posting information, they
     have a duty to post information on the board.  And there are
     certain things that I can go pick out as far as trying to go
     through it again and figure that out.
               Is there anything else as far as requirements
     since they are not -- since they don't have any more
     monitoring requirements?
               MR. SCHELL:  Yeah, if you look in the plan
     verification part of the rule there is a question in there
     about What is the responsibility of the operator during plan
     verification?  And there are two or three responsibilities
     listed there, including is, you know, submitting the plan
     and being prepared to have the plan verified.
               MR. DE BUYS:  Right.  That's why my preamble was
     other than, you know, the creation of the original plan
     there was there anything on an ongoing basis that you needed
     to do.  And I had read that and I was just trying to see if
     there was anything else that I missed or you all obviously,
     whoever had to proofread this thing is very familiar with
     all of it.  Okay.
               All right.  As far as a DA, which I understand is
     as designated area, and the DO, which is a designated
     occupation, it seems to me is the proposal leaves some
     flexibility as to where these were being set up, located or
     ascertained.  Is that basically a fair statement?  The DO as
     I understand you said if you've got five or more, and if
     there are less than 5 people there you can -- up to five or
     as many as you can.  But as far as the DA is there
     flexibility there or is that a judgment call or is that
     something that's defined?
               MR. NIEWIADOMSKI:  There is no change in the
     immediate requirements as far as those criteria guidelines
     that were developed back in 1982 when those regulations were
     promulgated that guide the operator in identifying
     designated areas.  And then the District Manager will review
     to see whether or not that complies with its guidance.
               For example, I think that talked about every flow
     transfer point there should be a DA established.  Okay.  So
     that has not changed at all, okay, the guidelines.  The
     other thing is this, what hasn't changed is that MSHA when
     we go out and sample, in addition mind you right now we're
     proposing, which we currently do, sample every designated
     area outby annually.  Part of that is that's an established
     entity, okay.  But also we sample other locations that the
     inspector anticipates or thinks that may be high generating
     sources.  And they also may become designated areas, okay.
               MR. DE BUYS:  So they can be added, too?
               MR. NIEWIADOMSKI:  Yes, sir.  That's right.  Which
     is certainly consistent with our existing procedures.
               Now, the DO, the DO is defined in, it's defined in
     the current regs, it's defined in the proposal.  The only
     change that we're recommending is that during plan
     verification when we determine that the operator has
     exhausted all feasible engineering controls on longwalls we
     would shift the DO from the 060 to the 044, to the machine
     operator.
               MR. DE BUYS:  Okay.  I noted that on page 42139,
     without necessarily turning to it -- well, let me do it
     anyway.  In talking about the VPL the proposed rule would
     require mine operators, and it has three things it says.  On
     the third, provide additional information and mine
     ventilation plans.  Is that something that a miner or mine
     operator would know what that is or is that --
               MR. NIEWIADOMSKI:  Yes.  It's defined under, when
     you look under Part 75 there is additional information that
     he has to provide to the District Manager which he currently
     doesn't.  One of them is the length of the shift.  Okay. 
     Also he has to identify exactly how the mining cycle, how he
     intends to protect roof bolters and outbys and things like
     that.  So there are some specific additional information
     beyond what is currently being required.
               MR. DE BUYS:  But there are criterial categories
     or areas that are already set that you know that you're
     going to have to supply that information?
               MR. REYNOLDS:  It's on 42102 in the second and
     third column if you want to put it in your notes.
               MR. DE BUYS:  42102.  All right, let me put that
     down and I'll go look at it.  Thank you.
               Does the court measurement other than MSHA is
     going to perform the test, you're going to the tenth, as
     opposed to the percentage your going to a one-tenth of 1
     percent, is there any other change as far as the method of
     testing or the way that you analyze compared to what's been
     done for those two?  For the record, there's a nod over
     there.
               MR. REYNOLDS:  No.  No, the changes make it very
     clear that MSHA does the sampling for that.
               MR. DE BUYS:  Okay.
               MR. NIEWIADOMSKI:  But I think we need to clarify
     that currently they're doing, determining whether or not an
     operator is in or out based on that criteria.  Okay.  And
     based on our samples too.  Under this proposal we would do
     that based on a single sample.
               MR. DE BUYS:  Right.  right.
