PUBLIC HEARINGS 
   DETERMINATION OF CONCENTRATION OF RESPIRABLE COAL MINE DUST
        MSHA AND NIOSH JOINT SINGLE SAMPLE PROPOSED RULE 
                 AND MSHA PLAN VERIFICATION RULE
                      Monday, August 7, 2000
                    Morgantown, West Virginia

APPEARANCES:

MARVIN NICHOLS, Administrator, Coal Mine Health & Safety
LARRY REYNOLDS, Office of the Solicitor
RONALD SCHELL, MSHA, Chief, Coal Health Division
CAROL JONES, 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
PAUL HEWETT, NIOSH,Industrial Hygienist
EILENN KUEMPEL, NIOSH, Senior Physical Scientist
JON KOGUT, Mathematical Statistician, 
     Office of Program Policy Evaluation
REBECCA ROPER, Senior Health Scientist
RON FORD, Economist, Office of Standards, 
     Regulations and Variances
RODNEY BROWN, MSHA, Office of Information and Public Affairs                       P R O C E E D I N G S
                                                     (8:30 a.m.)
                 MR. NICHOLS:  Good morning, my name is Marvin
   Nichols and I am the Administrator for Coal Mine Safety and
   Health, and I will be the moderator for today's public
   hearings.   On behalf of Davitt McAteer, the Assistant
   Secretary for Mine Safety and Health, and Dr. Linda
   Rosenstock, Director of the National Institute for
   Occupational Safety and Health, I want to welcome all of you
   here today.
                 This morning, during the first of the two public
   hearings we are holding here today, we want to address the
   MSHA and NIOSH joint single sample proposed rule, which was
   published in the Federal Register on July the 7th, along
   with MSHA's Plan Verification rule.  After lunch, we intend
   to convene the second hearing, which will focus on the plan
   verification rule.   However, if you have comments this
   morning which are relevant to the plan verification
   proposal, we will include them in that record as well.
                 Because we will be discussing the MSHA/NIOSH
   joint proposed rule this morning, representatives from NIOSH
   will serve on our panel.  Let me introduce the panel I have
   up here with me.  To my left is Ron Schell, Chief of our
   Coal Mine Safety and Health Division of Health; on my right
   is Larry Reynolds from the Office of the Solicitor.
                 And behind us, we have our technical experts
   from NIOSH, Paul Hewett and Eileen Kuempel; and from MSHA,
   Carol Jones, the Director 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 and Evaluation; Rebecca Roper, Senior Health
   Scientist, and Ron Ford, Economist, from the Office of
   Standards, Regulations, and Variances.  And Rodney Brown
   from MSHA's Office of Information and Public Affairs is also
   present at this hearing, and Rodney will provide press kits
   for the media in attendance and will be available to answer
   any press questions.  Rodney is back at the table. 
                 The formal rules of evidence do not apply, and
   the hearing is conducted in an informal manner.  Those of
   you who have notified MSHA in advance will be allowed to
   make your presentations first.  Following these
   presentations, others who request an opportunity to speak
   will be allowed up to 20 minutes to do so, and if necessary,
   we can extend that time to give all interested parties an
   opportunity to present testimony.  I would ask that all the
   questions regarding these rules be made on the public record
   and that you refrain from asking the panel members questions
   when we are not in session, because we want all the
   discussion on the rule in the session on the record. 
                 A verbatim transcript of this hearing is being
   taken and it will be made available as part of the official
   record.  Please submit any overheads, slides, tapes, and
   copies of your presentations to me so that these items may
   be made part of the record. The hearing transcript, along
   with all of the 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.
                 We will also accept additional written comments
   and other appropriate data on the proposed rules from any
   interested party, including those who have not presented
   oral statements today. These written comments may be
   submitted to me during the course of this hearing or sent to
   the address listed in the hearing notice. All written
   comments and data submitted to MSHA will be included in the
   official record. If you wish to present any written
   statements or information for the record today, please
   clearly identify them.  When you give them to me, I will
   identify them by title as being submitted for the record. An
   attendance sheet will also be circulating in the room today
   so that you may register your presence.
                 To allow for the submission of posthearing
   comments and data, the record will remain open until
   September 8, 2000.  As you know, we have scheduled two
   additional public hearings to specifically address the
   single, full-shift sample proposal. They will be in
   Prestonsburg, Kentucky, on August the 10th from 8:30 a.m.
   till 12:00 noon and in Salt Lake City, Utah, on August the
   16th from 8:30 until noon.  The hearings for the plan
   verification proposal will follow in the afternoon on the
   same days and at the same locations.
                 Before we begin, let me give you some background
   on the proposal we are addressing this morning.  This is a
   joint proposal.  In it, the Secretary of Labor and the
   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 addresses the
   final decision and order in the National Mining Association
   v. Secretary of Labor, issued by the United States Court of
   Appeals for the 11th Circuit on September the 4th, 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 when the
   applicable respirable dust standard was exceeded.
                 As I said before, we're here this morning while
   the representatives of NIOSH are able to join us to hear
   your comments about the single sample proposal.  Also, as I
   said earlier, if there are comments which are relevant to
   the plan verification proposal we have scheduled for
   discussion this afternoon, we will include them in the rule-
   rule-making for both proposals.
                 As most of you know, the single sample issue has
   been through a long public process, which is outlined in the
   preamble of the proposal. That process ended with a
   September 4, 1998 ruling by the United States Court of
   Appeals for the 11th Circuit. The Court of Appeals 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 CFR Part 72.  The 1972 joint notice of
   finding would be rescinded and a new finding would be made
   that a single, full-shift measurement will accurately
   represent atmospheric conditions to which a miner is exposed
   during such shift. This finding is the basis for the new
   proposed mandatory health standard.
                 Let me now give you a brief description of the
   1972 notice of finding that MSHA and NIOSH are proposing to
   rescind.  In 1972, a notice of finding under Section 202(f)
   of the Federal Coal Mine Safety and Health Act of 1969 was
   published by the Secretaries of Interior and Health,
   Education, and Welfare. In that finding, the Secretaries
   concluded that a single shift measurement will not
   accurately represent the atmospheric conditions to which the
   miner is continuously exposed. MSHA and NIOSH have concluded
   that the statistical analysis and the finding itself were
   not germane to the congressional intent as stated in Section
   202(f) of the 1969 Coal Act and its successor, the Federal
   Mine Safety and Health Act of 1977.
                 On examination, it can be seen that the
   conclusion reached in the notice is not consistent with the
   title of the notice. Specifically, the title of the proposed
   and final notices published in 1971 and 1972 refer to the
   accuracy of single shift measurements taken "during such
   shift."
                 The conclusion reached in the final notice
   issued in 1972 refers to the accuracy of such measurements
   to which the miner "is continuously exposed."  Section
   202(f) specifies a finding focused on the atmospheric
   conditions of such shift, not the atmospheric conditions
   during which the miner is continuously exposed. The analysis
   did not address the accuracy of a single, full-shift
   measurement in representing atmospheric conditions during
   the shift on which it was taken. For this and other reasons,
   such as advancements in technology set forth in the
   proposal, the Secretaries are proposing to rescind the 1972
   final joint finding.
                 This proposal, like the previous final finding
   vacated by the Court of Appeals, addresses MSHA's ability to
   accurately measure in a single sample the concentration of
   respirable dust to which a miner is exposed during a single
   shift.  Accordingly, a new mandatory standard would be added
   to Part 72 of 30 CFR, which would allow MSHA to use a
   single, full-shift measurement of respirable coal mine dust
   to determine average concentration on a shift if that
   measurement accurately represents atmospheric conditions to
   which a miner is exposed during such shift.
                 MSHA believes that single 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 years by
   OSHA and at metal and nonmetal 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 single, full-shift samples at
   your mine during that time period.
                 Additionally, because the proposal would be
   implemented as a mandatory health standard, all elements of
   Section 101(a)(6)(A) of the Mine Act have been addressed in
   this proposal. These include the portions of the proposal
   which address health effects, develop a quantitative risk
   assessment, and the significance of risk.  We are here today
   seeking your comments on this proposal.
                 At this time, we will consider any evidence or
   discussion on any aspect of the proposed rule. As I stated
   earlier we will begin with those who have requested in
   advance an opportunity to speak.  Following their
   presentations, anyone who did not request an opportunity to
   speak in advance will be allotted time. To ensure we obtain
   an accurate record when you speak, please come to the podium
   or the table and begin by clearly stating your name and
   organization.  The seating is limited so could -- do we have
   people outside trying to get in?  Are we okay?  We're okay. 
   Okay, our first speaker today, our presenter is Joe Main
   with the United Mine Workers of America. 
                 MR. MAIN:  Good morning.  Some points of
   clarification.  My name is Joseph Main, with the United Mine
   Workers of America, and I'd like to do a little bit of
   cleanup before I get started this morning just to reaffirm
   the discussion today.  On two past occasions, I have talked
   to folks from MSHA to let them know that the folks that's
   here today are going to be talking about the rules in total
   as they do their presentations.  And I think you can
   picture, there's a lot of miners here today that's got work
   to get back to, and they need to have that opportunity and I
   understand --
                 UNIDENTIFIED SPEAKER:  Can't hear you, Joe. 
                 MR. MAIN:  I understand that's the procedure
   we're going to use, which works out for that.  Also, in
   terms of the record, we're going to be submitting several
   documents throughout the course of the public hearings. 
   We've already put in the record by reference the Federal
   Advisory Committee report of 1996 and the full file on the
   lawsuit filed by the UMWA regarding the implementation of
   reforms.  And if there's a problem with the referencing of
   those materials, let us know and we'll provide you with the
   volume of information.  But that's already on the record at
   MSHA. 
                 And like I say, there'll be several other
   documents that will be submitted in the record over the
   course of the public hearings.  I think it's safe to say, at
   least from our perspective, that this rule probably will not
   be finalized by the current administration.  And that's in
   light of the fact that the rule-making process and the
   length of time it takes to get a rule through, it would
   basically take a superhuman being to pull that event off. 
   And we've had several rules that's been in the hopper for
   three, four years at the quickest time frame for a rule to
   be finalized.  So, having said that, there is serious doubt
   in our minds that the proposals as laid out there on the
   table will be finalized by the current administration, and
   we would fully expect any action to take place after the
   next administration takes power in the country.  And as we
   all know, when there is a shift in power in the country,
   there are different philosophies that are applied and
   different decisions that are made.  
                 And I'll take you back to something I must talk
   about here in just a minute, but in 1980, I was part of an
   effort by the miners to do various reforms of the Coal Mine
   Health and Safety standards, one of which was the reform of
   the coal dust program.  And there was a proposal that was
   issued on April 8th, 1980, that would give the miners the
   full participation rights paid by the operator in the dust
   sampling program.  
                 Unfortunately, that proposal was never finalized
   before that administration left town, and the following
   administration made a decision to eliminate that entire
   proposal.  And with those kind of thoughts in mind, we all
   know how the system works, we have some serious reservations
   about what's been laid out here and what the end result may
   well be by individuals who will be no longer maybe around to
   finalize the rule, given the history. 
                 I have also filed a FOIA that has requested
   specific information on the number of mines, the number of
   inspectors, that's very relevant to the rule-making process. 
   As of Friday, when I left, I still haven't received a
   response on part of that FOIA; I did get the information on
   the dust sampling that's been conducted over the last five
   years, but we do need a copy of, or a response to that FOIA
   to gain that information. 
                 Excuse me.  As the head of the Mine Workers
   Health and Safety Department, I have had an opportunity over
   the years to speak to a lot of miners and be heavily
   involved in the discussions on reforming the respirable dust
   -- coal dust program.  I also served as a member of the
   Federal Advisory committee, which was charged by the
   Secretary of Labor to develop proposed standards for MSHA to
   use as a template for reforming the coal mine dust program. 
   That was a charge given to us by the Secretary of Labor. 
   And as I present my testimony, I'll be presenting testimony
   both as a member of the Federal Advisory Committee -- former
   Federal Advisory Committee -- that helped developed those
   standards and, as well, the head of the Safety Department,
   which has the responsibility to represent the interests of
   miners across this country. 
                 Having said those things, I would, I'd like to
   get into the substance of the proposal.  And I think one has
   to understand that all of these proposals are
   interconnected.  The single, full-shift sampling proposal,
   plan verification, and the sampling proposal that's
   connected with the plan verification.  And you have to read
   all of those in connection with each other to really
   understand what the substance of this rule is, because there
   are parts that are applied across the board.  
                 And based on our observations of what this rule
   really does, we wish it was maybe, in one extent, as simple
   as talking about a single sample rule and a plan
   verification, but it's not that simple.  Our review found
   that the proposed rules would eliminate the Mine Operator
   Dust Sampling program and all operator dust sampling
   responsibilities.  It would eliminate the procedures for
   dust sampling of miners and areas of the mine, including the
   frequency and procedures the sampling is to be done.  
                 It would increase the dust exposure compliance
   levels miners may be exposed to.  It would substantially
   reduce dust sampling frequency.  It would allow operators to
   use respiratory protection in lieu of engineering controls. 
   It would establish a plan verification requirement of coal
   mine dust control plans.  It would allow MSHA to use a
   single-shift sampling method with a limited number of
   miners' exposure sampled for the full shift.  
                 It would revise the quartz sampling procedures. 
   It would establish procedures allowing administrative
   controls to be used as an alternative to engineering
   controls for compliance.  It would increase mine operator
   posting of dust plan information, increase miner ventilation
   plan information, revise the Part 90 mining requirements,
   likewise eliminating parts of those.  And the preamble also
   discusses miner participation in sampling, continuous dust
   monitoring, MSHA sampling responsibilities and procedures
   and other things that I haven't addressed, but there's a
   whole lot of things in this package besides the single
   sample issue and plan verification. 
                 And as we started to plow into this proposal, we
   learned very quickly how complicated the rule actually was. 
   And what you had to do was read the entire substance of that
   rule and also evaluate the enormous policy and preamble
   information to figure out the connections to those.  And on
   July 7th, of course, MSHA issued those two rules overhauling
   the program in a very impacting way.  And since that time,
   we've tried to sit down and read it.  The first volume of
   paper we had was, the raw text was 700 pages, and that's
   quite a bit of information to actually go through in a very
   short period of time.  And that was about 30 days ago when
   we first received the package. 
                 I would dare to say there's a lot of miners out
   there that have not even had the opportunity to not only get
   that, but read through that extensive amount of information. 
   And I think that what they're going to find is what they may
   have heard in the press and in the other announcements, that
   the rule is far more expansive than that.  And I think
   that's created a lot of problems and confusion out there,
   what this rule was really about. 
                 And I think it's a responsibility of the agency
   as we go forward to help clear that up, because the
   components that I just outlined in my initial presentation
   are components that we have found to be affected by the
   rule.  The agency has made considerable mention about the
   need to restore confidence and credibility to the program,
   and my fear is after people really learn what this package
   is about, that we may put a damper on that.  And I think I
   can explain that as I go through this whole process. 
                 I would have to first say that following the
   review by the Health and Safety specialists within the Mine
   Workers, which involved Health and Safety representatives,
   my staff in Washington, and safety committees that we went
   out and met with and sent these proposals to, as well as our
   legal department, who has been thoroughly reviewing the
   rules, we came to the basic conclusion that the MSHA
   proposal is fatally flawed, not in the best interests of
   miners in its current form and found to be in need of major
   change. 
                 We also believe that MSHA needs to go back to
   the drawing board and come out with a proposal that reflects
   the kind of things that miners have wanted and needed for
   many, many years and would reflect the findings of the
   Federal Advisory Committee and would reflect the lawsuit
   issues that are involved in the January 13, 2000, filing. 
   While the rules do contain improvements in areas sought by
   the union and by miners, which is improvements on
   single-shift sampling and improvements on plan verification,
   those are unfortunately overshadowed by a lot of the changes
   that have taken place in this rule that will be adverse to
   miners. 
                 And some changes actually, we believe, strip
   away protections that miners currently have by the thrust of
   the rule.  And instead of increasing worker empowerment,
   which has been a key issue of the mine workers and miners
   for many, many years, we fail to see in this rule where it
   accomplishes that.  And actually, we have found by the
   structure of the rule that may even reduce the empowerment
   of workers as the rule is implemented.  And that is a
   serious concern by both miners and mine workers.
                 Many rules was drafted in a way that gives MSHA
   extensive discretion on their application, leaving miners
   without necessary legal procedures to challenge.  And we're
   going to go through a lot of these, starting with this
   hearing today and throughout the hearing course, ending in
   Salt Lake City.  And this fuzzy enforcement, as I call it --
   I try to give it a name -- can differ from the way we look
   at this rule applying from one mine to another, from one
   individual to another and, given the change of philosophy in
   the government that we've been exposed to over the years,
   where there is a greater interest to be a consultant than an
   enforcer -- that has happened in past history -- this rule
   could be very adverse to miners in the way that it's
   actually applied.  
                 I would caution miners to really look at the
   discretionary features of this rule, as we, have and be
   careful not to be lured into a rule structure that really
   does give too much discretion to the government, that takes
   away the decision-making of the miners or the legal licensed
   miners to carry out the implementation of the rules, and
   that's something that we have found, as far as the structure
   of the rule, to be quite concerning. 
                 There are obvious changes needed in the
   proposal.  First, MSHA needs to follow the recommendations
   of the 1996 Federal Advisory Committee the Department of
   Labor created for the very purpose of providing
   recommendations to the government to be used to write the
   rules from.  As a member of that advisory committee, as I
   looked through the proposals and the impact of those
   proposals and went back and refreshed my memory on all the
   recommendations that were developed by the advisory
   committee, I found that, you know, those went in two
   different directions.  In many areas, the proposals and the
   impact of the proposals do not follow the recommendations of
   that Federal Advisory Committee. 
                 Secondly, MSHA needs to implement the reforms
   that the UMWA cited in the January 13th, 2000, lawsuit.  And
   we believe that the MSHA proposal just outright fails to
   effectively do that.  Third, restore the rules that were
   eliminated during the revisions process.  We think it's very
   important to go back and fix those. 
                 And fourth, eliminate those proposals that
   undercut protections and rights that miners have under the
   Act.  And there are proposals that we believe in this rule
   or by its application that will undercut protections and
   rights miners currently have.  I just want to just walk
   through a history of the reform of the dust sampling
   program, because I think it's important for that to be a
   part of the record, and this has been a long path.  I
   remember I started working on reforming the dust program 25
   years ago.  And there's some folks in this room, I don't
   know if they'll give their age away, but I think they were
   with us back in the early days when we launched on a plan,
   or launched a plan, rather, to bring real reform to the coal
   mine sampling dust program.  
                 And there was real reasons for that, because it
   was a program that lacked credibility in the eyes of miners. 
   It was a program that lacked credibility in the eyes of
   government.  And it has been, over the years, a program that
   has lacked credibility in the eyes of the general public for
   a raft of different reasons. 
                 The miners began demanding change to the program
   after it was implemented following the passage of the '69
   Mine Act.  In the early 1970s, government reports were
   starting to come out showing that the dust sampling program
   was flawed, that it lacked credibility.  There was a lot of
   manipulation found, based on government investigations and
   surveys.  And that led to proposals to reform the dust
   sampling program that were launched in 1997 and 1998, of
   which hearings were held across the country like this.  Many
   miners came out, told about the conditions that were
   existing in the nation's mines, about the manipulations
   going on with the dust program, and had a list of reforms
   that they had asked the government to act on. 
                 On April 8th, 1980 -- and I won't, this is the
   quick, down-and-dirty version of all of this -- but on April
   8th, 1980, MSHA issued a proposal, or rather a final rule,
   reforming some of the coal dust mining sampling program, but
   some of the key components raised by the miners that were
   not included in that final rule the government promised
   action on.  The miners had made issues of the operator
   control of the program throughout those public hearings and
   had asked the government to take responsibility.  Miners had
   clearly staked a claim in having a right to be a participant
   in this whole process to make sure it was done right. 
   Miners asked that the government develop continuous
   monitoring devices so that dust they were in could be
   monitored constantly, that miners could actually see what
   the dust levels were on a constant basis in coal mines.  
                 And those things were not taken care of in that
   proposal.  But what the government did also do on April 8th,
   1980, was promise the miners they without address two of
   those issues.  One was miner participation, and the second
   was the development of continuous dust monitors.  And from
   those promises, the miners walked from those hearings
   believing, and from that process, believing that the
   government was going to act to take care of those.  
                 Unfortunately, here we are in the year 2000, and
   neither one of those are in place and neither one of those
   are in this rule, despite what some kind of versions of what
   may be in here.  Those, based on our review, are not in the
   rule.  As the 1980s rolled along and the government backed
   off enforcement of the coal dust standards in this country,
   which I think has been documented, the problem again arose
   to the public attention in the early '90s.  There was
   charges of mine operators conducting fraudulent dust
   sampling.  The famous AWC cases hit the national press.  And
   while the government was focused on that case, miners in the
   union was focused on one that they really knew a lot about,
   and that was what was really going in the sampling process
   in coal mines.  
                 And there was a lot of manipulation going on. 
   And from our viewpoint, a lot of these cases, there was no
   need for the operator to blow the dust off the cassette,
   because they weren't putting it on there to begin with. 
   That was one of the basic problems in terms of the sampling
   process; that miners were being moved around, different
   activities were taking place that would cause the dust
   levels not to be reported accurately to the government.  
                 And following those announcements, there were
   hearings on Capitol Hill, and I believe there was three
   congressional hearings that addressed these issues.  And
   when miners and miners' representatives talked, they talked
   about those real problems at the coal mines that really
   needed a fix.  April 15th, 1991, there was a hearing in
   Congress where these issues was laid out clear as a bell. 
   And on April 17th, two days later, the Secretary of Labor
   announced the formulation of a task force, and that task
   force was charged -- the three primary issues that task
   force was charged with was looking for a government takeover
   of the dust sampling program, increasing miners'
   participation in the dust sampling process, and moving
   forward with developing continuous monitors to continuously
   monitor the dust.  
                 Now, when miners heard the news, again, you
   know, the hopes were raised that we were going to get things
   that miners had wanted for years.  Unfortunately, when the
   smoke cleared and the agency task force issued its report,
   those things was not to be had.  As the story goes, dust
   fraud again makes national attention, and this time with all
   the criminal cases that was being plowed out of the coal
   industry, where mine operators were caught red-handed
   cheating on submitting fraudulent dust samples.  
                 And over the course of, well, actually from 1990
   to date, there have been over 160 individuals or companies
   that have been criminally prosecuted for those activities,
   and some of them were doing things as simple as going into
   the basement of their office, taking a coal bucket, shaking
   the dust up, putting some dust on the sample, and reporting
   that to MSHA as if it came out of the coal mine.  There was
   a raft of issues that happened.
                 So in 1995, as miners pressed for reform again,
   the Secretary of Labor then appointed an advisory committee. 
   And that advisory committee, which I served on, was charged
   with taking a look at this whole dust program, developing a
   reform, a holistic reform to this dust program and reining
   it in.  And we were specifically charged with coming up with
   recommendations for standards to clean up the dust program
   and eradicate pneumoconiosis in the nation's coal mines. 
   And it was important to do that. 
                 Why?  If you look at the current stats from
   NIOSH, there is in the last 10-year period surveyed, 18,245
   deaths in the United States attributed to the black lung
   disease.  That's about, by their current estimates, about
   one miner dying every six hours.  There is corruption that
   has been reported out the wazoo with regard to dust sampling
   dust fraud in coal mines.  And there was a clear need, and I
   could give you a lot of other statistics, but there was a
   clear need to reform this, this program. 
                 So the advisory committee issues its report on
   November of 1996, which is over three years ago, and called
   for basic reforms that included miners' participation, plan
   verification, single full-shift sampling, reducing dust
   levels in coal mines, continuous dust monitoring of the
   dust, and a host of other issues.  That package was not seen
   as take one out or two out and that satisfies reform.  There
   was this holistic approach that was submitted to the
   government for action.  
                 Now, what we saw on the proposal that MSHA has
   is there's been one plucked out here and one plucked out
   here, but differently applied than what the advisory
   committee had even recommended.  On January 13th, 2000,
   after waiting for years, over two decades for reform to take
   place on key issues that miners have raised many, many years
   ago, the union filed a lawsuit to force action.  And four
   things in that lawsuit was that MSHA takeover of the
   operator dust sampling program, increased miner
   participation in the program, continuous monitoring of the
   dust with the continuous monitors we've been talking about
   for two decades, and full-shift sampling of miners to have
   sampling to represent the full exposure that they, that they
   were exposed to.  
                 On July 7th, when we were able to review the
   proposals, we found that the proposal was totally deficient
   when it comes to the advisory committee recommendations and
   totally deficient when it came to the recommendations -- or
   to the issues raised in the lawsuit filed on January 13th of
   2000.  
                 Miners have also contributed to the process in
   many, many ways.  At the public hearings in '78, as part of
   the development of the union's position in 1991 and the task
   force activities, at the 1996 Federal Advisory Committee
   hearings, miners participated extensively in that.  They
   also had discussions with the agency regarding some of the
   proposals that's before the agency today. 
                 And as I read back through those discussions, I
   was again disappointed to find that the recommendations made
   by the miners to the government agency as they were
   preparing this rule were not followed either.  As a matter
   of fact, the miners take some pretty clear and concise
   positions.  Those were rejected, as the rule shows, totally
   out of hand.  Now, during those meetings, which were held at
   the Beckley Academy with safety committees from all over the
   country, MSHA was able to walk through about three
   proposals.  One was on plan verification, one was on
   replacing engineering controls with respiratory protection,
   and the third was on continuous monitors.  
                 And on the issue of plan verification, miners
   raised a lot of specific concerns.  And one was this whole
   idea of having this 15-percent variance on production as
   part of the plan verification process, of which I think the
   record's quite clear that they did not -- they thought that
   was too high, and some other issues that we'll get into
   throughout the course of the hearings and testimony. 
                 They also said, with regard to replacing
   engineering controls with respiratory protection, the
   message that came out of that meeting as I read the notes
   was loud and clear -- "don't do that."  And I think the
   message from the mine workers for the last several years is
   "don't do that."  The message, as I see it, from the
   advisory committee is, "don't do that."  But that's one of
   the provisions that I found in the rule, because it does do
   that. 
                 I'm going to go into more detail throughout some
   of the hearings on some of the other issues that's raised in
   the record -- I'm not going to spend a lot of time on those
   today -- from that July 1998 meeting of which safety
   committees had presented their issues.  On July 24th, 2000,
   the Secretary of Labor filed a motion with the U.S. Court of
   Appeals urging the court to dismiss the UMWA lawsuit, which
   was filed to force MSHA to issue four important regulations
   the union and the miners were urging action on for years. 
   The NMWA lawsuit sought rules which, as I said, would
   require the takeover of the operator sampling program, would
   require continuous dust monitors, increase miner
   participation, and would have miners' exposure sampled
   through their full exposure.  
                 As we read through that filing and saw the
   agency position in that, in their attempt to dismiss a
   lawsuit, that the proposed rule-making process addressed the
   concerns, addressed with more specific standards the UMWA
   seeks in these proceedings.  In other words, we've addressed
   it in the rule-making.  There must be rules there somewhere
   that affects those.  Therefore, courts dismiss the case. 
                 And we have filed motions Friday, as I was
   leaving town, to dispute those findings, but I think it's a
   fair question that we need to ask at this time, not only
   with regard to the lawsuit, and given the fact that the
   agency has said that these are addressed in this rule-making
   and given what's been put out for the public consumption,
   that miners, I think, do think that -- who haven't read the
   rule -- that there is an MSHA takeover of the operator
   program.  
                 I think there is confusion.  Miners think they
   have these increased rights under the rules.  I think there
   is this confusion over what continuous monitoring is.  And I
   think there is confusion that miners believe that they will
   be sampled on their compliance sampling for the full shift. 
   And we find none of those in the rules.  
                 And what I would ask, at this point is to
   clarify this.  Where exactly in the proposed rule can we
   find those four specific issues?  And if you cite the
   standard specifically, that would help clear the air. 
                 MR. SCHELL:  Joe, are you asking us to interrupt
   your testimony?  
                 MR. MAIN:  Yeah, at this time, and I think it's,
   because I think there's so much confusion on this with what
   the agencies have said in the legal arena and what's been in
   the press and what's in these rules.  If the agency could
   just point to the specific rule each one of these issues are
   contained in. 
                 MR. SCHELL:  And repeat your four issues again,
   Joe, just so I make sure --
                 MR. MAIN:  The MSHA takeover of the operator
   sampling program, if you could cite the specific rule where
   that exists. 
                 MR. SCHELL:  Okay.  What's the second, third,
   and fourth?  
                 MR. MAIN:  If you want to go, we can go through
   them one at a time. 
                 MR. SCHELL:  Could I get the four of them,
   because maybe I can. 
                 MR. MAIN:  Well, if you could just answer them
   as we go. 
                 MR. SCHELL:  Okay.  Well, I don't have the --
   excuse me a minute, Joe -- I'm going to have to wrestle with
   this thing -- I don't have the document in front of me and I
   would ask staff to try to identify the specific paragraph
   and will give that to you.  I can tell you the takeover of
   MSHA sampling -- that references the reliance of the agency
   on compliance sampling by operators.  And this proposal does
   eliminate all reliance on operator sampling for compliance
   purposes.  That includes verification sampling.  That
   includes compliance sampling.  That includes abatement
   sampling.  That includes sampling to establish the reduced
   quartz standard.  And that includes sampling to ensure that
   the Part 90 miners working in a low-dust environment. 
                 And I will ask staff to identify specifically
   what page that's listed on in the document for you. 
                 MR. MAIN:  But what my specific point, Ron, is
   where in the rule can a miner point to that shows that there
   is this MSHA takeover of the operator sampling program?  
                 MR. SCHELL:  And I would say that that portion
   of the rule that eliminates the requirement for operator
   sampling, that eliminates our reliance on operator sampling
   for compliance purposes.  In the preamble, we have stated
   that we will conduct bimonthly sampling for compliance. 
   There is a provision in the rule itself that specifically
   states that MSHA will do the verification sampling, and in
   the preamble it indicates that we will do the abatement
   sampling and the Part 90 sampling.  
                 If you're looking for something in the rule,
   Joe, you won't find it.  The rule is written to govern the
   conduct of the operator.  The rule isn't written to govern
   MSHA's conduct.  What we have said in the preamble is that
   MSHA will develop a written policy that will outline
   specifically how MSHA will conduct that sampling.
                 MR. MAIN:  Your answer is pretty consistent with
   what our finding is.  We found no provision in the rule that
   has an MSHA takeover of the operator sampling program.  It
   has been reduced to a policy intent of the agency, which, as
   we view it, is not legally enforceable and can be changed
   with policy decisions and could be directly affected with
   funding cuts down the road when Congress decides to cut back
   on the funding of the agency.  But there is, we found no
   proposal that accomplished a rule that miners could rely on
   that did that. 
                 MR. SCHELL:  Joe, to a large extent that is true
   that there was no discussion of MSHA sampling in the rule
   except for the verification sampling.  You are correct.  The
   other parts of it are outlined in the preamble where MSHA
   says it will develop a policy. 
                 MR. MAIN:  I think it's important for the miners
   to know that, and I would encourage the agency to get that
   message out, because we have encountered different people
   who think that there's actually a rule here that MSHA has
   taken over the program.  And there is this misunderstanding
   about what policy is and how weak that is in terms of, I
   mean as compared to a rule, that it provides no guarantee
   for miners.  
                 MR. NICHOLS:  Is it your point, Joe, that it
   should be included in the rule?
                 MR. MAIN:  Well, I think my points are going to
   be made in terms of three things.  One is that the Federal
   Advisory Committee laid out a very clear script for what
   they believe should take -- should be implemented whenever
   there's a takeover, and we believe that that script that's
   contained in those regulations are followed.  The second
   thing is that as I went through the rule and found all of
   these standards that miners can now point to know when,
   what, where they could expect to have sampling, those
   provisions had been totally eliminated.  And I think that
   miners should be very wary of trading a standard by which
   they can see for one that may be neutered to its bitter end,
   because it's not even a standard and there's no guarantee,
   Marvin.  
                 And I think the funding issue, which was
   recognized by the advisory committee, as the agency may lose
   money, is a critical issue here that should have been
   addressed by the proposed rule.  There was a lot of time
   spent on that.  But we'll have some more specific
   recommendations.  But as it now stands, I think this is a
   bad proposal in its current form.  And legally, our lawyers
   have looked at it and said that there's no legal standing
   for miners to expect those as guarantees.  And I'll get into
   the other effects of that in just a second.  
                 With regard to the miners' participation, in the
   specific rule is there increased miner participation rights
   that we have missed that's in the proposed rule?  
                 MR. SCHELL:  Yes, Joe, in this sense.  That the
   -- MSHA will be conducting verification sampling.  Miners
   will be entitled to 103(f) rights when we conduct that
   sampling.  MSHA will be conducting compliance sampling. 
   Miners will be entitled to 103(f) rights when we do that. 
   MSHA will be conducting abatement sampling.  Miners will be
   entitled to 103(f) rights when they're doing that.  In the
   past, they clearly haven't been entitled to 103(f) rights
   when we did abatement sampling because, as you know, that
   was done by the operator. 
                 There is no place in the rule where that is
   mentioned, because the agency's position is that that's
   already in the statute under 103(f) and the statute has more
   influence than the regs.  So what we're saying is we have
   interpreted 103(f) to include the right of a miner to
   participate anytime MSHA conducts sampling. 
                 MR. MAIN:  And to that end, it's safe to say
   that the inspection activities other than the abatement
   sample has been rights that the miners have had since '77 as
   far as inspection rights, as far as compliance sampling
   goes. 
                 MR. SCHELL:  As far as compliance sampling. 
                 MR. MAIN:  Okay. 
                 MR. SCHELL:  Abatement sampling, as you know, we
   haven't done it the way we're proposing to do it in this
   rule. 
                 MR. MAIN:  Well, and it would be attached to the
   103(f) walk-around.  The plan verification right that you
   mentioned, it is clear that the industry is on the record to
   challenge that.  They made it quite clear at the advisory
   committee and they issued a dissenting opinion that made
   note that they didn't believe that the 103(f) walk-around
   rights would be applied to a pre-noticed inspection, of
   which the plan verification is a pre-noticed inspection by
   its design.  
                 And knowing that MSHA does include provisions
   all the time out of the statute into the regulations, that
   having not put that there and stood the test of time to be a
   valid rule leaves that back at a lesser legal standard.  And
   I'd just remind you to look at some of the discussions that
   was in the record on plan verification -- or on the single
   sample policies that was, and actions that was taking place
   there that were forced to go through at the end of the day
   through the rule-making process, that, as we seen it, when
   we looked at the rule itself, there is no miner
   participation rights included in that rule that guarantees
   the miner any rights beyond what they have currently under
   rule 103(f).  And the one right that the agency is claiming
   with regard to plan verification is not tied up in a legally
   sound way that would be more protective.  
                 With regard to continuous dust monitors, we
   found no proposal, or proposed rule that would require
   continuous dust monitors. 
                 MR. SCHELL:  That is correct, Joe.  We clearly
   asked for comments on continuous monitors.  Right now, the
   position of the agency is the technology doesn't exist to be
   able to write that rule.  But we all would be -- I think,
   industry, labor, and government have all expressed a
   preference to go to continuous monitoring.  Right now, we
   don't see the technology there to be able to write a rule to
   require it. 
                 MR. MAIN:  This is an issue of which I'm not
   going to spend a lot of time on today, but I will at one
   future hearing, since I've been so heavily involved in this. 
   I totally disagree with that.  I think the agency, after 20
   years of work, are at the finish line where they're in a
   position to write a rule.  If they're ever going to require
   it in mines, they got to get a rule, they've done enough
   work to get a position there that those devices can
   technically work.  
                 And having promised the miners that 20 years ago
   and standing here in the year 2000 and saying from the
   agency, well, one of these days we may get there,
   particularly after testing was abandoned last year, which is
   another discussion we'll have later, I think is just, it's
   the kind of things that undercut the credibility of the
   government, to get that close and then make a decision not
   to do that.
                 MR. NICHOLS:  Are you saying the technology is
   there now?  
                 MR. MAIN:  I'm saying that given the framework
   of the Mine Act, given the technological development of
   continuous monitors, that the agency is in a clear position
   to issue a standard requiring the use of continuous dust
   monitors in coal mines, yes. 
                 MR. SCHELL:  Well, those are the kind of
   comments that we're soliciting in this rule-making, Joe. 
                 MR. MAIN:  And I was disappointed to see the
   different positions taken by the government as I try to
   figure out where the government's at.  But I think the
   government, really, when you get down to the nuts and bolts,
   has the same line of thinking that I do, at least the papers
   I'm going to be putting in the record and will be talking
   about at some of the other hearings when there's more time
   to do that. 
                 And the fourth issue was the miners' exposure
   for full shifts.  As I look at the compliance dust standard,
   which is, I think, the key that miners are looking at in
   terms of their exposure and controlling their exposure in
   coal mines, versus the method that we have now, and I look
   at the way that's applied, there is no full-shift sampling
   of miners during that compliance dust sampling.  Did I miss
   something there?  
                 MR. SCHELL:  No.  You're correct, but let me put
   it in context, Joe.  One of the concerns that we've had and
   I think that you've had over the years is when we conduct
   compliance sampling, a lot of times that compliance sampling
   isn't representative of what miners see on a day-to-day
   basis.  So that the whole, and you're right when you started
   out saying you really have to look at the rule in total
   context and not just pull out parts of it.  But the major
   concern of the agency and I think of the mine workers is, on
   average, every mine operates about 400 shifts a year.  And
   our goal, and I think everybody's goal, is to ensure that we
   have compliance on every shift, not just on the shifts that
   sampling is conducted.  
                 So the way this rule is structured is -- the way
   we wanted to achieve that is to have mine operators develop
   comprehensive dust plans and then verify those plans with
   only the controls in the plan in place, and verify it at the
   upper limits of production the way the advisory committee
   stated.  And our theory being that if you have a
   well-designed plan that's designed to control the dust with
   the controls that are listed in the plan and at high
   production, you're going to protect miners, especially if
   you add to that the requirement that the operator has to do
   an on-shift to make sure those controls are in place every -
   - before you start production, every shift.  
                 So if you take a good plan, a plan that's
   checked every day, and then if you go out and periodically
   check that plan to see if you have reason to believe it's
   changed and you use single sample enforcement so that you're
   not masking the high exposures with the low exposures, you,
   we believe, will achieve what we're trying to seek.  And
   that's protection for the miners on every shift.  
                 Now, to get to your specific question, Joe, in
   this proposal, we have said that the bimonthly sampling by
   MSHA, we believe, could be conducted for eight hours, and
   that would give us an indication as to whether or not that
   plan continues to protect miners.  Now, that eight hours is
   the eight hours we choose to sample.  It isn't -- currently,
   it's eight hours portal to portal, which means that you
   sample going in, you sample on the shift, and you bring the
   pump out.  
                 We're talking now about 480 minutes.  And MSHA
   will decide when to sample, so we may not sample in and out. 
   We'll sample at the face.  For example, if it's an hour to
   get to the face, eight hours of production, an hour out,
   we'll sample the eight hours that production is occurring. 
   What we have asked for in this proposal -- let me back a
   little bit, one other point.  Verification sampling is full-
   shift sampling.  It is not eight hours in this rule.  
                 Abatement sampling is full-shift sampling.  So
   if the operator goes out, we sample for the full shift to
   go, to bring them back into compliance.  We're saying that
   the bimonthly sampling is eight hours, 480 minutes.  MSHA
   decides when to sample.  We have specifically asked for
   comments from the public on whether the compliance sampling
   should be full shift.  
                 However, right now our belief is that 480
   minutes, with MSHA deciding when they're going to sample
   would be sufficient for us to make a judgment as to whether
   that plan continues to be adequate to protect miners or
   whether that plan should be re-verified. 
                 MR. MAIN:  With regard to the plan verification,
   I think there's some, as I pointed out, there's some
   improvements in that.  There are still some problem areas
   that we're going to be addressing all the way through, and
   the plan -- or the sampling mode, one questions why it's
   used there and not used as part of the compliance sampling
   of coal miners on a normal basis, because the ones that
   they're going to be most involved with in terms of the
   individual monitors and work areas is going to be the
   compliance sampling, and that is 480 minute.
                 And a miner -- and one of the points I made, the
   worker empowerment and this -- there is all these decisions
   made by inspectors in the government, at least all through
   this proposal, that we hopefully before the end of the
   hearing process lay those out, that gives us great trouble
   with all the discretion without miners having a voice, which
   is something that was sought 20 years ago.  
                 I just want to walk through it.  With regard to
   the plan verification in the single sample process and with
   both the improvements and the shortcomings in those, this
   proposal does a lot more than that.  And as I pointed out,
   it eliminates the entire compliance requirements of Part 70
   and Part 90 on dust sampling compliance.  Miners are hostage
   to what the government says that they will do for them, as
   opposed to having a rule, which they currently have. 
                 The proposal dramatically reduces -- and the way
   we figure the calculations, the amount of compliance
   sampling that will take place in coal mines will be reduced
   83 percent as far as the number of shifts sampled, compared
   to both the operator and MSHA sampling today.  And what the
   Federal Advisory Committee recommended was that when the
   MSHA takes over the program,  that there be sufficient
   funding and resources to carry that out, but also at least
   that done by MSHA and the operator.  And I think that far
   undercuts that.
                 For out-by work areas of coal mines, they would
   get one compliance sample a year.  And we think that's
   outrageous by any, any standards.  And I think when the
   miners met with your folks on July 28th, 1998, they raised
   that specific point that the current sampling, which is only
   bimonthly, is far too infrequent for out-by areas of coal
   mines, and now reducing that to one, and none of these are
   legally guaranteed, is a major problem. 
                 The proposal also does some other things with
   regard to the dust exposure in coal mines.  And one of the
   things we had a difficulty figuring out, because there's so
   many different schemes and levels established in this rule
   that has changed the whole landscape, and miners have to
   look carefully at what MSHA's doing as to what the time of
   the sample would be, what the exposure would be.  But I
   think it's safe to say, if you look at the numbers in the
   current rule, that across the board, those numbers have been
   increased.  
                 But in some areas, miners who got this proposal
   didn't know that, because the number that we found, only
   after we asked questions and got a answer to a formula
   that's contained back in the preamble.  Well, the 70.100
   still says 2 milligram is a compliance level and 1 milligram
   for out-by and Part 90 miners.  
                 Under this proposal, miners would actually have,
   for compliance purposes, the dust levels jacked up to 2.33
   would be the new compliance citation level.  And out-by
   miners and Part 90 miners would be 1.26.  And that is an
   issue that was opposed by the miners, opposed by mine
   workers, and opposed by the Federal Advisory Committee.  And
   it's based on jacking up the dust levels to make up for this
   uncertainty that's been described.  But instead of taking
   the uncertainty to protect the miners, which would be to
   lower that, the uncertainty went the other way and jacked it
   up to where we now do have these standards.  
                 And I think that it was wrong for the agency to
   be intending on issuing that rule without giving any public
   notice about that standard.  And unless you're out telling
   the miners, and the only ones that know about is the ones
   we've told so far that those are the new compliance levels. 
   The proposal also, for longwalls does increase up to 4
   milligrams on longwall faces, where MSHA would approve a
   plan to use respiratory protection.  And as a member of the
   Federal Advisory Committee and a longstanding person that's
   dealt with coal dust reform, I have to be honest with you
   folks, I fail to see where raising the dust levels in coal
   mines gets us to eradicating pneumoconiosis.  I just, you
   know, just, the logic just don't fit in.  
                 And as I've said, these are propositions that
   the miners have opposed, that the mine workers have opposed,
   and that the Federal Advisory Committee has opposed,
   straightforward.  And again, this is an area where what
   miners called for going back to the reductions, they called
   for increased dust sampling in coal mines consistently
   across the years.  And what they now have is, as far as any
   kind of standard decrease, and that has no legal guarantee,
   and it also permits mine operators under this proposal to
   change out engineering controls with administrative
   controls.  And we're still going through that proposal,
   because of two reasons.  