               Okay, next question is, in reading this, and I
     guess this is the lawyer in me, is what about including a
     section on special exceptions, and I've heard this today,
     where people say, well, in a site, in a site specific type
     area can you, for example, or should you be allowed to
     control dust exposure by administrative procedure?  And I
     know that there'd be a lot of opposition there.  But that's
     just one example.  By respiratory equipment's another.  And
     we talked about that.  And or a situation where in the
     future when you develop a technology that you can have a
     prototypical plan set up where you can use this, these
     control readouts and various compliance procedures.  If
     there was a section that did allow for special exceptions,
     then within what you all are proposing to do there as soon
     as the technology comes about then it would be consistent
     with your proposed rule to set up in this special section
     some kind of a special plan that would be approved by MSHA
     where these new ideas could be utilized without kind of
     going out on a limb.
               Now, there may be something built into the
     proposal that allows you that leeway.  But it didn't seem to
     me to be such a special area of some kind of an exception or
     special circumstances.
               MR. NIEWIADOMSKI:  You're talking about having
     some sort of a section in there that would allow us to
     automatically adopt new technology without going through a
     rulemaking?
               MR. DE BUYS:  Well, that would allow you to
     consider it.  In other words, you're supposed to operate
     under a certain procedure right now, okay.  And suppose you
     wanted to take one operator, you wanted to make this a
     prototypical type thing.  And suppose it would be for, you
     know, it may be for administrative procedures under certain
     circumstances.  It may be under respiratory type attention
     or it may be under new monitoring devices with new
     technology with like one person answered, well, with the new
     technology you all asked the question how would you set
     certain parameters?  And he said, I hadn't gotten to that
     yet.  But if somebody does come up with that should there be
     an area where you could come and say, hey, look, I've got
     this plan, would you all consider this as a special
     exceptional circumstance? 
               And then you all would look and say this mine
     operator has always been in compliance, it's been this, he's
     got a special circumstance, we'll work with him or not. 
     Should that be in there?
               MR. SCHELL:  It's not in there now.  If you're
     asking us to consider it, you know, your comments are made
     on the record.
               MR. DE BUYS:  Okay.  Please consider that.  Just
     again from a lawyer's standpoint you've got a static
     document that doesn't mold too well in some areas.
               I guess along that same line and before I heard
     some of the comments that may object to it is I would think
     that an operator would object to having the lack of ability
     if you're on a continuous mining type operation as opposed
     to longwall to come under a circumstance where the
     respiratory equipment could be applied.  And, also, nobody
     mentions the administrative controls, and I understand
     probably why they don't now.  But that's, again, it seems
     like you could put that into the process if you were, you
     know, trying to protect somebody's exposure to excessive
     dust.
               Okay.  Next, with regard to the 480 minutes that
     will be used on compliance sampling, does that probably
     would you predict that that would probably be used during
     the worst case scenario?  In other words when the inspector
     came in, it's a 10 hour shift and you've got 30 minute
     travel time you'd figure that he'd probably go first, you
     know, look at the worst case scenario.  Would that be, I
     don't think it's said, but would that be kind of logical?
               MR. SCHELL:  Yeah.  Our desire would be to do the
     sampling where we would envision that most dust would be
     generated.
               MR. DE BUYS:  Well, I just wanted to be able to
     advise that one.  Probably something to look forward to.
               And this is real ignorance on my part.  How do you
     handle the situation on a continuous miner if there is both
     a deck and a remote and sometimes the operator is sitting on
     a deck and sometimes he's using a remote, I mean he's got a
     piece of equipment on?  Is there anything that addresses
     that?
               MR. NIEWIADOMSKI:  Well, you mean as far as work
     sampling?
               MR. DE BUYS:  Yes, sir.
               MR. NIEWIADOMSKI:  The sampler stays with the
     occupation.  So if you're in a remote location and the
     District Manager says that that's the DO it stays with the
     occupation.  Okay?  It doesn't stay on the deck when he
     moves off that deck because then you're not sampling the
     environment the miner works in.
               In other cases it could be another DO that the
     District Manager determines is exposed to the highest dust
     levels.
               MR. NICHOLS:  But the sampler would stay with the
     employee; right?
               MR. NIEWIADOMSKI:  Yeah, in that particular case. 
     Yes.
               MR. NICHOLS:  Yeah.
               MR. NIEWIADOMSKI:  We're talking about an
     occupation, it stays with that person.
               MR. DE BUYS:  Right.
               MR. NICHOLS:  Yeah.
               MR. DE BUYS:  So that could vary.  I mean whether
     or not he decides to ride up on the deck or ride back
     further that's going to vary according to the operator?
               MR. NIEWIADOMSKI:  Yeah.  Currently it's within 36
     inches in-by that person, okay, whoever's operating that.
               MR. DE BUYS:  Okay.