                 One is its conflict with the Act.  And secondly,
   the process, which is so, again, fuzzy, about how this whole
   proposal is going to be implemented as to what rights miners
   have.  And we've looked at both the respiratory protection
   control and the administrative controls.  We see miners'
   rights actually ripped out of the process.  Right now, when
   a longwall mine operator exceeds 2 milligram of dust,
   operator -- or MSHA is obligated to cite.  The miner has a
   right in that legal process under 105 of the Act.  They can
   challenge the abatement time, they can challenge the
   modifications.  Under this new proposal, that doesn't even
   trigger now until 4 milligram, as I read it.  There is no
   legal procedures of challenge.  
                 And I think, you know, representing miners, I
   would have to say that is not a good standard for miners. 
   It is contrary to the Mine Act, contrary to what miners have
   said, what the union has said and contrary to the findings
   of the Federal Advisory Committee.  Despite the report of
   takeovers, I've pointed out earlier there is no takeover in
   this rule.  There's elimination, as I think you've pretty
   well characterized, Ron, on the operator sampling with MSHA
   doing whatever sampling by policy they intend to do.  
                 And despite references of increased miners'
   participation, in the proposed rule, we do not see any
   increased miner participation.  I understand your arguments
   on 103(f).  That's what they had back in 1997 -- or 1977 --
   and I hope the agency understands the clear dilemma here
   with what the operators have already challenged with regard
   to the plan verification, that that's in a very weak
   position.  Although the rule does call for single,
   full-shift sampling, what we envisioned was single,
   full-shift sampling, not a piece here, a piece there.  With
   the compliance provisions, which is what we think is going
   to be the most relied on, whatever they may be, one a year
   for out-by or six a year, which is far too less, to be
   exempt from that full-shift sampling.  
                 And again, we don't have control over when that
   inspector's going to make that decision.  If they've got
   their 40 hours close by, Ron -- and I'll tell you, we've
   been in that problem many, many times -- and it's more
   convenient for that inspection to take place --
                 MR. SCHELL:  Joe, you said something I didn't
   understand.  You said that compliance sampling would be
   exempt from single sample measurements?  
                 MR. MAIN:  No, from the full-shift measure. 
                 MR. SCHELL:  Oh, okay.  I'm sorry. 
                 MR. NICHOLS:  Why don't we back up and talk
   about the use of personal protective equipment, since we're
   having this back and forth.  Now, you understand that the
   use of personal protective equipment would only, would be
   limited to the longwalls and only those folks working
   downwind of the sheer operator.  And only after the operator
   had exhausted all engineering controls and requested an
   allowance from the administrator. 
                 MR. MAIN:  Yes, I understand that. 
                 MR. NICHOLS:  For that limited --
                 MR. MAIN:  And let me give you a dose of
   reality, Marvin.  I don't know if you was with us when we
   got into the dog fights in Alabama over dust levels.  And I
   remember the operator claiming, we've done all we can,
   you've got to  give us respirators, you got to let us use
   those to comply with the law.  I've been in so many of those
   dog fights over the years, had I believed every one of those
   that came my way, we would not have the kind of controls
   that we have today.
                 And it don't take a rocket scientist to figure
   out how policy decisions are made and how quickly any mine
   operator could make that claim, and there'd be a weak-kneed
   policy decision.  And as far as policy decisions, you know,
   I could go through a slew of them here where we would never
   let a two-entry mining system be used with a bleederless gob
   dumping gas along the tailgate.  I mean, I heard that said
   many, many years ago, only to find Willow Creek two years
   ago with that exact mining system.  
                 And you've got to understand where miners come
   from here, Marvin.  We can't -- we understand that the
   application of that rule means that this is going to happen. 
   There's going to be a lot of operators who have claimed in
   the past they can't do it and they're going to still claim
   that today.  And if those mines where there's no miners'
   representative to stand up and say, wait a minute, we, you
   know, we've been through these policies.  It's, you know,
   it's pretty obvious. 
                 MR. NICHOLS:  But as I recall Jim Walters, that
   was a type of administrative control of switching people
   out.  Is that right?  
                 MR. MAIN:  What they wanted, Marvin, was
   Airstream helmets.  That was the first demand that they
   made.  And that was a demand that was refused by the miners
   and the union.
                 MR. NICHOLS:  Is it your opinion that, that all,
   all areas of coal mining can be brought into compliance by
   engineering controls?  
                 MR. MAIN:  It is my opinion that the Mine Act
   has works successfully. 
                 MR. NICHOLS:  No, that's not my question. 
                 MR. MAIN:  Well, I'm going to answer the
   question the way that I think that it needs to be answered
   for the benefit of miners.  I think that the Mine Act has
   been successfully applied where the agency has made a
   decision to apply that.  I believe that when a mine operator
   exceeds 2 milligrams, there's a citation that should go on
   that, on that mine to control the application of engineering
   controls.  And that operator is under obligation during that
   process to bring that mine back into control, as opposed to
   saying we're going to make a decision here, there is no
   engineering controls that -- and this is, because this is
   the basis of that whole issue -- there's no engineering
   controls that can be applied right now, we're going to go to
   Airstream helmets.  
                 I do not agree with that.  I think it's contrary
   to the Mine Act.  I think the process in place right now
   will take care of it.  As a matter of fact, if you let me go
   a step further, when this whole debate started, I started
   getting interested in how this whole system was working. 
   And I was told, I think by Ron Schell one day that, you
   know, Joe, if an operator has a quality respiratory program
   in a mine and when MSHA goes to cite them they get an S&S
   citation, if they have a quality respiration protection
   program in place.  
                 I pulled the paper and found that in almost 98
   percent of the cases, the operators was getting cited with
   S&S violations.  And I stepped back and said, what's going
   on here?  There's a request to use respiratory protection to
   replace engineering controls, but the industry isn't doing a
   quality job here just to get out of a citation.  And the
   second thing, I think there's a benefit there where an
   operator does, in good faith, apply the kind of respiratory
   protections they should be anyway, that there's a lot of
   leniency in the system, but it still keeps the enforcement
   paper on them.
                 MR. NICHOLS:  But I just want the record to be
   clear that we're not talking about putting Airstream helmets
   or personal protective equipment on people other than one
   small area of the longwalls where they've exhausted all
   engineering controls. 
                 MR. MAIN:  We're talking about an issue that has
   been very controversial where there has been attempts in the
   past to do that very thing that does place miners at higher
   risk of dust exposure.  And those miners who are currently
   wearing respiratory protections that we're describing today,
   those Airstream helmets, would have their dust levels
   increased by this standard. 
                 And I should remind the panel here that there
   has been a controversy over this very respiratory protection
   that you have identified as the ones that replace
   engineering controls, when it's not working proficiently out
   there right now.  As a matter of fact, there has been
   complaints made to both MSHA and NIOSH to rectify this
   problem where miners are taking an approved device, which
   cannot work in its current form, as I've been told by both
   labor and industry, because the darn thing fogs up, they
   can't see, because the filtering system that's used in
   doesn't permit it to be used well.  
                 Miners are even taking out, from what I
   understand, the approved filter and putting socks and other
   devices in just to get the thing to work.  And that's,
   unless I'm wrong, I mean this is the only Rickell-3M units
   that I'm aware of that you have identified in here that was
   faulty before you ever issued the rule.  And that bothers
   us.  And I've had miners complain, like I say, and the
   operators have complained.  
                 If I could proceed.  I don't want you to hold up
   the other folks here.  I'm just going to proceed through
   here real quick.  I'll be back again at the end of the
   session to have any more discussion that you care to have,
   but as I pointed out also, although the, there's been
   discussion about continuous monitors, there's none in the
   rule.  The proposed plan, the plan verification program is a
   bit on the complex side, and we're still sorting through it
   to figure out how that thing's actually going to work in
   real life.  
                 And I think some of the miners have already had
   some experience on some models that they maybe testified
   about throughout the hearings.  The administrative controls
   issue needs a lot more discussion, because it is again
   replacing engineering control with administrative controls. 
   On the Federal Advisory Committee findings, the Federal
   Advisory Committee called for lowering dust levels in the
   nation's coal mines.  The MSHA proposal increases those dust
   exposure levels.  
                 And there are specifics on each one of those
   that we will be putting in the record.  The committee called
   for increased compliance sampling.  The MSHA proposals
   substantially decrease the sampling.  The committee called
   for an effective MSHA takeover of the mine operator
   compliance program.  The MSHA proposal basically eliminated
   that and converted everything into policy. 
                 The committee called for a major expansion of
   miners and the representatives participation in the whole
   respirable dust program, training and certifying the miners'
   representatives, having miners' representatives involved in
   dust sampling conducted by the operator for plan
   verification, which we have always said and which the
   advisory committee has said that needs to be continued as
   part of this process.  
                 We did support those recommendations of the
   advisory committee.  The committee called for miners to be
   sampled for the full shift.  I think there was a clear
   envisioning that we intended not, over here on this type of,
   just on this type, that basically sampling miners for full
   shifts, particularly when it came to compliance sampling.  I
   mean, it was clear in my mind that that's what we were
   talking about -- and the MSHA proposal fails to do that,
   particularly in one of the biggest chunks of sampling,
   whatever it may be that were taking place, which is
   compliance sampling. 
                 Now, the committee called for environmental
   controls to continue to be the method to control coal mine
   dust, not replaced by respiratory protections.  And there
   are some other areas in the advisory committee proposal that
   we will be addressing throughout the course of the hearings. 
   I'm going to, like I say, I'll come back at the end of the,
   when everybody's finished and go into more detail on some of
   these proposals that -- as you can see, this is not a simple
   single shift -- single, full-shift sample rule and plan
   verification rule.  
                 There is a whole lot of other things involved in
   here that have a direct impact on miners.  There's a lot of
   standards that's no longer there for miners to point out,
   and there is a lot of construction of this new document that
   puts everything back as, hey, miners, the government will
   tell you what you can expect, and we hold that discretion
   for our own.  As for miners, I think that's a bad deal for
   them to buy into given the policy actions that we've seen
   out of the agency over the years.  
                 And as I pointed out, we think the proposal, in
   its current form, is fatally flawed.  You need to go back to
   the drawing board.  You need to listen to the issues that
   the miners have raised consistently, redraft the proposal,
   bring it back, taking care of the issues in the UMWA
   lawsuit, following the clear direction of the Federal
   Advisory Committee and coming up with a proposal that really
   enhances overall miners' protections on coal mine -- in the
   coal mine dust health and safety program, but which we think
   in its current form just fails to do.  Thank you very much. 
                 MR. NICHOLS:  Thank you, Joe.  Yeah, why don't
   we take a short break, but let's be back at 10 o'clock. 
                 (There was a short recess.)
                 MR. NICHOLS:  Let's get started back.  We've
   been told a number of people that it's hard to hear in the
   back of the room.  We've talked to the folks here, and I
   guess this is about all the volume we can get out of the
   system, so I would ask that the presenters speak as loud as
   they can.  Can you hear me in the back now?  Well, I'm
   afraid this is probably going to be the best we can do.  If
   you folks in the back want to move your chairs up front, you
   could do that.  We've got some room over to my right here
   and some to my left.  
                 Okay.  Let's get started back.  Our next
   presenter will be Chris Ballard with the United Mine Workers
   of America. 
                 MR. BALLARD:  My name's Chris Ballard.  I'm a
   safety committeeman with Local 1501, District 31, United
   Mine Workers.  In opening my comments, I would like to first
   voice my displeasure with the proposed changes in the MSHA's
   respirable dust regulations.  Miners have been fighting for
   many years to obtain laws and standards that are currently
   in place.  These laws and standards, while better than
   nothing and have decreased respirable dust in coal mines,
   still leave an enormous amount of room for improvement.  In
   my opinion, the proposed changes in the existing dust
   regulations are a step backwards and not what coal miners
   need or are asking for. 
                 First of all, why would we want to reduce the
   number of samples taken to verify if the mine ventilation
   plan is actually doing its job?  I believe that the samples
   being currently taken from the mine operators should be kept
   in place to aid in the credibility of these tests, as
   miners' representatives should be allowed by law to observe
   and/or assist in the entire dust sampling process at no loss
   of pay to the miner.  Using this method of testing will
   ensure the accuracy of each sample to the satisfaction of
   all parties.  And after all, isn't that what we should all
   be interested in achieving? 
                 Also, MSHA should continue to do their testing
   as they currently are doing.  They should not be using any
   type of schedule as suggested under the new proposed
   regulations.  Random unscheduled sampling, if included in
   the new rule, will result in the most actual and true
   samples of respirable dust that miners are exposed to on a
   daily basis.  The length of time a coal miner is exposed to
   respirable dust has dramatically increased over the past
   several years.
                 Miners are now being forced to work 10- and
   12-hour shifts instead of the traditional eight-hour shifts. 
   Along with this, production of coal has increased due to
   advances in technology in mining methods.  Everyone knows
   when coal, when you cut coal faster and cut more tonnage per
   shift, this also increases the amount of respirable coal
   dust generated.  So why doesn't the new rule require that
   all samples be taken for the entire length of a working
   shift and during full production, not just an average?  
                 This new rule also increases the amount of
   respirable dust being allowed on a longwall face.  The new
   rule, depending on the interpretation, would at least double
   the allowable dust concentrations from 2 to 4 milligrams
   with the use of respirators or air helmets. This is clearly
   a step backward in MSHA's ability to require a reduction of
   coal dust and eliminate pneumoconiosis.  With the technology
   available today, engineering controls can take care of
   respirable dust at a level below 2 milligrams if they are
   used and maintained in the conditions which they were
   designed. 
                 Clearly, an increase in these numbers is not
   needed.  No one here wants to see their family members
   exposed to twice as much respirable dust as is now allowed
   by law.  Also consider the added danger this increase in
   dust, if allowed to be suspended in the air course, would
   create if a face ignition would occur.  One of the best
   solutions of dust sampling would be a continuous monitoring
   system.  If a monitor were mounted directly to the mining
   machine, a true and accurate sample could be obtained. 
   These testing devices are available and should be
   implemented into the new rule, as the advisory committee
   recommends. 
                 I believe that MSHA should go back to the
   drawing board and revise the proposed dust regulations.  I
   believe that MSHA should take a closer look at the advisory
   commission's recommendations and develop a new set of rules
   using these recommendations as a strict guideline.  I also
   believe that MSHA should establish a new respirable dust
   rule that truly minimizes a coal miner's exposure to
   respirable dust and stops coal miners from dying of black
   lung.  Thank you. 
                 MR. NICHOLS:  Thank you, Chris. 
                 MR. SCHELL:  Mr. Ballard, just following up on
   Joe Main's comment that we try to explain things to you, one
   of the things, one of the major pluses of this rule that we
   see from the government -- and the reason I'm stating it
   that way is because we need your input as we move to a final
   rule -- one of the major things that we're doing is this
   plan verification.  And that really is sampling under very
   stringent conditions.  The mine operator has to set the
   parameters that they have in their plan and that's all.  And
   they have to be no more than 15 percent about what they say
   in their plan. 
                 They have to reach a level of production that's
   high.  And if you read the rule, we know they're not going
   to reach that level of production every day we verify,
   because of just the reasons that you guys know; some days
   you get high production, some days you get low production. 
   So we're not going to be out there sampling just one, two or
   three or four shifts to verify a plan.  We're going to be
   going back multiple times. 
                 But the concept is that we want that plan tested
   for the entire shift at just what that operator says he's
   going to put in his plan for the entire shift.  Because if
   we think we're confident that that plan works and he checks
   that plan every shift, miners are going to be protected. 
   Our concern with the bimonthly sampling and with the
   operator sampling -- and Joe raised this too -- a lot of
   times, that sampling isn't representative of what you see
   every day.  Okay.  An operator could have more controls in
   place.  An operator could cut back production.  
                 So our key is we want a plan that we have
   verified.  Okay.  We want that plan checked every production
   shift to make certain that those controls are working and
   you guys are comfortable that those controls are working. 
   We see bimonthly sampling as a check on that process, but we
   don't think every time we do bimonthly sampling we're going
   to see the conditions under which that plan was verified. 
                 So we're putting an enormous amount of our
   effort into getting those plans and making certain that
   those plans work and making certain that those plans are in
   place every day and every shift.  Again, our goal.  We want
   miners protected on 400 shifts a year on average, not on the
   30 where sampling occurs. 
                 MR. NICHOLS:  And I would just say again that
   the, that the consideration for personal protective
   equipment will be only on longwalls for people that are
   working downwind of the sheer operator.  And no
   consideration will be given to the use of personal
   protective equipment until MSHA has made a determination
   that all engineering controls have been exhausted.  It's,
   it's very restrictive, a consideration for the use of
   personal protective equipment.  Okay, our next presenter
   will be Jim Taylor, with the United Mine Workers of America. 
                 MR. TAYLOR:  Good morning.  I hope everybody can
   hear me, because back there it's really tough.  And we were
   talking about the regulatory controls for the air helmets,
   okay.  Here's the problem.  NIOSH come up with a different
   kind of filter.  As soon as they come into play, the guys
   start coming to us and they say, they tear, can't see,
   fogging up all the time.  That hasn't changed.  They're
   either replacing the -- and we talk.  I mean when we get the
   safety committees together, we talk what's going on to other
   miners.  They are removing these filters and they are
   sticking socks over top of them.  Sliding them in there
   inside that filter to take away the condensation steaming up
   so they can see. 
                 So that really has to be considered in here
   before anything can be granted.  You may have everything in
   control, but if people's not using it, it's no good to us. 
   The same way with the hearing protection.  We have cleaning
   plants out there that are loud as bass drums.  And what do
   we do?  We give them ear muffs, and that puts them in
   compliance.  And this is what we're getting into on this. 
                 The air helmet is a good thing if it's used and
   you can see through it and the filters are properly -- when
   they come to us, we called 3M and we said, we want the old
   filters back, guys are raising hell about this.  They said
   "there is no old filter anymore.  Discontinued according to
   NIOSH.  This is NIOSH's new standard.  This is what we have
   to sell you."  But it doesn't work.  So now guys aren't
   wearing them.  They're wearing the old paper respirators
   that are less protective that what we have.  
                 So we've got to make things work here before we
   start giving -- I know it may be a long-term down the road
   for 4 milligram, and like you see, all engineering controls
   would have to be exhausted, but hopefully that would take
   care of it.  If they have exhausted all engineering
   controls, we shouldn't have to get into an air helmet to
   allow them the same as we do with the hearing protection. 
   And another thing I'd like to ask about is we didn't hear
   real good back there, so maybe a clarification. 
                 MR. SCHELL:  If you take that microphone off and
   put it up to your mouth.  Take it on the stand. 
                 MR. TAYLOR:  Oh, I can talk loud.  People will
   hear me.  But what I want to ask about is if MSHA uses
   certified dust people to run these dust samples, then, and
   they don't have an AR card, then we have no walk-around
   rights, correct?  
                 MR. SCHELL:  No.  That would still be
   enforcement action. 
                 MR. TAYLOR:  Without an AR card, and they're
   just certified only in dust?  
                 MR. SCHELL:  Yes, but that would still, that
   person might not be able to issue a citation, but I would
   say that's still enforcement activity, and I'm looking at
   some of the managers who are here, but I've never heard of
   us not allowing walk-around rights when we're doing dust
   sampling, even if it's a non-AR -- we'll check on it, Jim,
   but our position would be that the miners' representative
   should have 103(f) rights when we're doing dust sampling. 
                 MR. TAYLOR:  Sure would appreciate that.  Thank
   you. 
                 MR. SCHELL:  If I could comment on the Airstream
   helmet.  We are aware that 3M is working on that.  The
   proposal does say to use pappers (phonetic) they have to be
   approved devices.  So, you know, if it wasn't approved, it
   couldn't be used.
                 MR. NICHOLS:  Well, in addition to that, I mean,
   a miner can't be just handed a personal, piece of personal
   protective equipment, that the company would need a good
   maintenance program that is in conformance with --
                 MR. TAYLOR:  Well, we got a good maintenance
   program.  They take care -- it's the filter.  It's the
   filter that's causing the problem.  That's what makes the,
   when it steams up and then you wipe it one time with a dirty
   glove, you're done for the day.  I mean, you're going to
   have to go clean it.  You find more helmets are staying in
   the up position now, back on their heads.  They're not
   wearing them or they're just, we're going to do the paper
   respirator and wear it, because they say they can't see
   through these helmets with new filters in.  They're causing
   them to fog up.  
                 So it's not a maintenance program.  It's the
   filter that 3M is producing right now, but when we called
   them, they said, "we can't change it.  NIOSH told us this is
   what we will use." 
                 MR. SCHELL:  Yeah.  You're right.  
                 MR. TAYLOR:  That's what they told us. 
                 MR. SCHELL:  Like I say, there is some work
   being done on that.  And I think there's a new Centurion
   papper that's being developed too, but you're right, Mr.
   Taylor, that that unit would have to be approved before it
   could be used under this rule.
                 MR. NICHOLS:  Thank you.  Our next presenter
   will be Leon Mosculink.  I may have not pronounced that last
   name right.  Also with the United Mine Workers of America. 
                 MR. MOSCULINK:  The first sentence in the Act,
   it comes down that we must protect the most precious
   resource, and that is us, the miners.  And to allow, to say
   that the operator has exhausted all the parameters and we're
   going to go with the equipment and to up the respirable dust
   limits to 4 milligrams, in our opinion, that is not
   protecting the miner, the most precious resource.  Joe asked
   specific, show me in the rule where this is and where that
   is, and you can't show him.  And if it's not a rule, if it's
   preamble, if it's policy, MSHA can't cite policy.  MSHA only
   cites standards and rules.  
                 The full shift, single shift, the reason, the
   reason that we wear dust pumps at portal to portal is
   because we have different forms of contaminants that we
   breathe.  Silica from sand, rock dust, coal.  And a lot of
   us are mandatory to work more than eight hours mining coal. 
   We need more than 480 minutes of sampling to get a true
   sample of what we breathe.  
                 And having the inspector, as you said, Ron, the
   inspector wants to determine when he wants 480 minutes.  But
   that's not true for all the miners today who are working in
   the mines.  We're working more than 480 minutes loading
   coal, cutting coal, hauling coal.  And to, as I said in the
   beginning, to up, to up the 4 milligrams on a longwall,
   we're not protecting the most precious resource, and that's
   us.  
                 You cannot, you cannot allow the operators to
   say, oh, we've exhausted everything and we're going to give
   you Airstream helmets.  And as Marvin says, it's only going
   to pertain to people downwind on the longwall.  What's going
   to, what's going to say that the operator can't say on a
   continuous mining section, well, they've done it over here,
   I'll do it on the continuous mining section and give them
   Airstream helmets?  
                 MR. NICHOLS:  If you're asking me a question, I
   think we've made it clear in the rule that the agency
   believes that in all other areas of a coal mine, engineering
   controls could be applied to eliminate the overexposures. 
                 MR. MOSCULINK:  Marvin, how's the people on the
   longwall different than any other place in the coal mine? 
   That's what you're telling us. 
                 MR. NICHOLS:  No.  I'm telling you that the
   agency has recognized that there may be times when the
   people working furthest downwind may be exposed to
   concentrations higher than 2 milligrams and that the problem
   cannot be engineered out.  Not, not the sheer operator or
   anybody else working on the longwall.  It's those folks
   working downwind.  Now, if I would have misspoke in any way,
   I'd ask the panel to help me out with that. 
                 MR. SCHELL:  It might be helpful to talk a
   little bit about the process, that we see that the only time
   that the administrator would even consider administrative
   controls or pappers downwind of the DO which is the 044 --
   and I want to emphasize that -- the rule says, right now on
   longwalls, the designated occupation is the 060.  That's the
   miner working furthest downwind.  
                 If we went through plan verification, and that's
   what I've been talking about, full shift sampling, only the
   controls listed in the plan in place, okay.  If we went
   through that plan verification process and, based on that,
   we determined that the operator couldn't apply engineering
   controls to keep people downwind in below 2 milligrams, the
   DO would be moved to the 044.  The operator would have to
   comply with the 2-milligram standard at the 044, the sheer
   operator.  Only people working downwind would be allowed the
   advantage of administrative controls or pappers.  
                 And you should recognize that NIOSH says pappers
   have a protective factor of 25.  That means you could take a
   standard of 2 milligrams and multiply it by 25 and, in
   theory, allow 50 milligrams of dust downwind.  We haven't
   accepted that.  We've said that for that unit, even though
   NIOSH rates it as a protective factor of 25, we're only
   going to give it a protective factor of 2 maximum, so that
   we will give no more than a credit of to a maximum of 4
   milligrams of dust downwind.  
                 But I want to emphasize, you're going to have to
   go through this -- it isn't you just write to the
   administrator and he says okay.  You're going to have to
   demonstrate through the plan verification process that you
   cannot maintain 2 milligrams downwind of the sheer operator.
                 MR. MOSCULINK:  And my point again, Ron, I mean
   those people downwind are, as you're saying, they, they are
   allowed to work in more than 2 milligrams of dust.  That's
   what you're telling me. 
                 MR. NICHOLS:  Is that not the reality today?  Is
   that not the reality today?  
                 MR. MOSCULINK:  The reality?  The reality,
   Marvin, is that you have 2 milligrams, you have a law. 
   Miners have died for -- that we've come to this.  And now
   you're going to say, well, we're going to let the operators,
   because -- because the operators come to you and say, well,
   we can't do this, you're going to have to give us parameters
   where people that are downwind are going to wear Airstream
   helmets. 
                 MR. NICHOLS:  No, the first thing we're going to
   do is ask the operators to apply all feasible engineering
   controls to handle dust overexposures everywhere in the coal
   mine.  And once we go through that process, if at that point
   people working downwind are, continue to be overexposed to
   2-milligram standard, then we will consider allowing them to
   use personal protective equipment on that limited basis. 
                 MR. MOSCULINK:  And as the previous Brother
   testified before, he said that we have, we have people
   putting socks in these Airstream helmets for the filters,
   because, because they're fogging up, so they're, so they're
   improvising. 
                 MR. NICHOLS:  Okay, but let's back up a minute. 
   We've exhausted all engineering controls and we still have
   the problem.  What would be the alternative to personal
   protective equipment?  
                 MR. MOSCULINK:  I mean, we, you know, and Joe
   stated to you too, Marvin, you know, he was on the advisory
   committee, and as I stated in my opening sentence, the most
   precious resource is the miner.  We, you know, you have to
   make the operators do what their plan and what their
   ventilation plan calls for and you have to hold the
   operators to that plan.  That's the whole reason.  You know,
   that's, that's my thinking of enforcement.  
                 I mean, and to me, you guys are giving the
   operators an easy way out, saying, well, if you've exhausted
   all your, you know, you've exhausted everything else and now
   we're going to go to the equipment.  To me, you're not
   helping us, you're not looking out for the miner.  And
   lately it seems like, you know, that's the thing, you know,
   with the court cases, you know, and I've always got from
   inspectors and from, you know, we've got cases in court and
   everything and we can't do this, you know, our hands are
   tied. 
                 You're going to have to say, hey, you know, to
   hell with our hands are being tied, we have to protect the
   miner.  And like on a full-shift sample, when, on a
   continuous monitor section, when a continuous monitor's up
   cutting overcast, they're never sampled.  I've never seen,
   I've never seen a continuous monitor operator sample when
   he's up cutting overcast in the wall.  Am I correct?  I
   mean, yeah, I mean why?  How's come?  How's come the, the
   loading crew is not sampled when you're up on bench mining
   cutting rock?  
                 MR. SCHELL:  Well, they should be if they're
   there.
                 MR. MOSCULINK:  Yeah, they should be, but
   they're not.  They're not.  It's not, you get the excuse,
   well, that's not, they're not cutting coal, they're on,
   they're on a rock.  We've got to eat that dust.  The only
   thing my, you know, I'm going to stop here and, because I
   could go on forever, but we have to get back to protecting
   the most precious resource, and that's us.  And with this
   proposed rule, you're not protecting us.  You are not
   protecting us.  Thank you. 
                 MR. NICHOLS:  Thank you.  Our next presenter is
   Jim Lamont, also with the United Mine Workers of America. 
                 MR. LAMONT:  Jim Lamont, United Mine Workers of
   America.  I'd first like to start off saying I'm a veteran
   miner of 22-plus years working underground in the coal
   mines, and a lot of this, what I have sat down and read in
   the short time frame that we were allowed, was very, very
   confusing.  I've been to numerous hearings such as this, was
   able to sit down and fully understand for the most part what
   was being presented, but in this case, it was very difficult
   to understand where the rule started and ended and where the
   preamble started and ended.  And I'd just like to have that
   on for the record.  
                 Picking up on one thing, what Brother Mosculink
   just said about sampling whenever they're cutting overcast
   and such.  Just one thing just popped in my head over that. 
   A lot of coal mines in the industry out here nowadays, what
   they'll do is they'll cut coal -- this is like in the lower
   seams -- they'll mine their coal during the weekday and on
   the weekends they back up, cut bottom where they're mining a
   lot of rock.  And what we have encountered in some of the
   mines that I've been in in the past is there is no
   provisions and actually no parameters set up to take care of
   the dust and cutting rock once you've already mined the coal
   out, you're backing up.  
                 And as Brother Mosculink said also, I have yet
   to ever see anybody be sampled under those conditions.  Just
   recently, I had to return to the mines for a brief period of
   time.  The mine in which I, the mine I came from, was just
   recently shut down.  And being away for a short five years
   was a big change.  Not only me going back, spending six
   weeks there trying to catch back up on how things are done,
   but the physical aspects of it all also.  
                 I was working back at the face and things have
   changed a lot since I have left the industry in that respect
   too.  One thing I did notice, you get a lot of these
   continuous mining sections.  The dust that is emitted is
   unbelievable.  And it's been one thing, one of my really big
   beefs is the amount of dust that these working miners today
   have to breathe.  And like I said, I haven't been away from
   the industry all that long, and me just going back being
   away that short few years was a big reality check.  
                 And sometimes I have to sit back and contemplate
   like where do some of these rules come from?  We have the
   advisory committee with all of the recommendations.  You've
   heard the miners throughout the years with all their
   comments and recommendations on what we need.  And then we
   get the stuff in this proposed rule that just goes
   completely against it.  I don't know, and you know, nothing
   personal to the board up here, but I think a lot of folks in
   Arlington should go back into the mines, spend a period of
   time there, actual working conditions, and get a reality
   check.  I mean, I think a little bit of everybody needs to
   that.  It'll open everybody's eyes up.  
                 One thing that we did do is sit down and we talk
   about the amount of samples that are going to be reduced by
   some 83 percent.  What we did was sit down and, like I said,
   again, in a short period of time, and some of this may not
   be completely accurate, but this does come from some of
   MSHA's own records.  The Cumberland mine.  The number of
   total samples -- and I'll just go over the summary of this
   here, this includes the operator and MSHA samples for the
   month of January, and this is of the year 1999 -- a total of
   57.  The month of February, 31.  March was 50.  April, 11. 
   May, 38.  June was 42.  July, 24.  August, 58.  September,
   30.  October, 26.  November, 23, and December, 24.  For a
   grand total of 414 samples that was taken. 
                 Now, from my understanding of this, and correct
   me if I'm wrong, this is going to be substantially reduced.  
                 MR. SCHELL:  Jim, is that samples or sampling
   shifts you're talking about?  Because what MSHA is proposing
   would be to take, and we are doing that now by a policy,
   we're taking the same number of samples, roughly, that
   operators do, but we're not sampling as many shifts as
   operators do.  So the answer, to some degree, is yes, if you
   have operator sampling and MSHA sampling, when operators
   stop sampling, the number would be reduced.  
                 But we are saying, since we're sampling
   bimonthly, which is six times a year and we take at least
   five samples on the shift that we conduct the sampling, and
   the operator takes one on the five shifts, the total number
   of samples won't change much.  So the, I don't know if I'm
   saying that right.  The number of samples will remain about
   the same.  The number of shift samples will decrease. 
                 MR. LAMONT: Under your calculations, what would
   that approximately be?  
                 MR. SCHELL:  Well, right now, the operators take
   30 samples, because they sample one, they take one sample
   for 30 shifts.  That equals 30.  We're proposing to sample
   six shifts and take five samples, which would be 30 samples. 
   The difference being we sample five occupations on a shift. 
   The operator basically samples the high-risk occupation. 
                 MR. LAMONT:  These numbers I did give you were
   actual samples. 
                 MR. SCHELL:  And they're both MSHA and operator? 
   
                 MR. LAMONT:  Yes.  Yes.  
                 MR. SCHELL:  Okay.  The numbers should decrease.
                 MR. LAMONT:  Actually, the numbers I came up
   with and the numbers that MSHA came up with, mine was lower,
   which I went with the lower number.  The number I did get
   from MSHA with the operator and MSHA taking, was 432.  That
   was for the Cumberland mine.  For the Emerald mine, it was a
   grand total of 358. 
                 MR. SCHELL:  Well, one of the points we're
   making is when the operators take their samples, they decide
   the day they're going to sample and they know the conditions
   under which they're going to sample.  They sample one
   occupation.  When MSHA comes in, it's unannounced.  We
   sample five occupations so we get a better idea of what's on
   that section.  So I think all of us, I think we're all in
   agreement that MSHA sampling is better than operator
   sampling in terms of being more representative perhaps. 
                 MR. LAMONT:  Still, I believe with the advisory
   committee's recommendations, we're under the impression, in
   which they asked for MSHA to take over the sampling of the
   operator sampling, that it would be sampling just as much as
   which the operator did.  And I'm not under that
   understanding.  What you said would be a total of 36. 
                 MR. SCHELL:  But you are right.  We are not
   sampling the number of shifts that the advisory committee
   recommended.  That is correct. 
                 MR. LAMONT:  That's all I have.
                 MR. NICHOLS:  Thank you, Jim.  Our next
   presenter will be Gene Davis, also with the United Mine
   Workers of America. 
                 MR. DAVIS:  My name is Gene Davis.  I work at
   Consol at the Dilworth mine in Green County, Pennsylvania. 
   I believe there are a few things I need to say about the
   proposed rule, so we'll get right to it.  During the first
   round of fact finding for this rule, I remember the outcry
   by myself and other miners to the advisory committee on the
   need for full-shift sampling.  These outcries seem to have
   fallen on deaf ears, as MSHA in its infinite wisdom feels it
   is not necessary to sample a full shift to have a
   representative sample of the amount of dust that we are
   working in.  
                 The way I read this rule, and please correct me
   if I'm wrong, is that once the plan is verified, if the
   bimonthly sample that is out of compliance then, and only
   then, will MSHA take a full-shift sample for abatement
   purposes.  If you were out of compliance for the 480
   minutes, how bad was the actual concentration these men were
   in for the entire shift, which could have been ten or even
   12 hours? 
                 Or how many days, how many other days were these
   men out of compliance in the ninth, tenth, 11th or 12th
   hour?  I'm sorry for asking that question.  I know there is
   no way to tell what that concentration was at this time, nor
   will they ever know without complete full-shift sampling. 
   Let me see if I understand this part of the rule, which I
   believe states that if a single sample comes in at 1.71
   milligrams per cubic meter or less, then it would not be
   necessary to sample that area any more in that sampling
   period.  This, of course, would be a 480-minute or an
   eight-hour sample.  
                 Now, if you have a sample that comes in at 1.7
   for eight hours, which is considered a good sample, and you
   break this down, it means that that sample has gained 0.85
   milligram per cubic meter every four hours, which means in a
   12-hour shift, these men could be working at 2.55 milligrams
   and MSHA truly believes this is what we need.  That's scary.
                 Perhaps you did not understand this message the
   first time we said it, and if that is the case, allow me to
   reiterate.  We need full-shift sampling.  That is to say
   that if the shift is nine, 10 or even 12 hours, we need an
   accurate measurement of the amount of dust that we are
   working in for these long hours.  
                 Secondly, you make reference in the preamble to
   the fact that there is no confidence in the operator
   sampling program, because of years of, to be blunt, cheating
   and manipulation.  MSHA cites this as one of the reasons for
   taking over the program.  However,  MSHA is now proposing to
   take fewer samples, fewer shift samples, 83 percent fewer
   shifts.  And then, once the sample is taken and found to be
   in compliance, MSHA will then rely on the very same people,
   that is management, to perform on-shift exams of the dust
   parameters to ensure the level of dust sampled will be
   indicative of the actual dust amount in the atmosphere. 
                 If you cannot trust the management to take the
   samples, how can you rely on them to perform the needed
   on-shift exams?  I wonder how many citations were written on
   the dust parameter check since '96, when they were put into
   effect.  Is it just me, or does this approach seem flawed
   from the beginning?  The one thing we do not need is fewer
   samples.  Fewer samples simply will not tell us what we need
   to know. 
                 The next item I'd like to address -- and I won't
   be too long, because I believe it to be more ridiculous than
   the first two -- is the use of an Airstream helmet to clean
   up the atmosphere.  Excuse me.  The Airstream helmet cannot
   clean up the atmosphere.  It can only mask the amount of
   dust we are actually working in. 
                 Not only will MSHA allow the use of these
   helmets, they will allow the concentration to double to 4
   milligrams per cubic meter when they are used.  They will
   allow this knowing all that has been written about the
   effect of this and how it can be reduced by velocity, angle
   of deflection, the fact that they are being worn improperly. 
   And don't forget the very restrictive filter that many
   miners are not wearing at this point in time.  MSHA still
   believes it is proper to allow the use of this personal
   protective item instead of cleaning up the atmosphere. 
                 To answer that, I will make this statement.  If
   you do not write a rule that stretches the limits of
   existing dust abatement technology, how will you ever move
   ahead in this field?  All management will have to do to come
   into compliance is buy more Airstream helmets.  What will we
   have next?  A helmet that will allow us to work in 5, 6, or
   even 7 milligrams of dust?  So instead of a dust abatement
   technology, we end up wearing a space suit.  I do not
   believe this is the approach we need at this time.  
                 In summary, I would like to say this proposed
   rule does not come close to protecting us from the
   devastating effect of black lung.  What MSHA has done, once
   again, was appease the workers with an advisory committee,
   which had two labor representatives on it, and then totally
   ignore their findings in the most important areas, such as
   full- shift sampling, lowering the 2-milligram limit and not
   raising it, not allowing administrative or personal
   protective gear to be used to come into compliance.  And
   there are many more that were ignored.  
                 Then, as always, they write what they wanted in
   the first place and expect us to accept it.  Not this time,
   guys.  Take this rule back and give us a rule we can live
   with, literally live with.  And that's it.  
                 Two other things.  Sitting in the back I hear
   you talking about plan verification and you make it very
   adamant that this verification will be under very strict
   guidelines and you'll have to meet a certain tonnage very
   close to what the tonnage for that last 30-day period was
   and 15 percent of your, you have to be within 15 percent of
   your parameters.  Where will that sample be taken?  At the
   start- up of a panel?  At the midface of a panel?  Or at the
   end of a panel?  Because that means a lot. 
                 If you verify this at the end of a panel when
   the coal is soft and falling off the face, and then we go in
   to start-up, your verification is really not very good at
   that.  And I haven't heard anybody address that.  Where will
   that be taken?  
                 MR. SCHELL:  We haven't focused on that in the
   rule, but that's a very good comment. 
                 MR. DAVIS:  Yeah, I figured that might have
   been.  Another one, on the Airstream helmets, on the
   Airstream helmets, you say that, I guess the last, Joe Main
   was up there, and Leon was up there, and you asked them, if
   we're not to use Airstream what are we to do?  You know, and
   I guess you're wanting the mine workers to say, well,
   Airstreams are all right.  
                 Well, here's what I think.  If you want to use
   the Airstream as an interim, fine.  Do not raise it to the
   level to 4 milligrams.  Leave it at 2.  Write the citation,
   put an abatement time on it.  
                 At the end of the abatement time, let's have a
   meeting and find out what management has done to come into
   compliance with the 2.0 limit.  If they have not, if they've
   drug their feet, let's bump the citation to S&S and now put
   another abatement time on it.  If at the end of that period,
   they still have not made a substantial move into that field,
   let's put it to an order and put another abatement time on
   it.  If you want to use the Airstreams, that's the way to
   use them?  Don't throw them in there blindly and leave them
   on their head with no abatement time on it.  Anything else,
   fellows?  
                 MR. NIEWIADOMSKI:  Mr. Davis, can I ask you to
   clarify something?  
                 MR. DAVIS:  Yes. 
                 MR. NIEWIADOMSKI:  Early on you had mentioned a
   concentration of 1.71. 
                 MR. DAVIS:  Yes, I believe I read that in there
   where if a single sample comes out at 1.71, it will be
   considered good and no more sampling will be done for that
   period in that area.  I believe I read that in the preamble.
                 MR. NIEWIADOMSKI:  What that has to do with, I
   think that there's some confusion.  That statistic or that
   concentration is a limit for plan verification.  What we're
   basically saying is that --
                 MR. DAVIS:  Well, I believe that's fine, but --
                 MR. NIEWIADOMSKI:  But that's very important,
   because remember, right now, and I need to clarify, right
   now if we go out there and sample, and the operator's mining
   60 percent of the last 30 production shifts on the average,
   and the concentration of the samples is 2 milligrams, we'll
   approve that, okay?  It's compliance.  But in the plan
   verification, it's very stringent.  
                 What we're basically saying is you're going to
   be producing at the 10th highest production level, and your
   concentration, we're not going to accept the plan as being
   adequate at 2.  We have to be highly confident that it's,
   that it's meeting the standard, which means 1.71 for coal
   mine dust.  If it's any higher, we have to sample some more. 
   What we're basically saying, under those conditions at 1.71
   for coal mine dust, and remember the other thing that you
   need to recognize, there are two tests that have to be met. 
   We're talking about coal dust and quartz dust.  That plan
   has to be designed to make sure that you're anticipating
   that you have to meet 100 micrograms and 2 milligrams.  
                 But for us to accept it, we're not going to
   accept it at 2 or 100, we're going to be 95 percent
   confident the plan works.  So the levels are even reduced
   down to 1.71 and 87.  And that's what I wanted to clarify. 
                 MR. DAVIS:  Let me fully understand this then. 
   What you're telling me is a full -- if I'm working 12-hour
   shift, and a full verification sample comes in at 1.71 --
   that's fine.  That'll meet. 
                 MR. NIEWIADOMSKI:  That's fine.  That will meet. 
    That's a 12-hour sample. 
                 MR. DAVIS:  That's a full 12-hour sample.  Okay. 
   Now, on a compliance sample, the normal bimonthly compliance
   sample that you come in and do and you hit a 2.0 and you
   will say, well, that's okay, a 2.0 is still fine.  Is that
   right?  
                 MR. NIEWIADOMSKI:  We would --
                 MR. DAVIS:  And that would be a 480-minute
   sample?  On the same 12-hour shift that I just worked?  
                 MR. NIEWIADOMSKI:  But not at 10th highest
   production level. 
                 MR. DAVIS:  But if I'm at 2.0 in eight hours, I
   still have four hours of a shift left. 
                 MR. NIEWIADOMSKI:  Right. 
                 MR. DAVIS:  How can I be in compliance?  
                 MR. NIEWIADOMSKI:  If the sample, if the sample
   is 2 milligrams or any higher, we'll go back and sample it
   again, because what that's going to tell us is this: We know
   the parameters during that shift, and most of the time when
   we go out and sample, the operator normally exceeds what's
   in the plan.  Does he exceed, would he exceed the high
   production level?  No, he's going to try to mine to make
   sure he's at minimum production.  All right?  
                 MR. DAVIS:  He will exceed the dust parameters
   but not the production level, let's put it that way. 
                 MR. NIEWIADOMSKI:  Well, that has not been our
   experience. 
                 MR. DAVIS:  It has been mine. 