               MR. NIEWIADOMSKI:  Now, what's kind of important
     if they switch out people the sampler doesn't go with the
     person they started out with, okay.  The sampler would
     switch out to the miner that replaced the miner of the
     section.
               MR. DE BUYS:  Okay.  All right, with regard to
     your initial plan and verification of that plan, as I
     understand it if you got a substantial change in production
     you're going to have to submit for a new plan and
     reverification.  Is there any flexibility built in to where
     if you know that a mine is currently, say, mining 20,000
     tons a month and you know they're going up to 50,000 tons a
     month is there any way to set up a situation where that
     could be accounted for without, or suppose you know that
     you've got various production levels that go up and down
     continually, could you set up different parameters so that
     that would cover those unusual conditions?
               MR. SCHELL:  Well, the proposal is to verify it at
     the 10th highest production of the last 30 production
     shifts.
               MR. DE BUYS:  And suppose that is actually over a
     period of time after you collect the data is something that
     moves?  For example, an operator is mining 20 and goes up
     to, wants to go up to 30, and that gets him into the next
     level, and yet he may want -- I guess if he drops down he's
     certainly going to be in compliance later on, wouldn't he?
               MR. SCHELL:  Uh-huh.
               MR. DE BUYS:  Okay.  So maybe, perhaps that will
     take care of itself.  I'm just wondering about the cost
     which I understand you all are figuring is the initial cost
     of setting up those plans is.
               MR. NIEWIADOMSKI:  Well, if an operator is going
     to increase production significantly I'm sure we'll
     probably, and he'll want the plan to be verified under
     higher production levels once he submits that modification. 
     Okay.  And we determine that the controls probably will be
     effective we will again verify that plan.  He can initiate
     it or we will initiate it based on the new data.
               MR. DE BUYS:  I was thinking about that and also
     where someone said there were so many different mining
     conditions where the longwall went from 4 feet up to 10 or
     12 feet in various conditions.  Is there a way to have any
     flexibility in that mining plan that would say, well, if
     you're in these conditions, then that, but if in these
     conditions, then the other?  Probably not the way it's
     written I don't think.
               MR. SCHELL:  No, the plan can be tailored to the
     mine.
               MR. DE BUYS:  So you could have that?
               MR. SCHELL:  So if you ran into a middle man at a
     certain part of your mining you could have a provision that
     clicked in when you ran into that problem.
               MR. DE BUYS:  So it is flexible enough in the plan
     --
               MR. SCHELL:  Yes.
               MR. DE BUYS:  -- so you could put certain?  Good. 
     Okay.
               All right.  I think that I will conclude with
     that.  I do want to while I was sitting back there, since
     everybody wants to go home, I wrote this down.
               If a single miner mines on a single shift and a
     sample was secured for the full single shift the sample so
     secured should from said full single miner's single shift --
     let's see, I can't read my writing -- satisfy the
     requirements of the single full shift sample under the
     proposed rule.  But supporters of several single full shift
     samples cite situations -- cite sinister conduct -- I'm
     sorry -- therefore, said supporters of said single full
     shift samples send someone sounding sorely against singly
     sampling single full shift sampling.
               MR. NICHOLS:  I was not going to ask you who your
     client was until you came out with that.
               (Laughter.)
               MR. DE BUYS:  Well, I don't mind.  It's Sunrise
     Coal.
               MR. NICHOLS:  Okay.
               MR. DE BUYS:  It's just started up.  You know,
     it's right now trying to right other wrongs.
               MR. NICHOLS:  Okay.
               MR. DE BUYS:  So thank you for your time.
               MR. NICHOLS:  Thank you, John.
               Tom, you will be up first in the morning.  What
     time do you want to start?
               MR. WILSON:  8:30.
               MR. NICHOLS:  8:30.  Okay, see you at 8:30 in the
     morning.
               (Whereupon, at 6:44 p.m., the hearing was
     recessed, to reconvene at 8:30 a.m., Thursday, August 17,
     2000.)
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                             REPORTER'S CERTIFICATE
     
     DOCKET NO.:    N/A
     CASE TITLE:    30 CFR Part 72
     HEARING DATE:  August 16, 2000
     LOCATION:      Salt Lake City, UT  
     
           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, Mine Safety and Health
     Administration.
     
     
                                   Date:  August 21, 2000
     
                                   Raymond Vetter       
                                   Official Reporter
                                   Heritage Reporting Corporation
                                   Suite 600
                                   1220 L Street, N. W.
                                   Washington, D. C.  20005-4018