                 MR. NIEWIADOMSKI:  But assume that's the case,
   okay?  And if you have a 2-milligram concentration, what
   that does for us, it's going to raise a red flag in saying,
   gee, when we did the plan verification, he was right at the
   plan and he was at 1.71.  Here, he's exceeding the plan and
   he's at 2.  That triggers additional shifts of sampling on
   our part. 
                 MR. DAVIS:  If he comes in at 1.98 on that
   compliance sample, will you allow that to go then?  On a
   480-minutes compliance sample after a plan has been
   verified. 
                 MR. NIEWIADOMSKI:  Okay. 
                 MR. DAVIS:  You will allow that to go?  
                 MR. NIEWIADOMSKI:  If the --
                 MR. DAVIS:  If the measurement is 1.98
   milligrams per cubic meter. 
                 MR. NIEWIADOMSKI:  If it's 1.98, okay, in all
   likelihood what we're going to be doing is we may in fact go
   back --
                 MR. DAVIS:  I don't mean to interrupt you, I
   don't want to know what you might do, I want to know what
   the rule says you'll do. 
                 MR. NIEWIADOMSKI:  We'd probably, we would go
   back.  We would go back.  We would go back and say we'll
   have to sample another shift. 
                 MR. DAVIS:  Even though he is in compliance. 
   You cannot write a citation at that point.  Right?  
                 MR. NIEWIADOMSKI:  That's right.  That's -- but
   it allows us to sample some additional shifts to see whether
   or not there is a problem with the plan.  If we suspect that
   the plan is inadequate, we would go into re-verification
   sampling. 
                 MR. DAVIS:  Whose decision will that be at that
   point in time?  
                 MR. NIEWIADOMSKI:  That's the inspector,
   district manager. 
                 MR. DAVIS:  All right.  There's nothing written
   on that, thought.  That 1.98 is actually a clean sample,
   right?  No, I don't, I mean I read the preamble, if it's
   something written and I missed it --
                 MR. NIEWIADOMSKI:  The clarification is this:
   That there are no rules out there that actually define or
   explain how MSHA does inspections, right?  We would in fact
   issue, we have -- we're revising chapter one to actually, to
   describe, to detail the procedures that we would follow when
   we do compliance and abatement sampling.  I recognize that
   those procedures are not in a rule.  They were never
   intended to be, because there is no rule out there right now
   that defines our inspection procedures.  
                 We would issue chapter one.  That would be
   issued for public comment.  Everybody would have an
   opportunity to provide comment.  That will be articulated. 
   I agree with you.  There's nothing in here that says exactly
   how is it that we're going to be doing it. 
                 MR. DAVIS:  Right.  And you know George --
                 MR. NICHOLS:  We understand the comment. 
                 MR. DAVIS:  And I believe, I really believe,
   George, that you believe or you hope that this is going to
   work just like you want, and maybe in a absolute crystal
   ball, it might.  But let's be real.  It's not going to work
   in that manner.  I could guarantee it's not. 
                 MR. NIEWIADOMSKI:  I truly believe that this is
   the best package, this is -- if you take a really close look
   at it, you will find that this is a significant improvement,
   the most significant that we've had over the past 30 years. 
                 MR. DAVIS:  George, I'm not going to say it's
   not an improvement.  Is going to say it's not enough at this
   time.  And I'll leave it go at that time.  I don't believe
   it to be enough at this time.  So we agree to disagree on
   that one, George. 
                 MR. NICHOLS:  Okay.  Thanks, Gene.  Our next
   present will be Chuck Hayes, also with the United Mine
   Workers of America. 
                 MR. HAYES:  My name is Chuck Hayes.  I'm from
   District 31, Local 1570.  I feel that this proposal reduces
   protection for the miners.  You are increasing the dust
   exposure level that's contained in the Mine Act, the current
   standards.  This proposed rules dramatically reduces the
   frequencies of sampling by 83 percent.  And you're going to
   change the samples back to bimonthly, six shifts a year.  In
   the out-by areas, one time a year.  
                 The advisory committee, they do not support this
   proposal.  They recommended that we'd have more samples be
   increased, not decreased.  This proposed rulings are not in
   the best interests of the coal miners, and I feel that it's
   undercutting the protection for the miners.  That's all. 
                 MR. NICHOLS:  Thank you, Chuck.  Our next
   presenter will be Tom Sutton, also with the United Mine
   Workers of America.
                 MR. SUTTON:  Good morning.  My name is Tom
   Sutton.  I'm from Local 1248, United Mine Workers safety
   committeeman.  The advisory committee was formed for a
   reason.  Most importantly, two of those representatives were
   miners.  They made recommendations on this, but weren't
   followed.  I don't understand why.  They recommended that
   the sampling be increased, not decreased.  You decrease it
   by 83 percent.  They didn't call for the elimination of the
   operator sampling.  Think it over.  One shift for out-by
   workers.  I'll never understand that one.  
                 There's a lot of other work that takes place in
   a coal mine than mining coal.  One of the things that was
   brought out by Brother Leon was the cutting of overcast. 
   We've had lengthy discussions on this.  More dust, less
   ventilation, no sampling.  I don't understand it.  If an
   inspector comes without an AR card, there is no monitoring. 
   We're not represented.  That's it.  You got to reconsider
   this thing.  That's all. 
                 MR. NICHOLS:  Thank you, Tom.  Our next
   presenter will be Chuck Brant, also with the United Mine
   Workers of America. 
                 MR. BRANT:  Good morning.  My name is Charles
   Brant and I'm the chairman of the safety committee at the
   Dilworth mine.  Since it's been laid in my lap here in the
   past week, and I've listened here to a lot of my fellow
   miners on their comments, I have some of the same comments
   to make on the Airstream helmets.  I have to answer to a lot
   of my fellow miners at the mines, and from what I've read
   out of this, I'm not a Philadelphian attorney, but it's
   we're going do this and we're going do that.  But what I
   seen here is, the main thing and some of the things that
   I've been asked at the coal mine is why I'm not sampled. 
   Aren't I considered a coal miner?  If I'm drilling on an
   overcast, I'm drilling in rock, why I'm not personally
   sampled.  If I'm shoveling belt, why doesn't MSHA sample me?
                 They only used to, the miners did it on the
   production units.  Well, it's going to be sad for me to go
   back to these guys and tell them, yes, I got you an answer. 
   MSHA wants to cut sampling.  I don't know.  I haven't been
   in this this long, but I've been a coal miner for quite a
   few years.  I've worn the dust screen helmets.  Do they cut
   dust?  Yes.  But you can't put us in more concentration of
   dust with these helmets.  
                 I know myself as a coal miner, when I wore one
   of these as a sheer operator, I changed my filter every day
   at the beginning of the shift and at lunch time.  And when I
   come outside and blew my nose, there was still dust
   concentration in my nose.  I don't know what it's going
   take.  I've seen my, a few of my older uncles die of black
   lung.
                 Somebody said that, who makes these laws.  I
   don't know who makes these law.  Like I said, I'm not a
   Philadelphian attorney.  I don't know, some of the people
   that come up with some of these laws never worked in the
   coal mine.  But my final thing here is today is we don't
   need to cut dust samples.  We need more of it.  Thank you. 
                 MR. NICHOLS:  Thank you, Chuck.  Our next
   presenter is Larry Kuharcik.  I may have butchered your name
   there, Larry.  Also with the United Mine Workers of America.
                 MR. KUHARCIK:  Good morning.  My name is Larry
   Kuharcik.  I'm chairman of the safety committee, Local 1702,
   United Mine Workers of America.  Before I get started, sir,
   I believe I can clarify something that I believe you said. 
   When Mr. Taylor was up here, you said you never heard of a
   company denying miners rights if an inspector didn't carry
   an AR card.  Is that correct?  Did I hear you?  Is that the
   statement you made?  
                 Well, I am standing proof in front of you, and
   the inspector's sitting in the crowd with us today.  I was
   with him in the coal mine.  He was already in the coal mine. 
   The company was informed he did not have an AR card.  I was
   called and told that my rights were denied unless I put
   myself on union business, my pay would be sacrificed and
   that the coal company wasn't responsible for my miners'
   rights, because he didn't have an AR card.  So that is true. 
   We do not get to escort an inspector without an AR card to
   have miners rights.  
                 Okay.  Since I clarified that, you know I read
   this proposed rule.  I read the preamble.  And the only
   thing I could ask myself is why?  So many things in the
   preamble was recommendations by the advisory committee was
   not put into the rule.  One thing I want to talk about is
   engineering control.  Engineering control, I'm here to tell
   you, can work.  Engineering control does work.  I work at
   Consolidation Coal Company's Blacksville Number II mine, and
   working closely with Mr. Pawnshrof  in dust control with
   MSHA, several longwall panels ago, we had a drastic change
   in our air velocity.  Our air velocity was raised to 650 CFM
   at number 10 shield and 460 CFM at the tail.  Our panel was
   halfway out of the coal mine at that time.  
                 Consolidation Coal told us, I heard statements
   made to me, they're going to shut our mine down.  We cannot
   do it.  We cannot maintain these air velocities.  When we
   get to the new two mel. panels, we're done.  Well, you know
   something?  We've been through several two mel. panels.  We
   have never had a problem.  Engineering controls do work. 
   They can work.  In fact, last week, I was up on that
   longwall face and I had over 700 650s required.  So they
   proved to us that they can make engineering controls work.  
                 And that's leading me into this Airstream
   helmets.  Sir, I respectfully disagree with you.  To me, it
   sounded like you were downplaying the fact that this is only
   going to pertain to a few individuals behind a sheer.  Well,
   those individuals need protection as much as everybody else
   in that coal mine.  To raise the 2 to 4 for those
   individuals is ridiculous, in my opinion.  It's uncalled
   for, because we're going to put helmets on these few
   individuals, they have lungs and lives like the rest of us
   in this coal mine.  They need protecting.  
                 We should never, I cannot believe it, a few
   years ago, I'm sure many of you may have heard, a
   well-respected company doctor made a public statement,
   "there is no longer black lung in our nation's coal mines." 
   That was in the newspapers.  So that's the attitude the
   companies have.  That told me that right then, when their
   doctor says there's no longer black lung.  And by MSHA
   saying they want to raise the milligrams for even if it's a
   few , as you say, miners, is absurd. 
                 I did some research.  At the Blacksville Number
   II coal mine, Local 1702, just in the last 10 months since
   September the 27th of 1999, 26 -- these are your forms,
   filed with the U.S. Department of Labor by the coal mine --
   26 of my fellow miners have traveled to Charleston, West
   Virginia, and have been diagnosed with the dreadful disease
   of black lung.  In the past 10 months.  26 of them.  The
   average age of these 26 miners -- this is scary -- is 49
   years old.  
                 And yet MSHA tells me that they want to raise
   the milligrams of dust.  Once again, sir, even if for a few,
   I'm exposing them to this black lung disease.  Now that's
   not acceptable.  That's uncalled for.  I don't know where
   MSHA's coming from on this. 
                 I was going to go on to the 103 (f) but Joe did
   that pretty well, and I heard your explanation to him.  So
   in closing, I want to tell you, whether it was budget cuts,
   MSHA department downsizing, no matter what the cause was,
   the United Mine Workers has always backed MSHA.  And the
   United Mine Workers did not, and let me repeat, we did not
   back MSHA expecting any favors or special things down the
   road.  We backed MSHA because it was the right thing to do.
                 Now I'm challenging this board to do the right
   thing, and that is to go back to the table, sit down at the
   table, rewrite this proposal and incorporate the
   recommendations made by the advisory council to protect
   every man and woman in this country's coal mines.  Thank
   you. 
                 MR. NICHOLS:  Larry, do you want the reports you
   had put in the record?  
                 MR. KUHARCIK:  Yes sir?  
                 MR. NICHOLS:  Do you want the reports you were
   referring to or had in your hand?  Do you want those as part
   of the record?  
                 MR. KUHARCIK:  Yes sir.  I made you a copy, all
   those, I'm sure your agency has it.  But the coal mine must
   admit them to you. 
                 MR. NICHOLS:  Okay, let's --
                 MR. KUHARCIK:  These are the 26 in the past 10
   months. 
                 MR. NICHOLS:  Okay.  Let's --
                 MR. KUHARCIK:  And I have many, many more, but I
   thought that went far enough, 26 in 10 months, ridiculous. 
                 MR. NICHOLS:  Okay, let me, while you're up
   here, let me say again, the agency's position on personal
   protective equipment.  It is the agency's desire to never,
   never have to have a person use personal protective
   equipment, that the entire dust concentration problem can be
   engineered out.  And that will be, that's a high standard to
   meet.  That will be the discussion that takes place first. 
   If the problem cannot be engineered out for the people
   farthest downwind, it is not our desire not to, not to have
   these people protected in some way.  And that's where the
   consideration of personal protective equipment will come
   into play. 
                 MR. KUHARCIK:  I understand that, but my point
   was when a coal company can petition you and say we have
   exhausted all engineering controls and we got to have these
   Airstream helmets, I told you about our velocity but raised
   and they told us that they could never do it, and they did
   it.  They do work.  Engineering controls work, and we should
   go use the helmets, but do not raise the level of milligrams
   for the person using the helmet.  I can't accept that. 
                 MR. NICHOLS:  Okay.  All right.  Let's use the
   example you gave that I'm petitioned as the administrator
   for the use of Airstream helmets.  First thing I would do
   would go back and talk to Tim Thomson, the district manager
   and Paseroff and get their feedback on whether all
   engineering controls have been exhausted.  If they tell me
   no, then request denied.  One other commenter said we ought
   to have a meeting and discuss this before the approval for
   Airstream helmets is granted.  
                 I can guarantee you there'll be a lot of
   meetings and discussions on whether there are any other
   engineering controls that can be applied to these -- these
   people working downwind. 
                 MR. KUHARCIK:  Well, my belief is today's day
   and age and technology, engineering controls, there's
   something out there we can do.  If we tighten the curtains,
   if we make sure the stopping line is proper, if we do
   everything we're supposed to do, engineering controls will
   take care of the problem.  We proved it at Blacksville when
   we raised it to 650 and we was told absolutely no way, and
   we're doing it easily.  And so the Airstream helmets is not
   an answer and raising the milligrams is not an answer to put
   our people in that exposure.  That's just my opinion on
   that, and I'm standing fast to that.  I don't agree on that
   part at all. 
                 MR. NICHOLS:  Okay.  Thank you.  Our next
   presenter is Wayne Conway, also with the United Mine Workers
   of America. 
                 MR. CONWAY:  Ladies and Gentlemen, my name is
   Wayne Conway.  I'm the safety committee person for Local
   9909.  You know, I was under the understanding that MSHA was
   actually going to take this program over.  That you really
   weren't comfortable with the way the companies were taking
   care of their sampling process.  Well, I'm not comfortable
   with what I've read, or should I say what I've tried to
   read. 
                 To me, it was kind of was maybe we spent more
   time on the format, setting this up so we could be confused
   versus actually finding some data to support we only want to
   do one sample out-by.  Because it's actually, is it safe for
   me to believe that MSHA believes that people that are out-by
   aren't exposed to dust?  You know, there seems to be maybe
   kind of like a lapse in time, that we're still going back to
   where the belt lines are short and they're small.  We're
   dumping into coal cars.  Only the top portion of that coal
   car is actually being exposed to people as it crosses the
   mine. 
                 Well, I'm here to tell you that these belt lines
   are a lot faster, a lot bigger, every piece of coal that's
   mined by in-by people is being exposed to out-by people. 
   We're all on intake now.  We're talking about miles of belt
   line now.  And these miles of belt line have to be
   maintained.  
                 And I'm kind of curious, was there ever a
   mine-to-mine survey done, if nothing else, just using a
   Fireboss books to determine how many shifts people are
   dragging belts, how many people are shoveling belts, how
   many people are dragging returns, how many people are doing
   nothing more than track bolting, track cleaning.  I'm just
   kind of curious.  Was there any type of survey to that
   effect?  
                 MR. SCHELL:  I can tell you what we did look at
   is the number of violations that have been issued both on
   operator samples and on MSHA samples out-by.  And the reason
   that we proposed at least -- and the way we proposed that
   was we would sample those at least once a year.  The number
   of violations that are issued on out-by DAs are very, very
   small.  I think less than 20 a year.  Another point I wanted
   to make, that didn't mean that we were only going to sample
   the out-by DAs.  It would still be our policy to sample
   out-by areas and only, you know, the way the procedure is
   now, once we find high levels of dust out-by, the operator
   is required to incorporate that DA into their plan and then
   it's sampled.  We would continue to do that. 
                 MR. CONWAY:  But the word "designated" is kind
   of what troubles me.  There's no set format on how we're
   planning on sampling out-bys.  It says nothing more than
   "designated," which means actually nothing to me. 
                 MR. SCHELL:  Okay, well the "designated" is the
   same interpretation we have that now.  That's where we've
   already identified that as a dust-generating source and the
   operator then is required to list that in their plan as a
   dust-generating source.  We would be required to sample that
   at least once a year.  And then, in addition, we'd be
   sampling other out-by areas.  And if we found those to be a
   problem, the operator would have to include those in the
   plan.  
                 So if your concern is that that may not be
   frequent enough, that's a valid comment, and that's
   something we need to consider.  But we wanted you to know
   the reason that we said once a year was, we do issue
   relatively few citations at those out-bys, but your comments
   on our frequency are something that we need to consider. 
                 MR. CONWAY:  Yeah, because, you know, the amount
   of people that it takes to actually maintain belt lines in
   today's coal mines is almost as great as the people who are
   working at the face.  Engineering controls for those type of
   people, spray bars every mile apart.  But you know if that's
   still a little bit too dusty, go ahead and order this
   respirator.  It's not going to help you, because we don't
   have to pit-test you for it, but take it anyway while you're
   dragging.  And that's the type of thing that the out-by
   people are working in.  
                 And like I said, there are so many more of them
   now then ever before, because like I say, we're being
   actually exposed to every piece of coal that's mined at that
   face.  By the time it gets outside, someone has to maintain
   this.  Like I say, there are just not enough people being
   tested, because your actual continuous monitoring could be
   established through the whole coal mine.  Let's not just
   talk about face.  There's no reason why it can't be done.  
                 Another point is I'm kind of curious, was there
   any survey done on the actual out-by people that are
   receiving black lung benefits or has received black lung?  
                 MR. SCHELL:  Not that I'm aware of. 
                 MR. CONWAY:  I think you'll find that the bulk
   of those people are out-by people.  The last three people
   from my mine alone were out-by people, have never ever spent
   not one day at the face other than maybe having to go and do
   some out-by work.  The reason I say it is my wife was one of
   them an she received 10 percent. 
                 MR. SCHELL:  Well, that's a fair comment.  We'll
   look at that data. 
                 MR. CONWAY:  Like I said, it's not that we do
   not appreciate what your overall intent is, but we're going
   to have to live with this probably another 20 years before
   it's ever looked at again, so we need, you know, all the Ts
   crossed on this thing.  Are there any questions?  
                 MR. NICHOLS:  I don't think so.  Okay.  Thanks,
   Wayne.  We're about halfway through the list of folks that
   signed up and wanted to present testimony.  I think we're
   going to work straight through lunch, because I know some
   people need to either travel back and get to work or just
   travel back to their -- some distance to their homes.  So
   how about if we take a break now until about 11:25, and
   let's try to get back on time and get seated and kind of
   quiet down so we can get started back on this hearing. 
                 (There was a brief recess.)
                 MR. NICHOLS:  You know we announced to the
   hearing this is going to be very difficult to determine when
   single shifts started and plan verification took over, so I
   need to do one thing here, if you'll bear with me.  My
   attorney tells me I need to read a piece into the record on
   plan verification so I'll do that and you can continue to
   testify on both as we said earlier, this seems to be turning
   out to be one hearing, so, which is fine with us, but I do
   need to read one statement on the record. 
                 The plan verification proposal indicates that
   One, MSHA should take full responsibility for all respirable
   dust sampling for compliance purposes; Two, MSHA should
   verify ventilation plans at typical production levels and
   Three, MSHA should require operators to record production
   levels and dust control parameters to monitor dust levels. 
   The MSHA rule would do all three things.  Under the plan
   verification proposal, all the existing requirements in our
   regulations at 30 C.F.R. 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
   reduced 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 proposed rule 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
   eight-hour equivalent measure, even if the work shift is
   longer than eight hours. 
                 In addition, under the proposal, only MSHA
   samples would be used to establish a reduced standard in
   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
   feasible engineering controls cannot maintain respirable
   dust levels at or below applicable standards.  Coal mine
   operators must first request that the Administrator for Coal
   Mine Safety and Health determine that all feasible
   engineering controls are in place.  If so, MSHA would grant
   the operator interim ventilation plan approval.  However,
   the operator must implement any new feasible engineering
   controls which might become available. 
                 So we'll continue with the list of those folks
   that have signed up to testify.  The next present will be
   Jack Rhinehart, also with the United Mine Workers of
   America. 
                 MR. RHINEHART:  My name is Jack Rhinehart.  I'm
   a 23-year veteran of Consol Black II mine.  I served there
   for Local 1702 as a safety committeeman for 12 years,
   chairman of that committee, and also as president and vice
   president of that local.  I now serve in District 31 as a
   board member for District 31 for United Mine Workers of
   America.  I had four key points that I'd like to bring to
   you today and a summary of these issues.  
                 One, this eliminates the entire compliance
   sampling requirements in part 70 and 90, with no replacement
   for compliance sampling; two, drastically reduces the
   frequency of shifts sampled for respiratory dust compliance. 
   This would be six times for miner sections, one time a year
   for the out-by workers, such as masons, beltmen.  These
   gentlemen are exposed to dust also; three, would increase
   the dust exposure level above those contained in the Mine
   Act and current standards from 2 milligrams to doubled at 4
   milligrams on the longwall face.  Gentlemen, black lung is
   still a killer in the coal industry; four, prevents mine
   operators to replace engineering controls with respiratory
   protection or administrative controls on longwalls, which is
   prohibited by the Mine Act. 
                 Gentlemen, in my office, daily we have retirees
   who come in, and when they come in, they're carrying oxygen. 
   These gentlemen worked long and hard, and some of these men
   never received any benefits from black lung.  Thank you. 
                 MR. NICHOLS:  Thank you, Jack.  Our next
   presenter is Danny Clark, also the United Mine Workers of
   America. 
                 MR. CLARK:  This is a surprise.  I didn't really
   realize that I was on the list, but basically it's the same
   thing as what other people have been pointing out to you. 
   One of the main concerns that we have at our mine -- I work
   at 84 mine and 1197, and our full shift sample is only 480
   minutes, which doesn't work.  If you're in there for a
   12-hour shift, that's a lot more than 480 minutes, and
   you're not getting an accurate reading.  I guess that's
   about it.  I'll let somebody else go.
                 MR. NICHOLS:  Thank you, Danny.  I can't make
   out the next name.  Is it Tim or Jim?  Okay.  Come on up. 
   Which is it?  
                 MR. ROBLACK:  Roblack. 
                 MR. NICHOLS:  Tim.  Okay. 
                 MR. ROBLACK:  My name is Timothy Roblack.  I'm
   the chairman of the Health and Safety committee from
   Cumberland mine.  I've been a sheer operator on a longwall
   for about 11 years.  I've spent countless hours documenting
   the respirable dust program at our mine.  I've also
   participated in numerous meetings management and union and
   MSHA to resolve our respirable dust problems.  I also have
   testified at hearing in the past concerning respirable dust
   rules changes. 
                 The new proposed dust rule change will greatly
   weaken the respirable dust control throughout our nation.  I
   will testify now, as I have testified before, that to
   eliminate CWP, Coal Workers Pneumoconiosis, or black lung,
   an entirely preventable disease, we don't have to isolate
   some strange gene or identify some unknown chemical.  We
   know the causes. 
                 To eliminate the causes of CWP is to eliminate
   CWP, pure and simple.  Good and enforced respirable dust
   rules will do that.  Despite the mountains of paperwork and
   information I've received on this subject, the dust rules we
   need are elementary school simple.  They are as follows:
   Dust sampling must be portal to portal, regardless of shift
   length.  At our mine, our longwall and sections run shifts
   that can be eight, nine, 10 or even 12 hours.  Respirable
   dust sampling must continue at its current rate or increase. 
   Anything less is a reduction in our protection.  
                 MSHA must be allowed to single sample dust
   levels to spot check the levels of protection afforded to
   our miners.  For example, about four years ago, our longwall
   was out of compliance.  They did two sets of compliance
   samples.  Finally, it came into compliance, but it was a
   very low reading of .9 percent average.  MSHA came in and
   made a single sample and their average was 1.9. 
                 If MSHA had not stopped production and checked
   the dust parameters, we probably would have been out of
   compliance again.  However, no action was taken.  But the
   main concern was the single sample proved that our longwall
   was not dust-free, as we were led to believe from the
   company samples.  And most importantly, the single sample
   prevented a part 90 miner from being assigned to that area. 
                 Safety committees and miners' reps must have
   input over all aspects of respirable dust control plans. 
   For example, we have part 90 assigned to a longwall belt. 
   The DA on this belt is in and out, in and out.  After
   numerous meetings, phone calls, picking up -- plans by
   management, the miners' rep was finally able after a lengthy
   time to get the part 90 miner moved to a less dusty
   atmosphere.  
                 If the miners' rep were not there to have input
   into all aspects of respirable dust plans, this would not,
   definitely not have happened.  A part 90 miner has to have
   all the protection afforded to him under the law.  He's
   already paid his dues to the industry.  The miners'
   representative being present throughout the whole respirable
   dust plans assures this.  
                 Continuous dust monitors.  Extensive research
   and monies have been spent on their development.  The miners
   believe this is a useful tool whose time has come.  We
   believe this tool is useful, not for a compliance issue but
   to spot problem areas so they can be addresses as soon as
   possible.  The sampling tools used today are the same basic
   tools used since 1969, 31 years ago.  It takes about 10 days
   to obtain the results of a sample, delaying identifying
   problem areas.  No other industry in this country uses the
   same basic tools to identify health hazards that were used
   31 years ago.  
                 Airstream helmets must not be used in lieu of
   engineering controls.  They are not a sealed unit.  They are
   difficult or impossible to use in low height conditions. 
   Their effectiveness is greatly reduced once you bend your
   head over by as much as 60 percent.  It is also unknown how
   the fibers in the filters will affect the lungs as time goes
   on.  
                 Allowing companies to use Airstream helmets in
   lieu of dust controls is a travesty.  I know that from
   previous face experience.  If you have a respirable dust
   problem, you also have a float dust problem.  They go hand
   in hand.  To allow Airstream helmets in lieu of dust
   controls will allow companies to go to 4.0 milligrams. 
   We'll be setting up, in our case, a longwall, for a
   condition -- float dust.  Should ignition occur, a longwall
   would have biblical disaster proportions.  Allowing
   Airstream helmets in lieu of dust controls will place our
   own industry in the same dilemma that we will be in when the
   noise rules take effect. 
                 The companies generally take the easy way out as
   far as noise regulations go, opting for hearing protection
   in lieu of engineering controls, thus placing the industry
   in a pickle come September 13th, 2000.  Allowing Airstream
   helmets in lieu of dust controls will place the coal
   industry in the same type of predicament -- as they,
   management, has placed themselves as far as noise reduction
   goes.  They always try to take the easy way out. 
                 To eliminate CWP is not complicated.  The rules
   need to do this as stated above and must be enforced.  I
   testified to the advisory committee in '96 that the -- and
   the proposed rules as they come down to us now, in kind
   words, are kind of a big disappointment to us in the mining
   industry.  I ask, where is our protection?  Under these
   proposed rules, how can we help our people should they come
   up with a respirable dust problem.  Under these proposed
   rules, we have no way to help our people. 
                 Also, removing any criminal penalties also
   removes any type of leverage we have to ensure companies do
   what is required under the law to protect our miners.  In
   summary, as a kid who grew up in the coal patch, my father
   and grandfather were both miners.  The old-timers in my town
   had a lot to do with raising me.  If you were a good worker
   and you performed good quality work, they took you under
   their wing.  If you didn't, they didn't have anything to do
   with you.  As the saying goes, it takes a whole village to
   raise a child.  I knew that 40 years ago. 
                 The last dozen or so years, I've tried to make a
   difference in our industry.  As I worked on a longwall every
   day, I tried to load as much coal as I could, I tried to do
   it safely, and I tried to leave the place a little better
   than I found it.  As I walked away from our longwall in
   October 1999, I questioned myself, despite my efforts
   towards health and safety on our longwall, did I really
   leave it in better condition than I left it.  
                 You must ask yourselves, if these proposed rules
   are allowed to be implemented, did you leave the industry in
   a better condition than you found it?  One of the reasons
   why I walked away from our longwall in October of 1999
   throughout the course of my employment on the longwall,
   about the last dozen or so years, I lost about 30 percent of
   my breathing capacity.  I'm an avid outdoorsman and I hunt
   in the mountains of central PA every year.  I hunt with
   members from my camp who are retired from white collar jobs
   and are in their mid-60s and they have to wait on me because
   I can't keep up with them due to my breathing difficulties.
                 It's probably too late for me, but I am
   testifying for the man who took my place.  I am still trying
   to leave the place in a better place than I found it so that
   I may be worthy of those that went before me.  I'm here to
   answer any questions.  
                 MR. NICHOLS:  Thank you, Tim.  Our next
   presenter is Mike Caputo, also with the United Mine Workers
   of America. 
                 MR. CAPUTO:  Good afternoon.  First of all, I'd
   like to thank the committee for this opportunity to speak
   here today.  My name is Mike Caputo and I'm a 20-year -- 20
   plus year coal miner, and I'm also a member of the West
   Virginia legislature.  I'm a member of the house of
   delegates.  I'm here for a couple of reasons today.  The
   first, of course, being the health and safety of miners, but
   also as a state legislator I deal with all types of
   legislation, including many mining laws. 
                 So I've had firsthand experience with proposing,
   drafting and adopting rules and regulations to hopefully
   make life a little easier for the citizens of our state. 
   For some time, we as miners have asked MSHA to get involved
   and to help make an unjust, one-sided and what most, with
   maybe the exception of coal mine operators, consider to be a
   totally unfair, unlevel playing field.  The health and
   safety of the miner must always be first and foremost.  
                 We're not asking for anything special.  All we
   want is what we deserve.  That being fairness and equity. 
   But to do this, many things must be mandated by law.  As a
   legislator, it is my opinion that you have failed to do so
   in your proposal.  Other than parts of the plan verification
   and single shift sample language, the rest of the rule is
   quite vague. 
                 As I read the rule, I also noticed that you
   failed to adopt major parts of what the Secretary of Labor's
   advisory committee recommended.  It may be in the preamble,
   it may be in the question and answer section, but it is not
   in the rule itself.  And I can tell you from experience that
   if every T is not crossed and every I is not dotted, the
   rule can and most likely will be challenged in court. 
                 If all of these things are not actually part of
   the rule, the document is not worth the paper it was written
   on.  During our time in legislative session and throughout
   the year, I see many miners come to the state house for
   help.  They need help because their lives have taken a
   drastic change.  They have been stricken with deadly black
   lung disease.  Many can't make it across the capital without
   stopping several times to catch their breath, and most are
   carrying portable oxygen bottles with them.
                 They would hope, as I would, that the whole
   intent of this new rule is to make miners' exposure to
   deadly coal dust less, less than it was and has been in the
   past.  But the rule seems to be going in the opposite
   direction.  The 2.0-milligram standard can now be as much a
   4.0-milligram standard.  Miners are now going to be forced
   to work in a more dusty area by being forced to wear a
   powered air-purifying respirator with a NIOSH-approved
   filter. 
                 Can't you see this is a real problem?  We have
   miners wearing these helmets right now, in my mine, because
   they feel threatened with a 2.0 standard.  Now we are going
   to allow double the dust?  How will this raise the miners'
   confidence?  The other problem is the new NIOSH-approved
   filter.  It fogs up the shield, because it restricts the
   flow of air too much.  
                 So now we will be having miners using cut up
   rags instead of filters.  This will cause a higher number of
   black lung victims passing through Charleston, because
   adequate protection is not being provided properly.  This is
   just one example of the flaws of this proposal.  I believe
   MSHA needs to go back to the drawing board and one, follow
   the advisory committee recommendations and two, listen to
   the miners.  We already have over 1,500 miners dying every
   year from black lung.  That's about one miner every six
   hours, dying the most horrible death that anyone could ever
   imagine.  
                 And I don't know how many of you have friends or
   family that have died from this horrible disease, how many
   of you have sat and talked to those individuals, but if you
   want a real reality check, go into some of the coal mining
   communities, go to some of the black lung clinics and see
   what a horrible last few years of life these individuals has
   had to lead for working their entire lives in the coal
   mines.  That is a reality check.  It's comparable to a fish
   out of water.   And I think if you go back and visit with
   these folks, you'll have a much better understanding of why
   the United Mine Workers have fought for so many years to
   clean up dust in our coal mines.  
                 Again, listen to the miners.  This is a tool
   that is to protect their health and safety.  It is not a
   tool to protect the bottom line for coal operators.  Thank
   you very much. 
                 MR. NICHOLS:  Thank you, Mike.  Our next
   presenter will be Harry Powell, also with the United Mine
   Workers of America. 
                 MR. POWELL:  Good morning, my name is Harry M.
   Powell.  I'm with the safety committee at the Cumberland
   mine, District 2, Local 2300.  Joe Main spoke earlier about
   the confusion that miners have concerning the MSHA proposal. 
   There is confusion.  I haven't read it yet.  I haven't seen
   the whole thing yet.  And nine chances out of 10, whenever I
   do get the opportunity to see it, I still won't understand
   it all.  
                 However, what I do understand and what I do know
   about is when is running a sheer and wearing a dust pump
   pass after pass after pass.  That is where my expertise
   lies.  Being a former assistant fire chief and being able to
   move fire and smoke with water, I said to myself on one of
   those many, many faces up and down that face, surely I can
   move dust the exact same way. 
                 U.S. Steel Mining Company, who owned Cumberland
   Mine prior to Cypress, prior to RAG, had a program which was
   called the Score program, whereas, if you came up with an
   idea that would enhance and increase productivity, you were
   awarded a check anywhere from $1,000 to $15,000.  I came up
   with an idea of controlling dust basically the same way I
   was able to control smoke as a fire fighter.  Our dust
   samples were under 2.0 consistently for a number of passes,
   for a number of samples.  As a matter of fact, I can
   honestly say that I wore a dust pump for weeks upon weeks at
   a time trying to find out how this was done. 
                 What the company allowed me to do, what the
   company allowed the United Mine Workers to do for a very
   brief instant in history, was allow the United Mine Worker
   to control the dust parameters and to have full run of
   modifying and putting any kind of controls on the sheer. 
   What the company did was they went back to the basics.  They
   allowed the person who was running the machine to dictate
   and say where the problem lies.  
                 The first check that I received from U.S. Steel
   was for $9,750.  The general manager and superintendent and
   I and the president of U.S. Steel Mining Company became
   close friends.  We were on a first name basis.  I also had
   the phone number of the president of U.S Steel Mining, call
   me anytime Harry, whenever you want. 
                 I was given an ultimatum.  If the longwall
   stayed in compliance for six months, I would receive another
   check.  Not if you or your crew remained in compliance, if
   the longwall remained in compliance for six months, you
   would receive another check, I was told.  Needless to say,
   my second check was for $6,649.50.  And I have to add that
   Disney World is quite lovely at that time of the year. 
                 The speed limit on most interstate highways is
   55 to 65 miles per hour.  However, some of us, through human
   nature, intend to travel 70 to 75 miles per hour.  Our dust
   levels now are at 2.0.  If they're allowed to go to 4.0, we
   all know how human nature is.  I hope I am not naive in
   thinking that MSHA will protect and watch over miners.  I've
   only been on the safety committee a little over a year.  
                 What I ask is that the dust levels do not be
   permitted to go to 4.0 milligrams, and in addition, that
   dust sampling not be reduced by MSHA.  Thank you very much. 
                 MR. NICHOLS:  Thank you, Harry.  Our next
   present will be Mike Ayers, also with the United Mine
   Workers of America. 
                 MR. AYERS:  Hi.  My name is Mike Ayers,
   A-Y-E-R-S.  I am a member of Local Union 1702, District 31,
   29 years mining experience, 25 years underground.  I had
   some written comments here.  I'm not going to bother to read
   them.  Most of you, you've been hit with the same ones over
   and over.  The one question I have, and reiterate what Joe
   and Mike Caputo said, if it's not in writing, if it's not
   part of the rules, who's going to enforce it?  
                 I've heard Marvin make comments, and Ron, and
   George, how they would do it, but are you going to be here
   forever?  None of you is planning on to retire?  No one
   plans on dying?  We need it in writing.  We need it in black
   and white.  Your answers.  I'm comfortable with your
   answers, but whoever is in control is who sets the policy. 
   If you're gone tomorrow, there may be a different policy. 
   That's all I have to say.  
                 MR. NICHOLS:  Thanks, Mike.  It we put it in
   writing, do we have a deal?  
                 MR. AYERS:  Ask Joe. 
                 MR. NICHOLS:  Joe's shaking his head yes.  Our
   next presenter will be Randy  Bedillion.  I may have
   butchered that name also. 
                 MR. BEDILLION:  It's closer than a lot of people
   get. 
                 MR. NICHOLS:  Okay.  Also with the United Mine
   Workers of America. 
                 MR. BEDILLION:  I've got 25 years in the mine
   this year.  When I started back in 1975 at Valley Camp, of
   course the mining site rules were all different, and I used
   to see this guy standing in that dust and in the last years
   that's went by, even on the wall, I've seen these dust
   parameters drop, which is a plus, and it's due to the
   controls.  And I was going to ask about, I was going to ask
   George that a statement he had made earlier that if a sample
   comes at 1.71 or under, that area's not to be sampled again,
   if it goes beyond the 2.0, that area is to be sampled again. 
   Am I correct on that, George?  It's what you're saying now,
   but where does it say it in black and white that that's the
   way it's going to roll?  
                 MR. NIEWIADOMSKI:  Well, the, the reference to
   the 1.71, that's in the rule and it basically identifies the
   criteria we're going to use to determine whether or not that
   plant should be approved or rejected.  There's nothing in
   the rule, that's correct, that says exactly how is it that
   we're going to be doing compliance sampling, what levels are
   we're going to be citing and what levels are we're going to
   be actually going back to resample.  That's not in the rule,
   that's correct.  That would be in our, which they are, in
   our inspection procedures. 
                 MR. BEDILLION:  And then again, those
   procedures, when the guys that are in charge today go, those
   procedures could change by the next guy coming down the
   line.  
                 MR. NIEWIADOMSKI:  Those procedures could
   change, yes. 
                 MR. BEDILLION:  And another point I want to
   make.  I've seen companies do this, and it's more or less
   like the snowball rolling downhill.  It don't do nothing but
   get bigger.  And I don't feel that our samples ought to go
   beyond the 2.0 to 4.0, because the next thing they're going
   to ask for is 6.0.  And whether we put an Airstream helmet
   on or not, that just gives them a scapegoat, and that's my
   beliefs on that.  
                 I think that's a part of the rule that we don't
   even need.  They can, like Brother Harry said, they were out
   of compliance with their methods, that they have the modern
   technology now and they can get back in compliance.  And it
   don't make my lungs any worse.  That's all I've got. 
                 MR. NICHOLS:  Thank you, Randy.  Our next
   presenter is John Ealy, also with the United Mine Workers of
   America.
                 MR. EALY:  I've got a letter here, which I think
   I'm going to submit to you, okay?  I'm not going to take
   time to read it all.  I've worked at Cumberland Mine now for
   and 23 years, about 24 years underground.  Used to work the
   face, and now I work out-by, spend a lot of time on the
   belts.  I calibrate CO monitors and take care of the AMS
   systems primarily in the mine.  
                 And one thing that's been bothering me pretty
   much all day is the technology, I believe, is there to have
   continuous monitoring systems on the dust control plans. 
   I've been at Brewston with Joe Main and talked to some of
   the people in NIOSH and, like I said, I believe it's -- the
   company had no problem finding a way to have an AMS system
   in a gas-filled environment and moisture and all the other
   rock, dust and salt when they wanted to raise the methane
   level from 1 percent to 1.5 percent in return.  
                 And I believe it's just a commitment that they
   have to make to be able to make that available for us.  And
   like Tim said, it takes quite some time for a dust sample to
   actually come back, where if we could continuously monitor
   this condition, I think we could better control what
   happened to us in the immediate future, you know.  I think
   it's time that we could try to do something like, that's one
   of the areas, I guess, that everybody has said everything
   else I'd like to say, which I don't need to and I'm not
   going to take time to do that, but Tim made also a good
   point there.  
                 Just, you know, talk to yourselves.  I know you
   don't work in the mines, and the black lung is still alive
   and well in the coal mines.  And through all these proposed
   rules, search your soul a little bit and make sure that
   you're leaving it better than it was.  You know, I mean
   everybody has to do it on an individual basis.  I'll leave
   this with you, and thank you for your time.  
                 MR. NICHOLS:  Okay.  Thank you, John.  Our next
   presenter will be Larry Steinoff, also with the United Mine
   Workers of America. 
                 MR. STEINOFF:  Hello.  My name's Larry Steinoff. 
   I work for the RAG company at the Emerald Mine, Wayneboro,
   PA.  I've been here since November 1978.  I'm currently
   employed as a UMWA mine examiner, and I also have my system-
   mine certification for Pennsylvania.  
                 I started my mine career in the Sanford Mine in
   Bobstown in April of 1974 at the age of 19.  In my 26 and-a-
   a-half years of mining experience, I've operated many types
   of mining equipment and have done many different job
   classifications, both at the face and out-by areas.  Since
   I've been at the Emerald Mine, I've spent six and a half
   years on the mine rescue team and also five years on a fire
   fighting team.  I am currently vice president and also the
   chairman of mining health and safety committee for our Local
   Union 2258. 
                 To start with, the proposal dust rules, they are
   very confusing to me, to say the least, and very complicated
   to understand.  I am a miner who needs to understand rules. 
   To start with, MSHA proposed to sample face area people 480
   minutes a shift six times a year, which totals 2,880 minutes
   a year, which is 48 hours per year.  And our out-by people
   only once per year.  As you can tell, I'm not a speaker, I'm
   a nervous wreck. 
                 At our mine, our current work schedule consists
   of 10-hour days six days a week 50 weeks a year.  This
   totals up to 3,000 hours per year, or 180,000 minutes, which
   under the current proposal would leave 177,120 minutes, or
   2,952 hours per year the face people work that are not
   sampled for respirable dust.  At the present time, --
   operators are required to sample face people at least 30
   shifts per year, and under the proposed rule, we don't have
   to.  The MSHA funding for the dust sampling is not even
   guaranteed at this time. 
                 Continuous monitoring systems.  With the push of
   a button on my computer telephone, I can send information to
   any part of the world in a matter of seconds, but they say
   continuous monitoring is not present at this time.  I have a
   hard time believing that we do not have the technology and
   capabilities to do this.  The same way we monitor methane,
   CO and air current in the mine, this needs to be done so
   that when dust levels exceed the legal limits, adjustments
   can be made at that time and not days or weeks later. 
                 The same precautions we currently take for
   ventilation of methane in the mine so that when trouble is
   spotted, it can be handled and corrected.  And I am also
   troubled by the part 90 in the proposed dust rules for our
   miners and that the dust level could be raised from the
   current 1 milligram to 1.26 milligrams.  To protect these
   individuals, the current regulation of 1 milligram should be
   cut in half, and more if needed.   
                 I believe MSHA needs to seek new methods of
   controlling dust in mines.  Engineering controls are not out
   of reach.  The most trouble I see in -- is not maintaining
   what we currently have.  Water spray systems, air current
   and velocities.  Our coal companies spend millions of
   dollars on longwall face equipment and they can produce as
   much coal as possible and make their huge profits and
   bonuses.  I say spend some of the money on controlling
   engineering. 
                 The reason we have the Coal Mining Health and
   Safety Act of 1969 is very clear and simple to me.  Too many
   miners in the course of their employment were either
   injured, killed or suffered long-term effects of float coal
   dust and other hazards and then would die a very slow and
   painful death.  The key issue here is preserving the health
   and the safety of our coal miners.  
                 I've seen a lot of improvements in the mines in
   my 26- and-a-half years as a coal miner, but I believe that
   for the most part that the new proposed dust rule is not one
   of them.  I believe that somewhere along that line that MSHA
   has forgotten the most valuable of all resources, the coal
   miners.  We are currently mining six to seven million tons
   of coal per year, and any way you cut it, that adds up to a
   huge amount of coal float dust.  
                 Miners' representatives participation.  I was
   very concerned about not being able to afford the
   opportunity to represent some 400 coal miners of our mine
   when sampling occurs.  We are elected to serve them as their
   mine health and safety representatives and they not only
   expect us to represent them and to participate in anything
   that could lessen their chance of injury or illness, they
   deserve it.  
                 We are the ones who give this country electric
   power we need for today's demands.  For this, we get
   proposed higher dust regulations and fewer samples taken. 
   In closing, I would recommend that the recommendations of
   the advisory committee appointed by the Secretary of Labor
   to be considered concerning these proposed dust rules,
   because I believe we all want to see the same result.  The
   health and safety of the miners, both men and women, mothers
   and fathers, brothers and sisters, who give this nation our
   most valuable resource, coal.  Thank you. 
                 MR. NICHOLS:  Thank you, Larry.  Our next
   presenter will be Bob Kurczak, also with the United Mine
   Workers of America. 
                 MR. KURCZAK:  My name is Bob Kurczak.  I
   represent the United Mine Workers of America, Local 1570,
   Federal Number II mine, and I'm a member of the mine health
   and safety committee at that mine.  I just want to touch on
   one specific issue, and the reason I'm doing this is I was
   directly involved in the continuous dust monitoring pilot
   program that was ran at our mine. 
                 The continuous monitoring of coal mine dust,
   which would provide instant information on dust levels and
   record dust levels over a long period of time has long been
   a demand of miners.  These devices would provide miners with
   invaluable information on levels of unhealthy coal dust in
   their environment.  With limited dust samples under the
   proposed new rule, this would be vital in recording dust
   levels miners are exposed to. 
                 Results from coal dust samples can take days to
   process.  Instant information is needed so prompt action can
   be taken to control unhealthy coal dust levels.  The
   advisory committee recommended development, testing and
   immediate deployment of such monitors.  The advisory
   committee concluded that continuous monitoring of the mine
   atmosphere and the control of dust parameters offered the
   best long-term solution for improving the existing federal
   program to prevent black lung among coal miners. 
                 Over the past years, machine-mounted systems
   have been developed and tested in a number of mines, and
   which I mentioned, we had a system at our mine.  I will
   admit this, the thing did have some problems, but I was
   assured, I was in contact with the people from NIOSH, and
   they told me that these things could be corrected.  As a
   matter of fact, the government agreed to issue a contract to
   complete the work on this system, and for some reason, MSHA
   and NIOSH did not follow through with this plan.  
                 In closing, I would like to say that the Mine
   Act gives MSHA the authority to issue technology-driven
   rules.  It is clear that if MSHA does not issue such a rule
   requiring these devices, they will never get into the coal
   mines.  Thank you. 
                 MR. NICHOLS:  Thank you, Bob.  Our next
   presenter is Chuck Hayes, also of the United Mine Workers of
   America.
                 UNIDENTIFIED SPEAKER:  He did his earlier. 
                 MR. NICHOLS:  Okay.  Then our next presenter
   will be Nancy Dorsett, and my note says WVA. 
                 MS. DORSETT:  I'm going to sit here, because
   I'll never reach that microphone.  My name's Nancy Dorsett. 
   I'm a graduate student at West Virginia University in the
   department of mining engineering.  I also spent 18 years
   working underground, five of them on a longwall.  Necessity
   is the mother of invention, and if we do not demand
   engineering technology, it won't be produced.  If we give
   the operators a way not to improve technology, then there
   will be no demands from the operators to the mining vendors
   to improve levels of dust, water control, design and
   shields.  
                 And we have run into that problem with the
   hearing rules and the noise rules.  By allowing personal
   gear to go in the place of engineering technology, we have
   set back noise control in the underground coal mines.  The
   stone and quarry people are much further ahead of us in
   noise control.  So if the operators cannot -- do not demand
   that the vendors change, then there will be no change, there
   will be no new technology, and we'll all be wearing
   Airstream helmets before long.  Thank you. 
                 MR. NICHOLS:  Thank you, Nancy.  Our next
   presenter is Red Knicely, also of United Mine Workers of
   America. 
                 MR. KNICELY:  My name is Red Knicely.  I'm a
   25-plus-year coal miner.  Ladies and Gentlemen, I know what
   black lung is, seeing as to how my grandfather, father and
   three uncles were lost to this disease.  For you all to cut
   sampling to six times a year, when we produce coal at our
   coal mines an average of 900 shifts a year, we produce coal
   around the clock six days a week.  
                 The conditions change hourly when we're
   producing coal.  Barometric pressure, temperature, you know,
   we can't control it within eight hours, and you're telling
   me that you're only going to sample it six times a year. 
   That's not acceptable.  We're going backwards.  Is somebody
   going to be standing here in favor of you 30 years from now
   talking about me succumbing to black lung?  No, I think not. 
    
                 Those changes that you're proposing diminish the
   protection miners already have.  So like I said, black lungs
   is going to be on the increase instead of the decrease.  We,
   the miners, have been trying for years for more
   participation in the dust sampling program.  The miners
   being the ones that suffer and fall victim to black lung, we
   should have input, but the rule contains no standard
   providing miners' reps with increased rates in this
   procedure. 
                 You all said that we could travel.  If an
   inspector does not have an AR card, we have no rights.  This
   is, I'm talking at the union mines.  Nonunion mines are even
   less.  We have a NIOSH investigation going on now at our
   coal mines, you know, for different stuff underground that
   we feel is harmful to us.  We cannot even travel with them,
   Ladies and Gentlemen.  I have to remove myself, put myself
   on union business to be able to travel with them. 
                 The miners have been asking for continuous dust
   monitoring.  The rule contains none.  The advisory committee
   recommendation number eight called for this rule.  In
   closing, all one has to do is visit the hospitals, the
   clinics within the coal fields to see what coal dust will do
   to a man and his family.  To go back -- we need to eliminate
   black lung.  Thank you. 
                 MR. NICHOLS:  Thank you, Red.  Let's break until
   12:30.  That's 10 minutes. 
                 (There was a short recess.)
                 MR. NICHOLS:  Okay.  Let's get started back. 
   Our next presenter will be Rick Altman, also with the UMWA. 
   Is Rick in here?  Rick Altman?  . 
                 MR. ALTMAN:  I'll be brief.  I just have a
   couple questions.  On what is it, number six I think, on the
   faces, if they can't come into compliance we'll go with the
   air helmet.  Has anybody given thought to, let's say this
   goes on for a couple panels. 
                 UNIDENTIFIED SPEAKER:  They can't make it. 
                 MR. ALTMAN:  They can't make it.  Once again,
   they're granted the air helmet.  Over here on another part
   of the mine, they have it mapped out for a 1000-foot face,
   10,000 feet long.  Now, they've got to submit a plan for
   that.  Is there any reason why that plan would then be
   permitted.   If they can't meet the requirements at this
   point in time, why would a plan then be granted if they
   can't meet the parameters.  Would it be?  Or I guess my
   question is would it be granted?  
                 MR. NICHOLS:  I don't seem to be having any luck
   with Airstream helmet issue.  Do you want to try it?  
                 MR. SCHELL:  You know, our initial sense was
   that we were going to push engineering controls as far as we
   could.  Only if engineering controls, only if they had all
   been implemented and didn't work, would we go to either
   administrative controls or recals (phonetic).  If that goes
   on for some period of time, I think it may likely be that
   the agency would consider things about production.  
                 But that would not, the way we structured the
   rule, production was not one of the initial considerations
   that we made in terms of whether you would go to
   administrative controls or to recals.  So that may be
   something we need to consider.  So your comment's well
   placed, but I would think after some period of time, that is
   something we'd have to consider. 
                 MR. ALTMAN:  Well, my reasoning for this is
   nobody submits for a shortened face.  Everybody submits for
   a longer one and further out, right?  A deeper panel, a
   longer panel.  How many of these mines that have submitted
   for a longer and deeper panel have subsequently submitted
   that they can no longer meet these requirements and want the
   Airstream helmets?  Do you know?  
                 MR. SCHELL:  Not many, I'm sure. 
                 MR. ALTMAN:  Apparently there must be some,
   because there's a heck of a lot of people using them
   apparently.  And when I read it, I was reading about the
   epidemiology studies, there's really not a whole lot on that
   in what you gave out, and there's -- you can't find it on
   the Internet. 
                 MR. SCHELL:  Restate your question.  Maybe I
   missed your question.  That you just stated. 
                 MR. ALTMAN:  Oh, the studies?  What you have, or
   what I received, I'm sure that's not the complete study.  I
   mean the excerpts that you gave us, I'm sure that's not the
   complete study.  Is that correct? 
                 MR. SCHELL:  That's correct. 
                 MR. ALTMAN:  I couldn't find it anywhere to be
   able to get the complete study.  And I'm sure really that
   there should be good reasons that we should be able to look
   at those also.  A lot of people here today, here's the sad
   part.  Scientific background, technically we don't have.  We
   are the guinea pigs, we are the rats.  We are.  Except we
   stand upright.  And I've sat through I don't know how many
   of these.  I've listened -- and I think you were down here
   in Morgantown a few years ago on the diesel regs.  I think
   you were there. 
                 MR. SCHELL:  I don't think I was. 
                 MR. ALTMAN:  Okay.  Well, I apologize.  And
   here's, here is, I guess the part that infuriates me the
   most.  We come down and we say what we think we feel we
   know, okay?  They're not a person here that's got an M.D., a
   Ph.D.  Well, maybe there is, I don't know.  Okay, I take
   that back.  
                 We are the best case studies in the world.  Time
   and time again we fall on deaf ears.  We fell on deaf ears
   during the diesel.  What do we know?  We're dumb coal
   miners.  We're not that dumb.  Now here we are once again.  
                 There's no operators.  I have yet to hear
   anybody from any coal operator come and speak dot.  They
   have said nothing.  So if nothing is said, I take that as a
   good sign that they think this is basically pretty good.  
                 What you hear is, from the people here, and
   we're telling you that this kills us, okay?  It kills us. 
   And I'm not a betting man, all right?  But I'll bet this. 
   I'll bet this falls on deaf ears, and I'll bet nothing goes
   on and I'll bet we'll die.  I'll look around this room, and
   there will be people here that I have worked with, people
   here that I have met, people here that I call friend, and
   they're going die if you people right here, Alan, Ron,
   Larry, everybody else, Rebecca, don't finally step in and
   say, look, these are the people that we have to protect.  
                 And I have yet to see that happen in a very long
   time.  And I'm not brand new out of the gate.  I've been
   around long enough.  If the operator says we want a longer
   panel, if they can't meet the air, stop it.  It's a done
   deal.  If they're out of a job, we're out of a job, you're
   out of a job.  It's that simple.  We're all out of a job. 
   Nobody wants to be out of a job, but nobody wants to die.  
                 You're in an office.  We're underground.  You do
   the studies.  We do it real life.  We deserve, really, for
   once, to be heard, to be recognized and for the things that
   are said and the things that are done to be put forth as
   credible evidence, and we'll never get that.  That's really
   all I've got to say, other than really, like, for once, give
   us a break.  Thanks. 
                 MR. NICHOLS:  Okay.  Thank you.  Dennis O'Dell
   has asked to give additional testimony, and he can do that,
   so Dennis, come on up. 
                 MR. O'DELL:  Good afternoon.  My name is Dennis
   O'Dell.  I am an international health and safety
   representative for the United Mine Workers of America.  I
   have 25 years experience in mining.  In 1996, I stood before
   you and spoke as a rank and file miner.  Today, I stand
   before you and speak as a representative on the
   international staff. 
                 I would like to thank the committee for this
   opportunity on what I believe may be one of the most single
   most important issues that deal with the miners all across
   this nation.  We, meaning miners, who are under the
   jurisdiction of the Department of Labor Mine Safety Health
   Administration have always been very grateful for the
   protection that your agency has had to offer us.  By far, we
   know that we are blessed with what is known throughout the
   world as probably having the safest coal mines to work in. 
   And a lot of this should be, and is, credited to your agency
   and the inspectors who are on the ground every day trying to
   enforce the code known as C.F.R. Part 30 which is used for
   protecting miner safety. 
                 With saying that, it also needs to be pointed
   out all of us -- when I say we, I speak of everybody in this
   room -- have missed a part of the Act somehow in failing to
   protect the health of the miners.  Miners today are still
   dying, not just from roof falls, fires, explosions or other
   mine-related injuries, but miners are still dying of
   health-related illnesses such as black lung. 
                 I truly believe that you were trying to do
   something somehow to fix this by producing this proposed
   rule that we have before us, but unfortunately it's fell
   short in getting done what you've attempted to do.  This
   proposal, as you've heard today by many who have testified
   before me, is considered to be quite complicated and
   considered to have fell short of the mark.  Many people, for
   example, the miners, lawyers, representatives and the
   general public are not really sure as to what it says. 
                 To further complicate the issue, there was a
   limited time to digest and to try and understand exactly
   what you are saying with this proposed rule.  The biggest
   most single question I keep hearing is what is the actual
   rule and what is just preamble or Q and A's?  What is
   enforceable, what is not?  The preamble addresses a lot of
   things but, as we are all aware, inspectors, the very guys
   that are on the ground trying to enforce the law, cannot say
   to preamble.  Judges will and will continue and have implied
   that if it was intended by the law, then why wasn't it made
   the law. 
                 Does anyone in this room remember what happened
   with the new ventilation regs.  Do you remember the nice
   little blue Q & A book that was given to everyone.  Well, it
   ended up being nothing more than just a document used for
   bathroom reading.  That's about all it become worth.  It
   wasn't something that could be used for enforcement.  Has
   anyone in here ever seen a citation using the blue Q & A
   book in the body of the citation as to what the company
   violated?  And I think you'll find the answer is no. 
                 That's what I not only fear but what I know will
   happen with this new proposed dust rule.  Another need is to
   fix the exposure limits.  We went from a mindset of asking
   for a 1 milligram standard four years ago to now giving up a
   2 milligram standard and possibly allowing as high as a 4
   milligram standard.  We asked for samples to be taken for
   entire shifts at the 2 milligram standard, and you gave us
   an entire shift sample with a 2.3 milligram standard, we
   think. 
                 And the flexibility for the operator to be in
   excess of 115 percent of the quantity specified in the plan,
   and to allow exceeding the production levels as specified in
   the plan by 32 percent.  And if I read it right, it's not
   until 33 percent of the production shift's exceeded that
   triggers a new plan verification, which I may add, is at the
   discretion of the MSHA district manager.  Where are the
   gains for worker protection here?  
                 Another point.  Once the operator submits his
   plan to the district manager, the district manager will give
   the operator what is called a provisional plan approval to
   operate under until such time as an MSHA inspector can come
   to the mine and sample.  We have over 700 plans that will
   have to go through this process, so it's going to be a while
   before they can get to all these mines.
                 Then, MSHA will call the operator and tell them
   the day and the time that they will be on the property to
   sample, which to me, is prior notification, no matter how
   you look at it.  Why?  If the field offices have all this
   collection of data on a mine in their districts, based on
   past history of dust sample inspections and the district
   manager feels comfortable giving a provisional plan approved
   by telephone or e-mail or whatever -- you get the picture --
   and it's okay to operate under this plan until MSHA can
   sample, then please answer in my maker's name, why do you
   have to notify the company you're coming?  
                 You tell us on one side that this is the best
   thing since the creation of sliced bread, yet you don't feel
   comfortable enough to go to the mine unannounced with the
   very thing that you've approved.  But I don't know why that
   would be a problem, because, guess what, on the date of the
   verification sampling and the operator doesn't have in place
   what he has submitted, it's no biggie, because one, he can
   adjust his parameters at that time or two, he can make no
   adjustments.  In other words, whatever it takes for the
   operator to comply on that date, he is going to be allowed
   to do.  And it doesn't matter, because MSHA is not going to
   cite the operator.  
                 MSHA's just going to let them try it over again
   until they get it right.  I'll tell you, this type of brute
   enforcement would really scare Mr. Profit Coal Company to
   shake in his shoes.  And you'll have to forgive me, but I
   stole that quote from my 11-year-old daughter when I
   explained this part of the proposed rule to her. 
                 Now what about the miners' participation?  Do
   you realize that right here in Morgantown, West Virginia,
   just across the hill, we're in a dogfight at this very
   moment at Consol's Leverage Mine to have 103(f) walk around
   rights recognized for the mine fire investigation?  In 1997,
   MSHA came out with some inspection codes,  for example, AFD,
   that aren't clear as to if we have walk around rights or
   not.  We believe we do, but we're awaiting a more clearly
   defined answer by a higher authority. 
                 The bottom line is the company said we don't and
   MSHA's not sure.  Does anyone in this room think that the
   operators won't challenge our participation on this rule? 
   They've already stated publicly that they think we don't
   have the right, and why shouldn't they challenge it?  It's
   mentioned in the preamble, but it's not mentioned in the
   rule.  This needs to be fixed before a rule is released so
   that there is no mistake to the so-called intent. 
                 You need to address all the miners' activities
   the advisory committee has recommended, such as the
   verification visit, where miners and the rep should have the
   same paid 103(f) walk around rights.  The miners'
   participation in the interim of the operator dust sampling
   program.  That should be increased to provide assurances
   that a credible and effective dust sampling program is in
   place.  
                 Miners designated as representing the miners
   should be afforded the opportunity to participate in all
   aspects or respirable dust sampling for compliance at the
   mine without loss of pay, as provided by the section 103(f)
   in the Federal Mine Act.  Miners reps should also have the
   right to participate in dust sampling activities that will
   be carried out by the employer for verification of dust
   control plans at no loss of pay.  Miners reps should also
   have the right to participate in activities involving any
   handling of continuous dust monitoring devices or extraction
   of data for continuous dust monitoring devices without loss
   of pay.  We need to bring that back. 
                 The point that was raised by the advisory
   committee where miners reps should receive training and
   certification.  That's not been brought up today.  To
   conduct the respirable dust sampling paid by the employer,
   miners reps should be afforded the opportunity to do that
   without loss of pay.  I sat in the back early on, so I'm not
   sure if Mr. Nichols or Mr. Schell have addressed all these
   points that I brought up, so I'm being repetitive on some of
   the things, please forgive me.  
                 A question that comes to mind is that somebody
   had said, if it's in the preamble, that's what the entire
   implied intent was.  MSHA can't write regulations on
   themselves, I heard somebody say.  But I think if you look
   in here, you'll find several places in, or some places in
   part 30 where MSHA does have regulations on themselves.  If
   I'm wrong, please correct me. 
                 The Airstream helmet issue.  I'm curious.  I
   wonder if we're trying to cross a fine line, because it
   sounds like what you're doing is you're going to mandate a
   work practice.  And let me clarify what I mean by this.  If
   we have a miner that's found to be in an area where
   Airstreams are required and he doesn't have that Airstream
   helmet on, will MSHA cite the plan?  And if you don't, it
   leaves -- and if he does cite the plan, it leaves that miner
   open for disciplinary action against the company.  
                 Now that's a two-fold problem, because miners
   sometimes fill in at last minute for other miners on these
   jobs.  So this individual that may have been fine without an
   Airstream helmet may not have been properly trained, may not
   have known, because he's not the regular person that works
   there on a day-to-day basis.  There's been press
   announcements by MSHA that they are taking over compliance
   dust sampling programs.  
                 Exactly where in the proposed rule is that
   standard that miners can read?  What legal and finding
   guarantee exists to ensure miners that MSHA will be doing
   the compliance sampling they say they will be doing?  Since
   MSHA has stripped the entire compliance dust sampling
   procedures from the rule, then how are miners supposed to
   know what the rules are?  Why has MSHA no rule to conduct
   compliance by monthly samples for the full shift?  What is
   the production level required on the MSHA -- when MSHA
   conducts compliance samples and when they conduct abatement
   samples.  Specifically, what rule will cover that?  
                 Part 7100 A and B and part 9100 states that mine
   operators has to keep miners' respirable dust level at or
   below 2 milligrams and 1 milligram out-by the working faces
   for the part 90 miners.  Does MSHA plan to raise those
   compliance levels on sampling for miners' exposures?  If so,
   exactly where can miners find that specific standard in the
   proposed rule or in the preamble.  The specific sections in
   part 70 and 90 that was eliminated from title 30 should be
   re-entered into the record?  
                 Miners no longer have standards to rely on, and
   miners have no intention to eliminate the dust sampling
   program.  It's important to do compliance sampling often. 
   If not, the verified plan will fall off to the wayside. 
                 As a representative of thousands of miners, I
   have been asked to come before you today to ask you to go
   back to the table, fix the problems that I and many of the
   other miners today have raised, show us where these will be
   guaranteed black and white fixes, show us how this will be
   funded by the government so that we will not lose everything
   in the end, because we all know it's an election year. 
   Administration changes, all kinds of things can happen.  And
   truly do something that will end this deadly killer called
   the black lung disease.  Thank you. 
                 MR. NICHOLS:  Thank you, Dennis.  I think we
   understand your comments.  Joe Main has asked for some
   additional time to further comment on the proposals, and
   Joe, come on up. 
                 MR. MAIN:  I tell you, this whole dust rule's
   got me about wore out folks.  I don't know who else has been
   sleeping with this thing, but it's enough to drive a crazy
   man crazier as the saying goes.  I wanted to have an
   opportunity at the end of the day just to clarify some
   issues and to let you know we'll be dealing with additional
   issues as we go into the hearings and probably be spending
   some time on plan verification, I would say probably in
   Kentucky, and walking through that.  
                 I think one of the difficulties that we all had,
   which I expressed and some of the other miners expressed
   here is that there is such a vast volume of information
   contained in those proposals, that it almost blows the human
   mind to try to sit down in the course of 30 days to read
   that and figure that out.  And that's been one of our
   dilemmas.  And as Dennis and myself and Tom Wilson and Jimmy
   Lamont and Judy Woodlan our lawyer and everybody else, we've
   been trying to clarify all these issues that's came to us
   from our folks who have heard things in the news, who have
   read parts of the proposal and, you know, haven't had a
   chance to put it all together.  
                 And I do appreciate the opportunity, Ron, that
   you guys have shown us to sit down and asked a series of a
   lot of questions to try to get focus.  But nonetheless,
   everyone has to understand, there's a whole lot of miners
   out here that really don't understand this rule yet, and
   that bothers me, because it really is some very substantive
   changes.  And I read off real quickly.  There's probably,
   you know, 20 issues that's affected by this rule one way or
   the other.  And some good and some not so good, in our
   opinions.  
                 I think, too, that MSHA should not be surprised
   that there was not a great rush to go out here to support
   this package, for a number of reasons.  One is that there
   have been issues that the mineworkers and miners have had on
   the plate for reform for many, many years.  And we've not
   been bashful about those.  And we went to the Carter
   administration, and we went to the Reagan administration and
   we went to the Bush administration and to the Clinton
   administration trying to get those fixed, and it was, you
   know, a continual plea to fix those things.  
                 And I only speak through the voices of the
   miners.  And what I try to represent is what the miners put
   into my head through visits to mines and sitting down and
   discussing these.  So sometimes an issue will get labeled as
   a union issue or a Joe Main issue.  I'm here to tell you
   there's a whole lot of issues that miners claimed a stake to
   that I just speak on behalf of and for those that, you know
   want to get a misunderstanding of what's going on here. 
   These are the miners issues that we what to have on the
   record before it closes.  It's just a ton of positions and
   statements by the miner's that's going to reflect that.  And
   I think you will see that through out the hearing process. 
                 As Dennis finished up talking about, you know,
   the implementation of this proposal, there is an election
   coming, there is people going to change, and though there's
   certain people in government that I have come to trust and
   to respect when they say something's going to be done, to
   the extent they have the power to do that, there's different
   people I do believe that that's, you know, take it to the
   bank.  The problem is, myself and most of the folks sitting
   around here over the course of the rest of a lot folks'
   mining careers, we're not going to be here, and this is all
   going to be turned over for someone else to apply and
   interpret.
                 And to the extent that a lot of this package is
   contained in policy preamble and contained in discretion of
   the agency, even in the rules themselves, it would be wrong
   of me to tell my folks that I represent that they could
   trust that as being the standard, because I know better. 
   I've been through some experience and Marvin and I could
   share a lot of war stories here about a lot of those where
   things have changed.  
                 And I'm going to go back to 1980 when we came
   out of the same arena, just finished up a public hearing on
   comments, and the agency had announced a final rule and had
   announced these promises that they were going to implement
   on miner participation and developing the continuous
   monitor.  And to this day, I stand here and those are
   nonexistent.  And to this day, miners have asked me over and
   over again, Joe, when are we going to get this, when are we
   going to get that?  And I just keep saying, we're trying to
   convince the government here about what you folks really
   need and want to try to figure out some way to get that
   framed into people's mind.  
                 Because at the end of the day it's the miners
   who eat the dust and the miners who have been on that long
   list of victims that's, I don't know, hundreds of thousand
   long over the years that we've mined coal, and it's those
   miners that, who had their families affected that deserve
   some real stake in deciding how that coal mine is going to
   be run to get them out of that dust.  And so worker
   empowerment is really, it's not a rhetorical issue, it's a
   real issue that we believe needs to be captured by a good
   set of rules.  
                 And I was very disappointed to see that, at
   least in what we had thought was coming out of the advisory
   committee recommendations, that those were not captured.  We
   were disappointed in the fact that what we thought was laid
   out, I think a fairly decent script for the agency to move
   forward beefing up its role and then to actually take over
   the mine operator program, at the very least doing the
   frequency of sampling that they were doing, but we had hoped
   for more.  
                 And we'd also hoped for this magic continuous
   monitor that I swear has been so elusive over the years, to
   be brought in to where miners could actually see the dust
   levels generated in the workplace, and we all come to
   realize that we may not be able to use that for a compliance
   tool that is sure a helpful tool to give, empower those
   miners so they know what dust levels that they're in.  
                 And it's a powerful tool to empower the mine
   management folks at the mine to know, you know, when they're
   creating and generating dust that needs to be controlled. 
   I'm going to probably wrap up talking about the continuous
   monitor, but to get back to the policy issues, after the
   hearings closed, we didn't get the rules, and some amazing
   things happened.  There were some policy changes in this
   agency where decisions was made to reduce the actual dust
   inspections that MSHA was conducting at coal mines.  And I
   think that was probably around '82 -- I'll go back and I'm
   going to have that all sorted out before the record closes
   -- but on the heels of hearing all these miners talk about
   how bad this dust program was and we left it in the hands of
   the operators, did far less sampling, the agency made a
   policy decision to reduce dust sampling at coal mines.  
                 And that same policy decision that happened back
   then could easily happen two or three years down the road
   when someone else could say things are going better, we
   don't need to spend all this money sampling the dust
   environment.  And that's very troublesome.  
                 We've been there before and we do not want to
   repeat that bad decision that was made.  We talk about the
   ventilation regs, I know Dennis raised those earlier, and I
   remember when we were in a big debate over bleederless gobs,
   and that was sort of like one like engineering controls for
   longwalls that people just sort of wanted to stay away from
   in a way, but I remember the commitments made to our
   organization and to miners that, don't worry, we're never
   going to let those bleederless gobs get used in a gassy
   mine.  
                 In October of 1998, I had this petition for my
   vacation come across my desk, and Jeff Duncan when he was
   still with us, and we said, what the heck.  And it was a
   petition to raise the gas levels at a longwall mine to 4
   percent and using a what they called a purging process.  I
   don't know how many of you read that, and Marvin, you may
   have, but it never got finalized because much later, in
   November, the mine was closed down by a fire.  And we took a
   look at that mining plan, and low and behold, on a two-entry
   mining system in this country where an operator by his
   claims in a petition had got behind on development and went
   to MSHA and says, we need an approval to cut this panel off,
   and the agency did that, connected over to the tailgate side
   on a two-entry system, and they had a bleederless gob, which
   the inevitable was going to happen, it kept gassing off to
   the point that they now wanted a 4 percent standard instead
   of the -- they were operating on some scheme that I still
   never understood that they were having about 3 percent of
   methane load up on the face.  
                 Now I went back to the assurance that I had with
   the district manager, and the message I got is, that won't
   happen again. Well, it did happen the first time, after we
   were told it wouldn't happen in a situation like that.  And
   that's going to be revisited, I think that this last episode
   of the Willow Creek explosion that happened, but it was the
   same mine that all this happened at, the one that blew up
   last week.
                 So, you know, what this tells us, the history
   tells us that you cannot take for granted the words of folks
   in the government, that they be well-meaning,
   well-intentioned, to be the way things are.  And that's the
   reason that it has to be in the rule.  I know miners across
   the country have complained about trying to get something
   done at their coal mine, but they're told by the MSHA
   officials, well, if it's not black and white there, we can't
   do it.  And we know that.  We've heard that.  It's been a
   constant message.  
                 And understanding that, while we have a chance
   to influence what regulations come out, we shouldn't be dumb
   enough on our end to agree to standards that puts us in that
   gray area that does not give us clear-cut standards.  On
   respiratory protection, there's been a lot of discussion
   about that, and I have been troubled for quite some time and
   I've raised this with industry and I've raised it with the
   government that I think -- set aside the discussion on
   respirators for longwalls as alternative engineering
   controls.  We have a serious problem with our respiratory
   protection in this country for the normal miner who is on a
   section, whether it's a continuous mining section or a
   longwall, that we fail to have the kind of quality
   respiratory protection that we really need to implement
   Section 202(h) of the law.
                 And my belief is what we need to do is spend a
   lot of energy building a better respiratory protection
   system that's worker-friendly, that does work for the
   miners, that when we do go in and out of compliance, that
   there's something there that miners can actually wear.  And
   that is a standard by which the protection is not mandatory. 
   That is a section where the standard, rather, calls for the
   respiratory protection to be provided if the miner desires
   to use it.  And I think, as we said in the advisory
   committee, we've got to do a much better education job than
   what we've been doing on dust controls and using the
   respiratory systems. 
                 But we've got to give the miners something
   that's comfortable for them to wear.  I mean you look at a
   miner today running around where we almost got part of them
   in uniforms and suits like they are space people, and we
   need to rethink that model.  We don't need to be replacing
   engineering controls.  We need to be designing better
   quality respiratory protection to fit within the scheme of
   Section 202(h). 
                 With regard to continuous monitors, at the 1976
   convention of the mine workers in Cincinnati, Ohio, for a
   few of us who are still around, there was a lot of
   discussion about what it would take to fix the dust sampling
   program, and one of the issues that came out of that
   convention, which rounded up being a discussion point the
   '78 hearings, was the application of a continuous dust
   monitor in coal mines that would measure the dust on a
   constant basis and give miners a constant knowledge of what
   those dust levels were, for the obvious reason, miners want
   to know what dust they're in.  
                 And I think they're owed that, given the tragedy
   of this industry.  And so began the activity to build a
   continuous dust monitor, which started, I guess, actually in
   the late '80s -- or in the late '70s.  The pledge was made
   by the government in 1980 that we're going to aggressively
   pursue the development of that, and it has peaks and valley
   over the years.  It got attention again.  That was one of
   the main issues that was addressed at the 1991 congressional
   hearings.  There was a piece in the dust task force
   recommendations to build a continuous monitor.  
                 And both NIOSH and MSHA, I think, began to
   aggressively pursue that in the mid-'90s.  What was so
   disheartening -- and I have been involved in that process,
   and I think I'm as familiar as anybody is from the outside
   about what was going on -- but as we were closing the deal,
   as the saying goes, to finalize the development of a device
   that had proved to operate to the point that it could
   accurately reflect the dust levels, but it had failed
   because the machine just wasn't hardened enough to withstand
   the machinery.  
                 And I recall the meeting that we had in
   Washington, D.C., and it was in February of 1999, and the
   industry was there, Labor was there, NIOSH was there, MSHA
   was there.  And there was a whole discussion about where
   we're at with the testing and the status of that device. 
   And as the meeting completed, there was general consensus
   amongst all of that room that contracts needed to be
   developed to go back and harden those units to finalize the
   testing process.  But for some reason, that has had
   confusing answers since that February meeting.  We later
   found out that the government had abandoned the finalization
   of the development of the continuous monitors.  And we've
   heard different reasons of why that happened.  We heard
   different theories about where this whole thing was going. 
   But for somebody that's been around this debate for 20
   years, I am totally beside myself as to why, on the very
   edge of finalizing this device, that the government
   abandoned the final steps.  And I believe firmly that we
   knew enough out of the testing of those units that it's
   technologically feasible to do that.  I think the government
   has stated that, both NIOSH and MSHA.  
                 The fact is we just haven't got the units built
   and in machines.  It takes a regulation to pull that off. 
   And if the government hedges its bets and doesn't go that
   final step to require regulation to implement it, no miner
   out there will ever see that device.  Maybe as a test
   program somewhere in some mine.  But that continuous
   monitoring aspect that we thought was going to be part of
   the finality from the advisory committee and what we've
   hoped and put our trust in the government to build and get
   in the mines, we still don't have it in the year 2000.  
                 And I'm marveled, I'm one of these science nuts
   and I watch these little robots take air measurements on
   foreign planets -- I mean planets -- out in the universe,
   and I set back and say to myself, if we can do that, we
   can't finish up this dust monitor to monitor coal mine dust? 
   I mean there's just something illogical about, you know, the
   whole science of that.  We're going to be submitting
   documents to the record, one of which is going to be a
   letter from both myself and BCUA on positions taken with
   regard to the continuous dust monitor.  And I'll just read
   this one excerpt that was contained in a letter to both
   labor and industry. 
                 "The current model demonstrated that feasible
   technology exists for a continuous real time dust
   measurement instrument.  Further, the device was as accurate
   as the current measuring system and was used by miners and
   supervisors to gauge changes in dust levels and adjusting
   engineering controls."
                 That means something.  And it means more than, I
   think, what the proposals is giving it credit for.  And yes,
   we are very disappointed that we're here in the year 2000. 
   That was a trek we started 25 years ago, and we got to the
   edge, to the point where we're ready to deliver on that, and
   it disappears, and the government's now saying, "sometime
   down the road."  
                 The proposals with regard to sampling of miners
   and plan verifications, I think is confusing, and I was the
   first to admit, it took me a while, and the of gracious of
   Ron and a few others to, like, clear up how that process
   worked, and we tried to pass on to our folks, but I think
   there are some things that were said here today that still
   may be left in a state of confusion in some folks' minds,
   and I think it's important to clarify it.  I think it was
   Gene Davis that asked the question about, if that
   verification sample passes that 1.71 test and that's the
   first verification test, is the testing over for that MMU? 
   And the way I read the law, it is.  
                 And there is no other verification test, unless
   three or four things happen, and I forget exactly what all
   they are, but those were all discretionary decisions of the
   government to decide whether there's even any verification
   test to be applied.  There's no magic figure there that
   automatically says that you go back into plan verification I
   know of.  And I may be wrong on that.  
                 Now, having said that, that MMU has been, by one
   test, verified to be a test that will operate to protect
   that miner, with the backup being the bimonthly examination,
   which will only be six shifts a year out of, I think Red
   raised 900 shifts a year to mine.  And, you know, from the
   standpoint of does this make logical sense to have that kind
   of a system in place that you're placing all that guarantee
   on the limited dust sampling that will take place?  And that
   sample will only be a 480-minute sample.  It won't be a full
   shift sample, on the compliance sample that will be taken,
   regardless of the length of the shift that Red's now
   working, okay?  
                 And if you go step back and say, what was the
   advisory committee, when they crafted this plan, really
   thinking of?  What they were thinking of was a government
   takeover of the operator plan at the very least having, you
   know, the frequency of sampling, which was not six months --
   or six shifts a year, and not having one shift out-by in the
   coal mines, which is another major problem in itself that I
   think it totally unacceptable to miners and to the mine
   workers.  It was having a plan verification system that
   really worked, backup sampling by the operator, which we all
   agreed as part of the advisory committee was still a
   necessary component, not for compliance sampling but the
   backup verification.  
                 There would be a continuous monitoring system
   here to help fill those voids.  And if you looked at that
   whole scheme, and what we wound up with in this rule, when I
   look back and say we haven't got that continuous monitor
   piece, we haven't got the operator backup plan verification
   piece, we're down to six samples, and if they make it
   they're gonna waive one verification test.  And that's, I'm
   just being honest, that's just not where we thought that
   this rule would ever wind up. 
                 And I think a lot of miners, like I say, don't
   understand that, and it's because of the complexities of the
   rule.  But it's a process by which, if you step back and
   say, is this package we have today worth trading it out for
   what we currently have, with the changes that have been
   made, and realizing in my own heart that this is the last
   reform that's going to take place in coal dust sampling
   throughout the rest of these miners' careers?  I say the
   answer is no.  
                 And the reason we filed that lawsuit, again, was
   to force out some specific changes that miners wanted.  Not
   just notations in a preamble saying we're doing all these
   things, which takes care of addressing the union's issues
   here.  It was to get meaningful changes that miners have
   sought for many, many years.  So at the end, if there was
   folks that was disappointed about what we may have viewed
   about this proposal, I think we have to look at the context
   of what the expectations were and the hard work that was put
   into this whole operation for a quarter of a century by the
   union and the miners to get there, and this is, no, this is
   not the finish line that we had planned to get to.  
                 With regard to the MSHA takeover, I remember one
   conversation, I think this was at the advisory committee, it
   was in Lexington, and I think, Ron, you had proposed a
   monthly scheme, if my memory's correct on -- and I'll go
   back and figure that out for clarification purposes for both
   of us -- but you had said what about once a month, 12
   samples a year?  And that was rejected by the advisory
   committee as not being sufficient enough.  I mean I think
   there's a lot of history where the advisory committee was on
   record saying no, we did not want to go in that direction.  
                 As far as PELLs, one of the testifiers pointed
   out that, you know, there was discussion about going to one
   milligram, and I know there's this proposal that's been
   hanging out there for three years that calls for a
   1-milligram standard.  
                 This is the direction of which the advisory
   committee had sought to go.  The advisory committee had
   addressed this issue very clearly about adjusting the PELL
   upwards for this, and I forget what the magic words is we
   called this, but, uncertainty, okay?  And the advisory
   committee said no.  And basically what they said, two is
   two, one is one, and we should be doing that.  
                 And I think from the miners' standpoint, it
   makes all the sense in the world that we should not be
   passing two, that we should not be passing one, and that we
   should be ratcheting that backwards as opposed to upwards. 
   And one way to ratchet it backwards is to listen to what the
   miners had to say, samples always for the full shift.  Use
   that to determine what our full measurement is, and thereby,
   you'll get some automatic readjustments downward with people
   that have greater exposure.  
                 So many more things I'll address at some of the
   other hearing coming up, but I just wanted to give you a
   good, you know, understanding of what this is all about. 
   This is not that we're upset with any individual or thing,
   this is real policy here that's about to be made that
   affects these miners for the rest of their life, and there's
   real issues that miners have put on the table that they have
   expected the government to do on their behalf.  And this is,
   like I say, the third trip.  I mean we're wearing ourselves
   out talking about it. 
                 And we do envision the days that we'll have the
   4B4s back again making policy decisions, cutting inspection
   down to one or two samples a year.  It's happened before and
   it'll happen again.  With that, I'll be presenting a lot
   more documents in the record and be providing some more
   information throughout the hearing process. 
                 MR. NICHOLS:  Okay.  Thank you, Joe.  That's the
   last of the people we had signed up to make presentations,
   but I believe there's some people that came in after lunch
   maybe to just talk about the plan verification rules.  If
   that's the case, then if you would sign up, or anybody else
   that wants to make any comments on these two proposals,
   we'll be glad to take those.  Let's take a break until, say,
   1:40 and come back and see if there are those that want to
   make presentations. 
                 (There was a brief recess.)
                 MR. MYER:  Mr. Chairman, my name's Fred Myer.  I
   feel honored to be here to talk to you all.  I've spent 47
   years on the ground working for Consolidation Coal Company. 
   Most of my generation has either had black lung or got
   killed in the coal mine.  We are here today to ask you to
   help us because you're going to make recommendations to
   other people, and we're asking to help us with these
   recommendations.  Black lung is a serious disease to have. 
   The reason I know that is some of friends have had black
   lung, and they're not here to be able to talk to you all.  
                 Whenever you go, whenever you get the
   opportunity, there's a General Hospital over here, there's a
   Ruby Hospital over here.  You need to go and just visit and
   see these people with these black lung problems.  It's not
   very funny.  It's serious.  
                 And you've got a thing going on here for 31
   years, we've been making appeals to you all.  It seems like
   we're knocking on the wall but we're not getting through. 
   It's -- the ball is in your hands, because whenever you
   leave this committee, you're going to make recommendations
   that we're going to have to abide by .  For 31 years, we've
   been abiding by it, we've been doing what's right, and we've
   been abiding by the law, but now it's time for you all to
   help us a little bit.  
                 The coal miners have a saying, the squeaky wheel
   gets the grease.  You got the squeaky wheel out here in the
   audience appealing to you all to help us.  Joe Main has made
   his plea time and time again.  Dennis O'Dell has made his
   plea.  But we need your help.  It's time for the government
   to take a stand.  We're not in Poland.  We're not in Russia. 
   We're in the United States.  If we can't control this
   problem, who in the name of God can?  
                 The Bible says, we have not because we ask not. 
   Today, we are asking.  We're not demanding nothing.  We're
   asking and we're pleading for your help.  And I want to take
   this opportunity to say thank you for allowing me to talk. 
                 MR. NICHOLS:  Thank you, Fred.  That's all the
   people we have signed up to speak.  Is there anyone else
   that would like to give testimony?  Some of us will be here
   until 5:30 today and until noon tomorrow.  The hearing will
   remain open until then, until noon tomorrow.  We're going to
   take a break now until 3 o'clock, so thanks, thanks for your
   participation. 
                 (Whereupon, at 2:00 p.m., a recess was taken
   until 3:00 p.m. this same day.)
                 MR. SCHELL:  It's 3 o'clock, and we are
   reconvening these public hearings on single sample
   measurements and plan verification.  Is there anybody in
   attendance that would like to address the panel at this
   time?  Let the record show that there was no response.  We
   will recess until 4 o'clock. 
            (Whereupon, at 3:00 p.m., a recess was taken until
   4:00 p.m. this same day.)
                 MR. NICHOLS:  This is Marvin Nichols.  We're
   back on the record.  It's 4 o'clock.  There's still no one
   present to present testimony, so we will keep the record
   open until 5 o'clock today and reopen again in the morning
   at 8:30 and keep it open until noon tomorrow. 
                 (Whereupon, at 5:00 p.m., the hearing in the
   above-entitled matter was adjourned until August 8, 2000, at
   8:30 a.m.)
   //
   //                       REPORTER'S CERTIFICATE
   
   CASE TITLE:        MSHA AND NIOSH JOINT SINGLE SAMPLE PROPOSED
             RULE 
   HEARING DATE:      August 7, 2000
   LOCATION: Morgantown, West Virginia
   
       I hereby certify that the proceedings and evidence
   are contained fully and accurately on the tapes and notes
   reported by me at the hearing in the above case before the
   United States Department of Labor.
   
   
             Date:  August 7, 2000
   
                Debra Anderson    
             Official Reporter
             Heritage Reporting Corporation
             Suite 600
             1220 L Street, N. W.
             Washington, D. C.  20005-4018